dispatch would be in evident support of the neutral view. Under such circumstances the position of the neutral authorities is clearly within their right.

The refusal to transmit portions of the message raises the question of the right of the authorities to make changes in a message received for transmission from the representative of a state. Such action, without previous notice and consent of the commander, might make changes in the intent of the communication of such nature as to distinctly injure his cause.

As even entry to the neutral port is a privilege and not a right, and as any commercial transaction with those upon the shore is a privilege also, it is entirely within the rights of the neutral to regulate this communication.

Conclusion. Accordingly, the neutral authorities have full right to prohibit the transmission of any or all messages, and unless the neutral authorities and the commander of the belligerent ship can agree upon the form of the message, the neutral authorities may even absolutely refuse to allow its transmission.

The position of State Y is in all cases correct, though State Y would have no authority to mutilate or change a message already received.

SITUATION VII.

During the war between the United States and State X, the senior officer of the United States fleet in a certain region discovers that newspaper correspondents are sending messages by wireless telegraphy. He has not authorized the use of the wireless telegraph by the newspaper correspondents, and its use may interfere with his military plans.

(a) What treatment should these correspondents receive?

(b) Granting that newspaper correspondents will be allowed in the field of operations, what regulations should govern them?

SOLUTION.

(a) In the absence of any prohibition the newspaper correspondents are entitled to use such legitimate means as the wireless telegraph for the transmission of news and are entitled to the ordinary treatment given to newspaper correspondents.

(b) If newspaper correspondents are allowed within the field of operations, the correspondents and the agencies of transmission of news should be under the absolute control of the commanding officer in that military area. (For general scope of regulations see p. 115.)

NOTES ON SITUATION VII.

(a) What treatment should the correspondents described in this situation receive?

Russian Declaration, 1904.-During the Russo-Japanese war in 1904, in April, there was issued by Admiral Alexieff a circular in regard to the use of new means of communication by newspaper correspondents. This was particularly aimed at certain neutral press boats which were using wireless telegraph in transmitting news of the war. The circular handed by the Russian diplomatic agents to the foreign offices of various states was reported as follows: "I am instructed by my Government, in order that there may be no misunderstanding, to inform your excellency

that the lieutenant of His Imperial Majesty in the Far East has just made the following declaration: In case neutral vessels, having on board correspondents who may communicate news to the enemy by means of improved apparatus not yet provided for by existing conventions, should be arrested off Kwangtung, or within the zone of operations of the Russian fleet, such correspondents shall be regarded as spies, and the vessels provided with such apparatus shall be seized as lawful prizes."

It should be observed that the Russian Government merely informs other governments that Admiral Alexieff has issued this Declaration. The Russian Government does not assert that it proposes permanently to support the position taken by its lieutenant.

The French text of the Declaration was as follows:

Dans le cas où des vapeurs neutres, ayant à bord des correspondants qui communiqueraient à l'ennemi des nouvelles de guerre au moyen d'appareils perfectionnés n'étant pas encore prévus par les conventions existantes seraient arrêtés auprès de la côte du Kuantoung où dans la zone des opérations de la flotte russe-les correspondants seront envisagés comme espions et les vapeurs, munis d'appareils de télégraphie sans filsaisis en qualité de prise de guerre.

Treatment of vessels using wireless telegraph.-Considering the provisions of this circular in the reverse order of their statement, the first matter is the treatment of the vessels. The implication is that the equipment with wireless telegraphic outfit by a neutral vessel "within the zone of operations" is sufficient ground for the seizure of the vessel as lawful prize. If this means that the ordinary rules of prize courts hold for such a vessel, it is difficult to understand how an adjudication can be made. If the circular means that such vessels, when actually engaged in communicating information of a military character to the enemy, are guilty of unneutral service and are liable to the penalties consequent upon such service, the provision is clear, for such would be the offense, and the regular penalty would be confiscation of vessel and equipment.

The attempt to bring under the rules of contraband and violation of blockade many forms of action in time of war which have only a remote relation to either has led to confusion, which shows the need of further elucidation

CORRESPONDENTS AS SPIES.

107

of the principles of unneutral service which involves actual participation by service in behalf of the enemy.

Spies. The treatment of the correspondents using wireless telegraphy as spies raises further questions.

The treatment of a captured spy is usually summary and extreme, and while article 30 of the Hague Convention respecting the Laws and Customs of War on Land prescribes that "a Spy taken in the act can not be punished without previous trial," yet, the penalty is usually extreme. If, then, the proclamation of the Russian admiral is admitted as in accord with practice, the position of a newspaper correspondent would be exceedingly dangerous when news is communicated to the enemy, since he might become liable to treatment as a spy.

Both Russia and Japan are, however, parties to the above-mentioned convention, which defines the term “spy,” in article 29, as follows:

An individual can only be considered a spy if, acting clandestinely, or on false pretenses, he obtains, or seeks to obtain, information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

Thus, soldiers not in disguise, who have penetrated into the zone of operations of a hostile army to obtain information, are not considered as spies. Similarly the following are not considered as spies: Soldiers or civilians, carrying out their mission openly, charged with the delivery of dispatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver dispathes, and generally to maintain communication between the various parts of an army or a territory.

This rule is in accord with general practice, both for land and naval warfare. There is no basis upon which an officer in the military service can set up a new definition. The fact that a news correspondent uses in transmitting communications "improved apparatus not yet provided for by existing conventions" does not constitute him a spy. It is not the means of communication but the nature of the act which determines the status of a spy. The nature of the act is clearly set forth in the Hague Convention above quoted, and any person, whether newspaper correspondent or other, guilty of such an act, whatever the means used, is a spy without further proclamation or discussion.

Conclusion as to Russian declaration. The conclusion would be, therefore, that a vessel is not liable to seizure as prize merely from the fact of having on board "improved apparatus" for communicating news, and that correspondents using such "improved apparatus" are not liable from the simple fact of its use to treatment as spies.

On the other hand, newspaper correspondents who act in such manner as to bring themselves under the definition of spies are liable to treatment as such without special notification in the same manner as any other person. The vessel concerned in transmitting such information, together with its equipment for such purpose, is undoubtedly liable to the penalty of unneutral service, which is confiscation.

It is not possible to defend the position assumed in the Russian circular in its present extreme form. As Kebedgy

says,

L'emploi de la télégraphie sans fil par des correspondants de journaux à la guerre a posé une question qui mérite d'être étudiée de près. Mais nous ne pensons pas qu'on pourra jamais approuver la décision de traiter ces correspondants comme des espions. (Revue de Droit International, VI, p. 451.)

The manifest intent of the circular to control the action of press agents and press boats within the zone of hostile operations is, however, proper in view of the danger to the belligerent which may follow unrestricted communi

cations.

Control of newspaper correspondents. Various regulations have from time to time been issued which affect newspaper correspondents.

The Hague Convention respecting the Laws and Customs on Land, provides:

ARTICLE XIII. Individuals who follow an army without directly belonging to it, such as newspaper correspondents and reporters, sutlers, contractors, who fall into the enemy's hands, and whom the latter think fit to detain, have a right to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying.

Instructions for the Government of Armies of the United States in the Field prvoide:

ARTICLE 50. Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured may be made prisoners of war and be detained as such.