Papers Relating to the Foreign Relations of the United States, The Lansing Papers, 1914–1920, Volume I

763.72111/48½

Memorandum by the Counselor for the Department of State (Lansing) on the Use by Belligerents of Wireless Stations and Submarine Telegraph Cables on Neutral Territory ²

[ Washington ,] August 12, 1914.

The Hague Convention of 1907 respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land contains the following provisions:³

• Article 3

• Belligerents are likewise forbidden to:

  a. Erect on the territory of a neutral power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;

  b. Use any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes, and which has not been opened for the service of public messages.”

• “Article 8

• A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.”

A neutral power is not bound to forbid or restrict the use of submarine cables landed on its territory whether belonging to a government or to private persons, or the use of wireless telegraphy unless the station on neutral territory is erected by a government, either before or after the beginning of a war for military purposes.

While a neutral is given full discretion in regulating the use of cables and wireless on its territory, with the exception noted as to government owned wireless stations, it appears to me the duty of a neutral power in maintaining an impartial neutrality to prevent communications between a belligerent government and its agents on neutral territory when such communications are of an unneutral character unless both belligerents possess equal opportunities of communication.

The neutral character of communications to and, under certain conditions, from a neutral territory by means of telegraphy would appear to consist in sending secret information by the agent of a belligerent power to his government relative to military or naval operations and to the movements of merchant ships of belligerents arriving at or departing from neutral ports.

This would apply equally to wireless and submarine telegraphs.

There are, however, some distinctions in the means of communication by wireless and by cable. In the latter case the enemy of the belligerent, in whose territory the cable is landed, may, if he is able, cut such cable in the open sea or in the territorial waters of the belligerent. This may be done by a belligerent under the generally accepted principles of international law.

In the case of wireless telegraphy, however, there being no physical connection between the station on neutral territory and the station on the territory of the belligerent the enemy is physically powerless to prevent communication between a belligerent government and its agent or [on] neutral territory.

A further distinction is that messages may be sent directly from neutral territory, without danger of interruption, to the warships of a belligerent on the high seas. Thus by using a cipher the agent of a belligerent on neutral territory might give to the cruisers of his government information as to the movements of an enemy’s warships or merchant ships, which would amount to a direction of naval operations from neutral territory. On the other hand, by cable, messages may not be sent directly to vessels at sea. They may however be sent to the territory of a belligerent and by him forwarded by wireless to the vessels at sea, the difference in this case being, provided the cable remains intact, a few hours delay in transmission.

A third distinction is that wireless messages radiate in all directions from the sending station, with a radius depending roughly on the power of the station. With cables, however, the points of contact with foreign countries depend on the number of cables laid. For example, it is understood that most of the cables from the United States reach Europe through England or her possessions and that there are no direct cables to Germany or Austria or Russia.

The advantages that flow from these three distinctions depend largely on whether the message is plain or cipher.

Assuming that all messages are sent open and not in cipher, the advantage would appear to be with the cable system, for I am advised that any receiver of one belligerent, if properly adjusted, may pick up wireless messages intended for another belligerent. The cable messages therefore would have the advantage of secrecy, so long as the cable was unmolested.

On the other hand, if all the messages are in cipher, one belligerent could not read the messages of the other belligerent and the wireless system would have the advantage, owing to its freedom from molestation and to its directness of action.

In this discussion no distinction is made between outgoing and incoming messages, for it is believed that both may serve to give a belligerent information of an invaluable character for the guidance of his warlike operations. An incoming cipher message to a belligerent’s agent might ask a question as to certain movements of the enemy which could be answered by the word “Yes” or “No;” or the message might instruct the agent to telegraph in reply a certain sentence plain, which would mean one thing or another sentence which would mean another thing. In either case the plain outgoing message would contain secret information, which might be of a most unneutral character, and so defeat the entire purpose of the prohibition or censorship. It is essential, therefore, that, if cipher messages are prohibited, or if cipher messages are censored, the messages affected should be those received as well as those sent.

On these differences in the physical characters and the obvious advantages of the two systems may perhaps depend the duty of a neutral to regulate the use of its wireless or cable stations for the transmission of warlike information to a belligerent. Frequently in the past the isolation of a belligerent nation by the other belligerent has been considered of prime military importance. To permit the use of the wireless telegraph in furnishing a nation, beleaguered by land and sea, with information as to the strength, location, and condition of its enemy’s military and naval forces would, therefore, result in depriving the attacking power of an advantage to which it is legitimately entitled.

