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territories of one belligerent or the territories of the two belligerents, and cables connecting one of the belligerent countries with a neutral country would be open to the same danger. It will be remembered thatthe American Admiralin Cuban waters in the recent Spanish-American War placed the end of a cable on board his ship in order to control its use, and the British fleet did the same before attacking Alexandria in 1882. Ten years before the Institute considered the question, the United States Government had framed a project for the protection of submarine cables, which was to be of equal force in a state of peace or war, and had invited the other Governments to attend a conference (which, however, did not take place) for its consideration.
The Submarine Cables Convention of 1884, to which all the leading powers were parties, mainly proceeded on the lines suggested by the Institute ; and, as a result, in peace time these cables are protected not only by International law, but also by the municipal criminal law of each country adhering to the convention. By its fifteenth article, however, the convention expressly declared that it did not in any way restrict the freedom of action of belligerents ; the British representative, in signing it, declared formally that this meant that in time of war a belligerent signatory of the treaty would be free to act as regards such cables as if the treaty did not exist; and the Belgian plenipotentiary made a similar intimation.
At the (abortive) Brussels Conference of 1874, convened to consider an international understanding with regard to the laws and customs of war, the Danish delegate had suggested that cables d'atterrissage (or cables connecting submarine cables with land telegraphs) should be included in the category of moveable
property suitable for military purposes, comprising railways, telegraphs, etc., which a belligerent occupying the country could appropriate and use on condition of restoring them at the restoration of peace; and at the Hague Conference the representative of Denmark renewed this proposal, which was supported by the special committee. Our Admiralty and War Office, however, on being consulted, expressed views contrary to the addition, the latter regarding it as unnecessary because a dominant military power by land could already control the landing places of the cables and because the subject would be better dealt with in connection with an international understanding with regard to submarine cables. Accordingly, on the subject coming before the Conference, the British representative objected that this was a naval question, and, therefore, beyond the scope of the Conference, and at his request the Danish delegate withdrew the proposal; but he declared that his Government remained convinced that there were sound reasons for giving to submarine cables the same protection as land telegraphs enjoyed, and the Roumanian representative expressed the same view.
The code of International Law, drafted by Mr. David Dudley Field, contained a provision that submarine cables, so long as not used for military purposes should not be the objects of hostilities, and must be protected by each belligerent to whomsoever belonging; and when a cable was projected from Europe to South America, France, Hayti, Brazil, Portugal, and Italy signed a convention in 1864 engaging that it should be inviolable in war no less than in peace. It might no doubt be impossible to debar by convention a belligerent from interfering with these cables when there is a military necessity for him to do so; but if the limited protection granted to land telegraphs were extended to them, they could be used by the belligerent in any way necessary for the purposes of the war, while there would be an obligation to restore them at the return of peace. If they were made inviolable on the high seas, and at their various landing places were considered as land telegraphs, a belligerent could then prevent an enemy using them for his own purposes, and any injury done to them could be more easily repaired. Nor is it likely that a naval power would lose by this becoming law, for it is doubtful whether any fleet however large could prevent an ocean cable being cut at some point of its course.
The Hay-Pauncefote Treaty.
As was anticipated, the British Government has rejected the United States Senate's amendments to the HayPauncefote treaty, and the treaty lapses for want of ratification within the specified time. Lord Lansdowne's reasons for his action are based partly on grounds of policy, partly on the nature of the proposed convention in its amended form. The grounds of policy are, put shortly, that the British Government consented to open negotiations on the American Government expressing its desire to obtain such modifications of the Clayton-Bulwer treaty as would enable the United States Government to undertake itself the construction of the inter-oceanic canal by the Nicaraguan route and thus control a practical waterway between the Atlantic and the Pacific, which was of increasing importance in view of the expansion of American power in the Pacific, so far as should be consistent with the main principle of neutralisation embodied in the former treaty. On finding, however, after the treaty (which made considerable concessions to the United States) had been drafted that no progress could be made by the Joint High Commission then sitting to discuss the outstanding differences between Canada, Great Britain, and the United
States owing to the latter refusing to make any concessions, Lord Salisbury declined to proceed with the treaty and only subsequently consented to reopen negotiations on the basis of the treaty proposals already put forward.
Lord Lansdowne's criticism of the effect of the Senate's amendments goes to three points : that the treaty in this form did not contain the existing renunciation by the parties of their freedom of action in Central America ; that the concession of military control over the canal to the United States would give them undue military advantages over Great Britain ; and that the omission of the provision of the Clayton-Bulwer treaty that other Powers should be given notice of the treaty and be invited to adhere to it would have the effect of placing the neutrality of the canal under the guarantee of the two contracting Powers only, and of putting Great Britain at a disadvantage with other Powers who would not be bound to respect the stipulation of neutrality. Lord Lansdowne further denied that the provisions of the Convention relating to the Suez Canal, which safeguard the interests of the Egyptian Government, constituted any analogy to the proposed military control of the canal in case of necessity by the United States, which was not the territorial sovereign.
Due allowance can be made for the considerations that the two canals do not stand on quite the same footing, the status of the respective countries not being the same, and ownership by an international company differing from that by a foreign Power, in that the latter might naturally expect to obtain some advantage in return for the expense of construction and maintenance of a work which other nations are going to use, and that such a canal would be of far greater strategical value now
to a North-American Power than it would have had in 1850. But it must be remembered that Great Britain's interests in such a canal, great as they are, might have been much greater if the Clayton-Bulwer treaty had not prevented her expansion in Central America beyond the limits of her possession of the Colony of Honduras, and the consideration for her renunciation of freedom of action in Central America was that the United States and herself should remain on a footing of equality in the Isthmus. If, as was at first expected, British capital had constructed the canal, Great Britain could have claimed no preterential rights. It is to be hoped, however, that a fresh treaty on the original lines of the Hay-Pauncefote project will be soon substituted for the Clayton-Bulwer agreement which is admittedly now out of date.
The war in South Africa still continues; and will do so so long as the Boer operations are carried on by organised bodies of men under the orders of regular chiefs and acting according to military rules of movement. But with the definite occupation of the country, the dispersion of these hostile bodies, and the ceasing of any organised collective hostilities against the British forces, the state of war and the privileges of belligerents also may be considered as at an end. In this connection the provisions of the Instructions for the United States armies in the field (Lieber's Code or 1863) may be noted. Article 52 declares that no belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit, but if the people of a country or any part of it already occupied by an army rise against it they are violators of the laws of war and are not entitled to protection. By Article 81, men or squads of men who commit hostilities