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ESTABLISHMENT OR USE ON NEUTRAL TERRITORY OF APPARATUS FOR COMMUNICATION

WITH BELLIGERENT FORCES-NEUTRAL PROHIBITED FROM ALLOWING.

A neutral Power must not allow [belligerents to(a) Erect on its territory a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;

(b) Use any installation of this kind established by them before the war on its territory for purely military purposes, and which has not been opened for the service of public messages.]-Hague Convention V, 1907, Article 5.

The application of science to warfare has been wonderfully exemplified in the present struggle, chiefly on the Japanese side. The beleaguered garrison of Port Arthur, however, appear to have utilised a marvellous invention in a clever fashion. They have installed a wireless telegraphy apparatus on one of the seaward-looking hills near the town, and from thence have got into touch with a receiving station at Chifu, seventy-seven miles away on the Chinese side of the Gulf of Pechili. They are thus enabled to communicate, in spite of the blockade, with their Government at home and their comrades in the field. The question at once arises whether the neutral power ought not to prevent the receipt of such messages on its territory. The question is a new one, but if we follow the analogy of messages sent by submarine cables there can not be much doubt as to the answer. During the war between America and Spain in 1898 the British authorities refused a request from the United States for permission to land at Hong-Kong a cable which the American authorities proposed to lay from Manila, then in their military occupation, and to use for the purposes of their operations against Spanish territory. The refusal was based upon the ground that to grant such facilities would be a breach of neutrality. The Government of Washington acquiesced in the decision, which was given on the advice of the law officers of the Crown, and was followed by their own Attorney-General in 1899. In the course of their naval operations around Cuba they cut several cables which connected places held by the Spanish forces with neutral territory and though after the war compensation to the extent of the actual damage suffered was voted by Congress to neutral owners, it was granted as a matter of grace and equity and not as of right. The principles underlying these incidents are twofold. The first is that belligerents have a right to prevent messages relating to the war from being sent by their enemies over means of communication which are partly in belligerent and partly in neutral territory, and to this end they may destroy neutral property at the bottom of

the ocean, if there is no other means of stopping the intercourse. The second is that it is a violation of neutrality to allow facilities to one belligerent for communicating by means of neutral territory between his forces in the field and his Government at home, or his military and naval commanders in other parts of the theatre of operations. The application of this last to the case of the wireless receiving station erected by the Russians at the Chinese port of Chifu is obvious. The nature of wireless telegraphy prevents the application of the first. It was not till the end of August that the Chinese authorities awoke to the obligations of neutrality and demolished the station.

Lawrence, War and Neutrality in the Far East, pp. 218-220.

Of course a neutral state must not allow a belligerent to have in its territory an establishment of his own for postal or telegraphic service, as Russia was too long allowed by China to have a station near Chifu for maintaining wireless communication between Port Arthur, beseiged, and the outer world.

Westlake, vol. 2, p. 254.

Finally we may say that neutral powers are under an obligation to prevent the use of any part of their territory as an information station by a belligerent. This was recognized by the Second Hague Conference when in its Convention on State Neutrality in Land Warfare it forbade belligerents to erect on neutral territory "a wireless telegraphy station or any apparatus intended to serve as a means of communication with the belligerent forces on land or sea, or to make use of any installation of this kind established by them before the war on the territory of a neutral power, for purely military purposes and not previously opened for the service of public messages." The Convention on State Neutrality in Sea Warfare applied to neutral ports and waters the prohibition against the erection by a belligerent of wireless telegraphy stations or similar means of communicating with its land or sea forces. Both Conventions declare that a neutral government ought not to allow any of the acts referred to above: but the first left it free "to forbid or restrict the employment on behalf of belligerents of telegraph or telephone cables or of wireless telegraphy apparatus, whether belonging to it or to companies or to private individuals." If it took prohibitive measures or laid down restrictions, it was bound to apply them impartially to both belligerents, and to see that companies and private owners did the same. The effect of all these provisions when taken together is to draw a broad line of distinction between means of sending information owned and controlled by the belligerent himself on neutral territory or in neutral territorial waters, and similar means owned and controlled by the neutral state or by private persons and companies within its jurisdiction. Neutral governments are bound to prevent the erection of the former during the war, and the use of anything of the kind established before the war and not previously opened to the public for the transmission of messages. The latter they are free to deal with as they please on the sole condition that they act impartially as between the belligerents. Two recent cases will illustrate the difference. In 1904. during the siege of Port Arthur, the Russians erected a wireless telegraphy station in the neutral Chinese port of Chefoo, and

thus established communication with the beleagured fortress. Such an act is now expressly forbidden, and the duty of preventing it laid on the neutral government.

Lawrence, pp. 646, 647.

In contradistinction to the practice of the eighteenth century, the duty of impartiality must nowadays prevent a neutral from permitting belligerents to occupy a neutral fortress or any other part of neutral territory. If a treaty previously entered into stipulates such occupation, it cannot be granted without violation of neutrality. On the contrary, the neutral must even use force to prevent belligerents from occupying any part of his neutral territory.

Oppenheim, vol. 2, p. 394.

The case is different when a belligerent intends to arrange the transmitting of messages through a submarine cable purposely laid over neutral terrritory or through telegraph and telephone wires purposely erected on neutral territory. This would seem to be an abuse of neutral territory, and the neutral must prevent it. Accordingly, when in 1870, during the Franco-German war, France in-tended to lay a telegraph cable from Dunkirk to the North of France, the cable to go acress the Channel to England and from there back to France, Great Britain refused her consent on account of her neutrality. And again in 1898, during war between Spain and the United States of America, when the latter intended to land at Hong Kong a cable proposed to be laid from Manila, Great Britain. refused her consent.