It seems to me that, because wireless communication between the territory of a neutral and the territory of a belligerent is entirely beyond the reach of the other belligerent, a neutral is bound to control more strictly the use of wireless stations on its territory than it is to control the use of cables between its territory and that of a belligerent, if it decides to control either.

Whether the immunity of wireless, which is open to public use, from interference is a sufficient reason for prohibiting its use for cipher messages by a belligerent government and its agents is a question which I am not prepared to answer finally although I believe that to do so would be justifiable, and especially so if the enemy of the belligerent power was sufficiently dominant on the high seas to prevent all other means of communication.

While a neutral might be justified in taking this course (a course already adopted and acted upon by this Government in the case of the wireless stations at Sayville, Long Island, and Tuckerton, New Jersey,) the belligerent thus deprived of its sole means of communication with its agents in neutral territory, would undoubtedly protest on the ground of discrimination against it by the neutral in permitting cipher messages by cable and not by wireless. Such a protest would seem to be not unreasonable in view of the results, although the advantage to the belligerent possessing cable communication would be due in fact to its naval superiority and its ability to prevent its enemy from severing its cable on the high seas. On the other hand to permit the free use of the wireless for secret communications between a belligerent government and its agents after it had been deprived of all other means of communication by the naval forces of an enemy would constitute a reasonable ground of complaint against a neutral by such enemy.

To avoid, therefore, a more or less justifiable charge of unneutral conduct by either the one or the other of the belligerents, when one possesses cable connection and the other wireless connection with neutral territory, it would seem advisable to find some compromise course, which would permit a measure of communication to both belligerents with their respective agents on neutral territory.

The following propositions regulating the use of submarine and wireless telegraphy in neutral jurisdiction are submitted for consideration:

1. All cables and wireless telegraphs to be open to all belligerents and their respective agents on neutral territory without restriction.

2. The closing of all cables between belligerent and neutral territory and all wireless capable of sending messages between belligerent and neutral territory to all cipher messages both outgoing and incoming.

3. The closing of such cables and wireless to all cipher messages unless they have been read by an official censor of the United States, who shall be furnished with a code by the sender or recipient for that purpose, and the censor shall have decided that they convey no information of military operations or the movements of ships or other information which may be considered unneutral in character. Plain messages conveying such information to be also excluded by the censor.

In connection with these propositions looking to the preservation of an impartial neutrality attention is called to the practice of other governments in relation to the use by belligerents of submarine cables.

In the war between the United States and Spain (1898) the British Government instructed the Governor of the Barbadoes not to permit messages by cable to be sent out from the colony relative to the movements of warships of either belligerent (Moore’s Digest, Vol. 7, p. 941.) This instruction to be efficient must have of necessity prevented the sending of untranslatable cipher messages.

During the war between Russia and Japan (1904–5) the Netherlands authorities in the East Indies made regulations for the refusal at certain stations of cable messages the contents of which were not intelligible to the Netherlands officials, messages in cipher unless furnished with a code, and messages regarding the movements of ships or troops which would be of interest to Russia or Japan (Int. Law Situations—Naval War College—1907, p. 155.)

While in theory the United States has been an advocate of the neutralization of submarine cables between belligerent and neutral territories, it has in practice as a belligerent followed a contrary course. During the Spanish war it cut several cables landing on Cuba territory and also others connecting the Philippines with neutral territory.

As to wireless telegraphy there appear to be no cases in which the question of its use has arisen, it can only be considered, therefore, by analogy, (unless the station on neutral territory is erected or used by a belligerent government) though its immunity from interruption by an enemy and its wider field of communication must be recognized in reaching a determination as to its use by belligerents on neutral territory.

I would emphasize in conclusion that, while this Government is not bound as a neutral under Article 8 of The Hague Convention to interfere in any way with the use of submarine or wireless telegraphy by belligerents, Article 8 should be read with Article 3, paragraph b. It would be impossible for a belligerent to prevent the use of wireless stations on neutral territory from being used for military purposes. To be effective the prohibition of paragraph b of Article 3 must be enforced by the neutral government unless the belligerent, using the wireless, voluntarily discontinues the use, an action which cannot be expected. Though not legally obligated the moral duty of the neutral government would appear to be to carry out the spirit of the treaty, but in doing so it should attempt to avoid giving to either belligerent peculiar advantage by reason of its regulation and control of telegraphic communications between its territory and the territories of the belligerents. Impartiality and, as far as possible, equal treatment should determine the policy of this Government in dealing with this question.

Robert Lansing

2. For correspondence previously printed regarding control of wireless telegraphy, see Foreign Relations, 1914, supp., pp. 667 ff.
3. Malloy, Treaties, 1776–1909, vol. II, p. 2290.