"2. A submarine-telegraph cable uniting two neutral territories [169]is inviolable. It is desirable that, when telegraphic communication must be interrupted in consequence of war, a belligerent should confine himself to such measures as are absolutely necessary to prevent the cable from being used, and that such measures should be discontinued, or that any damage caused by them, should be repaired as soon as the cessation of hostilities may permit."
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, November 23 (1881).
SUBMARINE CABLES IN TIME OF WAR
Sir,—I venture to think that the question which has been raised as to the legitimacy of cable-cutting is not so insoluble as most of the allusions to it might lead one to suppose. It is true that no light is thrown upon it by the Convention of 1884, which relates exclusively to time of peace, and was indeed signed by Lord Lyons, on behalf of Great Britain, only with an express reservation to that effect. Nor are we helped by the case to which attention was called in your columns some time since by Messrs. Eyre and Spottiswoode. Their allusion was doubtless to the International (L.R. 3 A. and E. 321), which is irrelevant to the present enquiry. The question is a new one, but, though covered by no precedent, I cannot doubt that it is covered by certain well-established principles of international law, which, it is hardly necessary to remark, is no cut-and-dried system but a body of rules founded upon, and moving with, the public opinion of nations.
That branch of international law which deals with the relations of neutrals and belligerents is, of course, a compromise between what Grotius calls the "belli rigor" and the "commerciorum libertas." The terms of the compromise, originally suggested partly by equity, partly by national interest, have been varied and re-defined, from time to time, with reference to the same considerations. It is perhaps reasonable that, in settling these terms, preponderant [170]weight should have been given to the requirements of belligerents, engaged possibly in a life-and-death struggle. "Ius commerciorum æquum est," says Gentili; "at hoc æquius, tuendæ salutis." There is accordingly no doubt that in land warfare a belligerent may not only interrupt communications by road, railway, post, or telegraph without giving any ground of complaint to neutrals who may be thereby inconvenienced, but may also lay hands on such neutral property—shipping, railway carriages, or telegraphic plant—as may be essential to the conduct of his operations, making use of and even destroying it, subject only to a duty to compensate the owners. This he does in pursuance of the well-known "droit d'angarie," an extreme application of which occurred in 1871, when certain British colliers were sunk in the Seine by the Prussians in order to prevent the passage of French gunboats up the river. Count Bismarck undertook that the owners of the ships should be indemnified, and Lord Granville did not press for anything further. Such action, if it took place outside of belligerent territory, would not be tolerated for a moment.
The application of these principles to the case of submarine cables would appear to be, to a certain point at any rate, perfectly clear. Telegraphic communication with the outside world may well be as important to a State engaged in warfare as similar means of communication between one point and another within its own territory. Just as an invader would without scruple interrupt messages, and even destroy telegraphic plant, on land, so may he thus act within the enemy's territorial waters, or, perhaps, even so far from shore as he could reasonably place a blockading squadron. It may be objected that a belligerent has no right to prevent the access of neutral ships to unblockaded portions of the enemy's coast on the ground that by carrying diplomatic agents or despatches they are keeping up the communications of his enemy with neutral Governments. But this indulgence rests on the presumption that such [171]official communications are "innocent," a presumption obviously inapplicable to telegraphic messages indiscriminately received in the course of business. It would seem, therefore, to be as reasonable as it is in accordance with analogy, that a belligerent should be allowed, within the territorial waters of his enemy, to cut a cable, even though it may be neutral property, of which the terminus ad quem is enemy territory, subject only to a liability to indemnify the neutral owners.
The cutting, elsewhere than in the enemy's waters, of a cable connecting enemy with neutral territory receives no countenance from international law. Still less permissible would be the cutting of a cable connecting two neutral ports, although messages may pass through it which, by previous and subsequent stages of transmission, may be useful to the enemy.
Your obedient servant,