Some Questions of International Law.
595
SOME QUESTIONS OF INTERNATIONAL LAW ARISING FROM THE RUSSO-JAPANESE WAR. v. War Correspondents, Wireless Telegraphy and Submarine Mines.
» Bv AMOS S. HERSHEY, Associate Professor of European History and Politics, Indiana University. THE Russo-Japanese War has given rise to several interesting and important questions bearing upon the rights and privi leges of neutrals in warfare which are wholly new and unprecedented in the history of In ternational Law. In dealing with these ques tions it may be well to call attention to the fact that the discussion of such topics must necessarily be more or less tentative in its nature, inasmuch as we cannot appeal, in support of our views, to the authority of emi nent publicists or jurists or to the force of precedents in international practice. In the absence of such guides we must fall back upon the general or fundamental principles oi our science or seek for analogous cases in the history of International Law. The first of these questions relates to the rights of war correspondents and the use of wireless telegraphy in neutral waters. The head of our State Department must have been considerably surprised to receive the following note from Count Cassini, the Russian ambassador at Washington, on April 15, 1904. "I am instructed by my Gov ernment, in order that there may be no mis understanding, to inform your Excellency that the Lieutenant of his Imperial Majesty in the Far East1 has just made the following declaration:—In case neutral vessels, having on board correspondents who may communi cate news to the enemy by means of im proved apparatus not yet provided for byexisting conventions, should be arrested off Kwan-tung, or within the zone of operations 1 Admiral Alexieff
oí the Russian fleet, such correspondents shall be regarded as spies, and the vessels provided with such apparatus shall be seized as lawful prizes."- It is believed that a simi lar, if not identical, note was communicated to the other Powers,3 which was thus in the nature of a general notification to the whole world. After a careful consideration of this announcement on the part of the Russian Government that it proposes to treat as spies any newspaper correspondents falling into its hands who have been engaged in the col lection or transmission of news on the high seas by means of wireless telegraphy, our Government appears to have wisely decided to defer action or formal protest until a case 1 For the text of this note see the London Times (weekly ed.) for April 22, 1904. Cf. N. Y. Times for April loth. The two versions differ slightly in phraseology, but not in purport. 'This is true, at least in the case of the British Government. The British note does not seem to have been given to the Press, but on April 22d, Earl Percy, Under-Secretary of State for Foreign Affairs, gave an account of Admiral Alexieff's order in the House of Commons which differed from the American version in a very important respect. He spoke of "correspondents who are communicating information to the enemy," in stead of "who may communicate, etc." "There is," as Lawrence (ll'ar and Xeutrality in the Far East, p. 85) says in commenting upon this appar ent discrepancy, "all the difference in the world between being in a position to do an act and ac tually doing it." In the latter case, i. e.. if the war correspondent on board the Haimun had ac tually communicated news to the Japanese, he would have been guilty of having performed an unneutral service for which he would have ren dered himself liable by way of penalty to the loss of his ship and apparatus, although even in this case, he would not have been subject to the treat ment of a spy. We have accepted the American version and assumed throughout our discussion that there is no^question of unneutral service.
