CO885-(13-15) — Page 544

10347.

No. 169.

(GENERAL.)

LAW OFFICERS TO FOREIGN OFFICE.

Royal Courts of Justice,

May 7, 1898.

MY LORD,

WE were honoured with your Lordship's commands, signified in Mr. F. H. Villiers's letter of the 30th ultimo, transmitting to us certain papers in connection with the present hostilities between Spain and the United States of America, and requesting us to favour your Lordship with our opinion as to the rights of use, in time of war, of neutral telegraph cables by belligerents or their agents, and as to the extent

of the control and interference, if any, which a neutral Government should exercise over the dispatch of messages.

We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report

That there is little or no authority on the subject of the obligations of a neutral Power with regard to the use of telegraphic lines or cables by belligerents.

It appears to us that such use should be treated on the analogy of the principles applied to the carriage of the despatches of a belligerent. Such despatches are contra- band of war, and may be seized by the other belligerent with the further consequence of, in some cases, the forfeiture of the vessel if the despatches were knowingly carried. But there is no obligation on the neutral State to prevent the carriage by its subjects of such despatches; like other contraband of war, they may be carried subject to the risk of capture.

1. We think that there is, therefore, no general obligation by international law on the part of a neutral Government to prevent the transmission by its subjects, or from its territories, of the messages of belligerents by telegraphic lines or cables.

Such messages

may be carried subject to the risk that the other belligerent may protect himself by cutting the cable on the high seas, or in the enemy's territorial waters.

pon

the whole we think, though the question is one of more difficulty, that for this

purpose no distinction should be drawn between cables purely private and cables under the control of a Government Department.

The general rule is, of course, that a neutral Government should not carry contra- band of war for one of the belligerents. But where cables or telegraph lines are under the control of a Government Department which, as a matter of regular business, transmits messages for every one, we cannot think that it is its duty, by international law, to establish a censorship so as to prevent the transmission of belligerents' messages. In practice this would be difficult; or impossible, and we think that the principle on which a neutral Government stepping out of its way to convey contraband of war is held to be guilty of a breach of neutrality has no application to a case in which it merely continues to transinit for all comers, in the ordinary way of business, either letters or telegraphic messages.

Of late years, it has not been the practice for a belligerent to seize or examine mail bags transmitted in the ordinary course of post.

2. We think. however, that. in the case of a belligerent cruiser putting into one of the ports of a neutral l'ower, there is an exception to the general rule above suggested. It is a term of her admission that she shall not use the neutral port in furtherance of hostile operations. We, therefore, think that the neutral Government should prevent, so far as practicable and authorized by municipal law, the use even of a telegraph worked by a commercial Company for the transmission from a neutral port, by or on behalf of such a cruiser, of messages in cypher, or of other messages, the object of which is to direct or influence warlike operations.

But we do not think that a neutral Government is bound, even in this case, to object to the transmission of messages which have no relation to the proceedings of the belligerents, or of messages not in cypher, the object of which is to give a narrative of past operations, bonâ fide intended for general publication as news.

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