Oppenheim, vol. 2, p. 436.

Exception.

The question as to whether such occupation [of neutral territory] on the part of a belligerent would be excusable in case of extreme necessity on account of the neutral's inability to prevent the other belligerent from making use of the neutral territory as a base for his military operations must, I think, be answered in the affirmative, since an extreme case of necessity in the interest of self-preservation must be considered as an excuse.

Oppenheim, vol. 2, pp. 394. 395.

After the destruction of the Spanish fleef at Manila in May, 1898, Admiral Dewey obtained possession of the Philippines end of the cable of the Hongkong and Manila Telegraph Company, which held its concession from Spain on condition that it should not send telegrams when forbidden by the Spanish Government to do so. Acting under this clause, the Spanish Government ordered the company to cease working the cable at Hongkong, and the company was obliged to suspend operations. Under these circumstances, the United States sought from the British Government permission for the landing at Hongkong of a new cable from the Philippines, to be constructed by an American company. Lord Salisbury replied, after consultation with the law officers of the Crown, that it had been decided that the British Government was not at liberty to comply with the request of the United States.

Moore's Digest, vol. vi, p. 940; For Rel. 1898, 976-980.

55565-18- 4

FORMING CORPS AND OPENING RECRUITING AGENCIES ON NEUTRAL TERRITORYNEUTRAL PROHIBITED FROM ALLOWING,

A neutral Power must not allow [corps of combatants to be formed nor recruiting agencies to be opened on its territory to assist the belligerents.]-Hague Convention

Article 5.

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T. 1907.

A neutral State which is desirous of remaining on terms of peace and friendship with the belligerents, and of enjoying the rights of neutrality, must * exercise vigilence to prevent its territory from becoming a center of organization or point of departure for hostile expeditions against one or both of the belligerents.

Institute, 1875 pp. 12, 13.

*

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These duties of neutrality extend not only to preventing the enlistment of men in neutral territory, but also to the general sanctity of neutral jurisdiction, by redressing all injuries which one belligerent may commit upon the other within its limits.

Halleck, p. 516.

*

The practice of neutrals to furnish troops to belligerents, or to allow them to enlist troops on neutral grounds, was formerly common, and allowed. This custom has now a lingering existence: it is forbidden in some countries by law, and is justly regarded as a violation of neutrality.

Woolsey, 279, 280.

The principle that it is incumbent on the neutral sovereign to prohibit the levy of bodies of men within his dominions for the service of a belligerent, which was gradually becoming authoritative during the eighteenth century, is now fully recognized as the foundation of a duty. And its application extends to isolated instances when the circumstances are such as to lead to serious harm being done to a friendly nation.

Hall, p. 622.

In the case of an expedition being organized in and starting from neutral ground, a violation of neutrality may take place without the men of whom it is composed being armed at the moment of leaving. In 1828, a body of troops in the service of Dona Maria, who had been driven out of Portugal, took refuge in England. They remained for some time an organized body under military officers. In the beginning of 1829 they embarked in four vessels, nominally for Brazil, but in fact for Terceira, an island belonging to Portugal. In order to avoid the arrest of the expedition in England, the arms

intended for it had been sent as merchandise from a port other than that from which the men started. The English government considered that as the men were soldiers, although unarmed, they constituted a true expedition, and a small squadron was placed in the neighborhood of Terceira to prevent a landing from being effected. The vessels were stopped within Portuguese waters, and were escorted back to Europe. The British government interfered so thoroughly at the wrong time and in the wrong manner, that in curing a breach of its own neutrality it was drawn into violating the sovereignty of Portugal. But on the main point, as to the character of the expedition, it was no less distinctly right than in its methods it was wrong.

Hall, pp. 630, 631, Hansard, N. S. xxiii, 738-81, and xxiv, 126–214; Bulwer's
Life of Lord Palmerston, i, 301–2.

** no demand is made on neutral states for more than the prevention of such enlistment on their territory as would amount to an unneutral use of it.

Westlake, vol. 2, p. 195.

Creating or recruiting a force to be employed in a war is clearly an operation of that war; and when it is done on neutral soil, either by a belligerent power or by private sympathisers, it is clearly a usurpation of the authority of the neutral state by or on behalf of the belligerent. On both grounds therefore it is a neutral duty of that state not to permit in its territory any thing which forms or is intended to form a part of such creation or recruiting of a force, even though it be only the enlisting of a single recruit. To enlist more, and to drill, arm and organise them, would merely be to take further steps in the same line of conduct.

Westlake, vol. 2, p. 210.

Exception.

Belligerent subjects who go home to perform their military duties do not fall within the scope of this doctrine. Their obligation has not been formed within the neutral territory which they leave, and it justifies their intention to take part in their country's service. Their consuls assist without offence in making the necessary arrangements for their return.

Westlake, vol. 2, p. 210.

They [neutrals] are also bound to prevent recruitment of men for the forces of either belligerent in their land territory. Agencies for that purpose may not be opened, nor corps of combatants formed. The pronouncement of the Second Hague Conference in this sense. registered the triumph of an enlightened opinion which had been gathering force for two hundred years. Vattel in the middle of the eighteenth century surrounded with conditions the old freedom on the part of the neutral to permit belligerent levies in its territory. After him came publicists who condemned such permission in any circumstances. Gradually the practice ceased in its cruder form; but the rulers of small states sometimes covenanted to supply larger powers with a certain number of soldiers. At length in 1859 Switzerland, the last state to maintain contingents in foreign armies, con

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