and telephones on his territory.1 As State telegrams are as a rule transmitted in cipher, there is no possibility of controlling them, and it will hardly be possible to maintain that a neutral ought not to admit State telegrams in cipher despatched by belligerents. Messages sent by telephone are controllable, and so are telegrams in ordinary language. But it cannot be said that there is as yet a generally recognised duty of neutrals to control telephone messages and telegrams in ordinary language so as to be able to prevent information to belligerents.2 The case is different when a belligerent intends to arrange the transmitting of messages through a submarine cable purposely laid over neutral territory, 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 intended to lay a telegraph cable from Dunkirk to the North of France, the cable to go across 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.3 (4) During the Russo-Japanese War, in 1904, the question arose whether a neutral can allow his territory to be used for the purpose of wireless 1 See Scholz, l.c., pp. 7-11, and Calvo, IV. §§ 2640-2641. 2 See, however, the rule 5, adopted by the Institute of International Law-see above, § 214concerning submarine telegraph cables in time of war:-"Il est VOL. II. entendu que la liberté de l'état neutre de transmettre des dépêches n'implique pas la faculté d'en user ou d'en permettre l'usage mani festement pour prêter assistance à l'un des belligérants." 3 See Lawrence, War, p. 219. CC telegraphy in the interest or the service of belligerents, for during the siege of Port Arthur the Russians installed an apparatus for wireless telegraphy in Chifu and communicated thereby with the besieged. The opinion would seem to be general that a neutral must prevent such an abuse of his territory. On the other hand, a neutral is certainly not obliged to prevent his subjects from giving information to belligerents by way of wireless telegraphy, an apparatus being installed on a neutral merchantman. Such individuals run, however, the risk of being punished as spies, provided they act clandestinely or under false pretences, and the vessel concerned runs the risk of being captured and confiscated. It must be specially observed that newspaper correspondents making use of wireless telegraphy from on board of neutral merchantmen for the purpose of sending news to their papers, cannot be treated as spies, and the merchantmen concerned cannot be confiscated, although belligerents need by no means allow the presence of such vessels at the theatre of war. Of course, an individual may be at the same time a correspondent for a neutral paper and a spy, and he may then be punished. 4 1 See Lawrence, War, p. 218. 2 See above, § 160. 3 See Lawrence, War, pp. 84-88. 4 Thus during the RussoJapanese War the " Haimun," a vessel fitted up with a wireless telegraphy apparatus for the service of the "Times," was ordered away by the Japanese. VIII VIOLATION OF NEUTRALITY Hall, §§ 227-229-Lawrence, §§ 252 and 258-Phillimore, III. §§ 151A1518-Taylor, §§ 630 and 642-Wharton, III. §§ 402, 402A-Wheaton, §§ 429-433-Bluntschli, §§ 778-782-Heffter, § 146— Geffcken in Holtzendorff, IV. pp. 667-676, 700-709-Ullmann, § 164-Bonfils, No. 1476-Rivier, II. pp. 394-395-Calvo, IV. §§ 2654-2666-Fiore, III. Nos. 1567-1570-Martens, II. § 138Kleen, I. § 25-Dupuis, Nos. 332-337. of narrower the wider § 357. Many writers who speak of violation of Violation neutrality treat under this head only of violations of Neutrality the duty of impartiality incumbent upon neutrals. in the And indeed such violations only are meant, if one and in speaks of violation of neutrality in the narrower sense sense of of the term. However, it is necessary for obvious the Term. reasons to discuss not only violations of the duty of impartiality of neutrals, but violations of all duties deriving from neutrality, whether they are incumbent upon neutrals or upon belligerents. In the wider sense of the term violation of neutrality comprises, therefore, every performance or omission of an act contrary to the duty of a neutral towards either belligerent as well as contrary to the duty of either belligerent towards a neutral. Everywhere in this treatise the term is used in its wider sense. in contra to End of Neutrality. § 358. Violation of neutrality must not be con- Violation founded with the ending of neutrality,1 for neither a distinction violation on the part of a neutral" nor a violation on the part of a belligerent brings ipso facto neutrality to an end. If correctly viewed, the condition of neutrality continues to exist between a neutral and a belligerent 1 See above, § 312. 2 But this is almost everywhere asserted, as the distinction between the violation of the duty of impartiality incumbent Consequences of of Neu trality. in spite of a violation of neutrality. It must be emphasised that a violation of neutrality contains nothing more than a breach of a duty deriving from the condition of neutrality. This applies not only to violations of neutrality by negligence, but also to those by intention. Even if the worst comes to the worst and the violation of neutrality is so great that the offended party considers war the only adequate measure in answer to it, it is not the violation which brings neutrality to an end, but the determination of the offended party. For there is no violation of neutrality so great as to oblige the offended party to make war in answer to it, such party having always the choice whether it will keep up the condition of neutrality or not. But this applies only to mere violations of neutrality, and not to hostilities. The latter are acts of war and bring neutrality to an end; they have been characterised in contradistinction to mere violations above in $320. $359. Violations of neutrality, whether committed Violations by a neutral against a belligerent or by a belligerent against a neutral, are international delinquencies.1 They may at once be repulsed, the offended party can require the offender to make reparation, and, if this is refused, it can take such measures as it thinks adequate to exact the necessary reparation. If the violation is trivial, the offended State will often overlook it, or merely complain. If, on the other hand, the violation is very substantial and grave, the offended State will perhaps at once declare that it considers itself at war with the offender. In such case it is not the violation of neutrality which brings neutrality to an end, but the declaration of the 1 See above, vol. I. § 151. 2 See above, vol. I. § 156. offended State that it considers the violation of so grave a character as to oblige it to regard itself as at war with the offender. That a violation of neutrality can only, like any other international delinquency, be committed by malice or culpable negligence, and that it may be committed through a State's refusing to comply with the consequences of its "vicarious" responsibility for acts of its agents or subjects, is a matter of course. Thus, if a belligerent fleet attacks enemy vessels in neutral territorial waters without an order from its Government, the latter bears" vicarious" responsibility for this violation of neutral territory on the part of its fleet. This "vicarious" responsibility turns into "original" responsibility, for a case of violation of neutrality and an international delinquency arise, if the Government concerned refuses to disown the act of its fleet and to make the necessary reparation. And the analogous is valid if an agent of a neutral State without an order of his Government commits such an act as would constitute a violation of neutrality in case it were ordered by the Government; for instance, if the head of a province of a neutral, without thereto being authorised by his Government, allows forces of a belligerent to march through this neutral territory. Neutrals not to acquiesce in Violations of Neu committed § 360. It is totally within the discretion of a belligerent whether he will acquiesce in a violation of neutrality committed by a neutral in favour of the other belligerent. On the other hand, however, a trality neutral cannot exercise the same discretion regarding by a Bellia violation of neutrality committed by one belligerent gerent. and detrimental to the other party. His duty of impartiality rather obliges him in the first instance to 2 See above, vol. I. § 150. 1 See above, vol. I. § 154. |