Page:The Green Bag (1889–1914), Volume 16.pdf/653

 598

territory, who conducts himself properly and who has been furnished with the proper cre dentials, is that to which prisoners of war are entitled. In no case can he possibly be treated as a spy. "An individual can only be considered a spy if, acting clandestinely, ot under false pretences, he obtains, or seems to obtain, information in the zone of operations of a belligerent, with the intention of commrnicating it to the hostile party."1 The bus iness of a newspaper correspondent, at least as usually conducted, answers none of these requirements. In fact this definition of a spy adopted by the Hague Conference—ex pressiv, or at least impliedly, excludes them from this category. But it may be said that the use of wireless telegraphy introduces a new factor into this problem. War correspondents have hitherto been more or less subject to control, and it is clearly within the right of a belligerent either to exclude them altogether from belli gerent territory or to place them under such supervision as may be necessary in order to control their actions. But the invention of wireless telegraphy has made it possible for them, under certain circumstances, to operate either on the high seas or on neutral terri tory2 to an extent which was impossible be fore. If the use of wireless telegraphy on the high seas may be injurious to belligerent intere-ts, might we not also conceive cases in which ir vould be equally injurious if operated 'Art. 29 of the "Regulators Respecting the Laws and Customs of War on Land." adopted by The Hague Conference. See Hplls op. cit., p. 153 Cf. the definitions of a spy contained in the Amer ican Instructions (§88). 'and the Rules of the Brussells Conference (§19). They are couched in terms almost identical with those employed by The Hague Conference. 1 It has been reported on newspaper authority that the Russians have been trying to use the Chinese port of Che-Foo for the transmission of wireless messages from Port Arthur. See e. g.. New York Times for June 9 and n. 1904. This is a case of the use of neutral territory by a belli gerent for a military purpose, but newspaper cor respondents might conceivably make similar use of a neutral station.

on neutral soil? Now would any one go so far as to maintain that a war correspondent, operating either by means of wireless teleg raphy or any other system on neutral terri tory, could be seized and treated as a spy, or even held as a prisoner of war? A belligerent has undoubtedly the right to prohibit or pre vent the transmission of cable messages (and wireless telegraphy is only a means of accel erating the transmission of messages) on bel ligerent territory (including the three mile limit). So he would also probably have the right to interrupt submarine telegraphic cab les extending between enemy and neutral ter ritory at any point within hte own territorial jurisdiction or within that of the enemy. But lu- would have no right to interfere with sub marine telegraphic communication between two neutral territories.' But in view of the possible injury which may result to belligerents from the use of wireless telegraphy on the high seas or on neutral territory, some concessions should perhaps be made to military necessity pro vided neutral rights and interests are not seriously impaired. Interference with wire less messages on the high seas might under certain circumstances be permitted to bellig erents, as also the seizure and confiscation of wireless telegraphy apparatus as contraband of war,4 and neutrals should certainly refuse by Captain Stockton of the United States Xavy. and issued as General Orders No. SSI on June 27, 1900. For text, see App. VI. in Wilson anct Tucker. Cf. the rules on submarine cables adopted by the Institute of International Law in Annuaire, XIX.. p. 331. 4 It may be noted that M. Fillet, Professor of International Law at the University of Paris, is quoted as having expressed a similar opinion in respect to the liability to seizure 'and confiscation of wireless telegraphy apparatus as contraband of war. See Army and Navy Journal for June 4. 1904. The same opinion is expressed in the Saturday Кпчеы- for April 23, 1004. It is worthy of especial notice in this connection that Russia has placed telephone and telegraph material in her list of contraband of war. Lawrence (War and Neutrality in the Гаг P.ast. p. 92) suggests that "power should be given by
 * See Art. 5 of the Naval War Code, prepared