[PREPATORY NOTE.—All but the fifth section of this paper was written about three and one-half years ago; that section was written about a year later. The whole is here printed substantially in its original form, and with no changes that affect the sense. In the American Journal of International Law for April, 1909 a distinguished retired officer of the Army published a paper on the same general subject in which conclusions are reached quite the contrary of those herein maintained. It seems worthwhile to present the opposite view-point to his in order that readers may have both before them, and form their own conclusions on a matter of wide interest to the nation, and particularly to the military services. In addition to the standing notice it seems proper to emphasize the fact that the writer speaks for himself alone in the following pages.]
I.
Preceding any intelligent discussion of the status of the Panama Canal regarding freedom of passage and inviolability in war, which have so generally and so loosely been spoken of as "neutralization" even in official documents of the latest date, it will be necessary first to examine the treaty obligations of the United States under which the Canal is now under construction, and which define the powers of control over it when it shall be finished.
The latest of these is the convention concluded November 18, 1903, by the late John Hay and Mr. Bunau-Varilla, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Panama. This convention was proclaimed on February 26, 1904, after due ratifications, its title being "Convention for the Construction of a Ship Canal."
Article I guarantees the independence of Panama by the United States.
In Article II Panama
grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal.
The width of the zone is ten miles, and it does not include the cities and harbors of Panama and Colon, but does include the small islands in the former harbor called Perico, Naos, Culebra and Flamenco. The article further grants
in perpetuity the use, occupation and control of any other lands and waters outside of the zone above described which may be necessary and convenient for the construction, maintenance, operation, sanitation and protection of the said Canal or of any auxiliary canals or other works necessary and convenient for the construction, maintenance, operation, sanitation and protection of the said enterprise.
In Article III
The Republic of Panama grants to the United States all the rights, power and authority
within the zone and auxiliary lands and waters mentioned in Article II,
which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.
It is interesting to note the peculiar wording of these two articles, in which Panama does not grant the territory, nor relinquish her sovereignty over it, but grants its "use, occupation and control" and relinquishes the "exercise . . . . of sovereign rights, power or authority" therein.
In Article IV Panama
grants in perpetuity to the United States the right to use the rivers, streams, lakes and other bodies of water within its limits for navigation, the supply of water or water power or other purposes
as far as may be
necessary and convenient for the construction . . . . and protection of the said Canal.
The words "its limits" above refer to the Republic of Panama and not to the Canal zone alone.
In Article V Panama
grants to the United States in perpetuity a monopoly for the construction, maintenance and operation of any system of communication by means of canal or railroad across its territory between the Caribbean Sea and the Pacific Ocean.
Article VII grants to the United States the exercise, under certain circumstances, of the right of eminent domain in the cities of Panama and Colon; and the right also to enforce sanitary measures and maintain public order therein in case of necessity.
Article IX provides that the entrance ports to the canal and the waters thereof, together with the towns of Panama and Colon "shall be free for all time."
Article XIV provides for the initial compensation and, after nine years, the annual payment to be made by the United States to Panama for the rights, powers and privileges granted in this convention.
Article XVIII reads:
The Canal, when constructed, and the entrances thereto shall be neutral in perpetuity, and shall be opened upon the terms provided for by Section I of Article three of, And in conformity with all the stipulations of, the treaty entered into by the Governments of the United States and Great Britain on November 18, 1901.
Article XX provides that Panama shall abrogate, or procure the abrogation of, any privileges or concessions in favor of the government or citizens of a third power relative to an interoceanic means of communication that are incompatible with the terms of this convention, and which may have descended to or been assumed by the Republic of Panama.
Article XXIII reads:
If it should become necessary at any time to employ armed forces for the safety or protection of the Canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times and in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes.
Article XXV reads:
For the better performance of the engagements of this convention and to the end of the efficient protection of the Canal and the preservation of its neutrality, the Government of the Republic of Panama will sell or lease to the United States lands adequate and necessary for naval or coaling stations on the Pacific coast and on the western Caribbean coast of the Republic at certain points to be agreed upon with the President of the United States.
The remaining articles need not be quoted for present purposes.
A consideration of the articles quoted shows that our government has:
(a) Monopoly of trans-Panama projects of communication.
(b) The engagement of Panama to ensure us that monopoly by abrogation of any privileges or concessions to the governments or citizens of any third power.
(c) Practical sovereignty over the Canal zone, excepting the cities and harbors of Colon and Panama, though no actual sovereignty is ceded in word, and an annual rental is paid.
(d) Rights and privileges directly and repeatedly expressed regarding the protection of the Canal, including the right to use troops and fortify, and the acquisition of naval as well as coaling stations.
(e) To the maintenance of these objects, it guarantees the independence of Panama.
No plainer language is needed to indicate the determination of the United States to own, control and provide for the defense of the Canal, alone and unaided, in so far as this instrument makes it possible.
But it will be noted further that the United States engages, in Article XVIII, that "the Canal, when constructed, and the entrances thereto shall be neutral in perpetuity"; and again, in Article XXV, where lands for naval or coaling stations are provided for, the words
to the end of the efficient protection of the Canal and the preservation of its neutrality
are used. The declaration of Article XVIII and the words quoted from Article .XXV are of serious import, and the meaning to be ascribed to them must be determined by a consideration of the circumstances leading up to the conclusion of the convention, and of the announced policy of our government, as well as of the exact meaning of the words "neutrality" and "neutral" in the connection used above.
Article XVIII, besides declaring the Canal to be neutral, prescribes that the Canal
shall be opened upon the terms provided for by Section I of Article three of, and in conformity with all the stipulations of, the treaty entered into by the Governments of the United States and Great Britain on November 18, 1901.
This leads to an examination of that instrument, which is entitled a "Treaty to Facilitate the Construction of a Ship Canal" and was proclaimed February 22, 1902, after due ratifications. It is better known as the Hay-Pauncefote Treaty.
In making this examination it should be borne in mind that the Hay-Pauncefote Treaty is the culmination of many years' dissatisfaction in the United States with the provisions of the treaty concluded in 1850 between the same nations which is generally known as the Clayton-Bulwer Treaty. The latter will be examined later, the present object being to discover exactly what conventions exist to-day under which the United States has obtained rights and assumed duties.
The Hay-Pauncefote Treaty recites in the preamble that the High Contracting Parties
being desirous to facilitate the construction of a ship canal to connect the Atlantic and Pacific Oceans, by whatever route may be considered expedient, and to that end to remove any objection which may arise out of the Convention of the 19th April, 1850, commonly called the Clayton-Bulwer Treaty, to the construction of such canal under the auspices of the Government of the United States without impairing the "general principle" of neutralization established in Article VIII of that convention, have for that purpose appointed as their Plenipotentiaries, etc.
Article I reads:
The High Contracting Parties agree that the present treaty shall supersede the afore-mentioned Convention of the Kith April, 185o.
Article II reads:
It is agreed that the canal may be constructed under the auspices of the Government of the United States, either directly at its own cost, or by gift or loan of money to individuals or Corporations, or through subscription to or purchase of stock or shares, and that, subject to the provisions of the Present Treaty, the said Government shall have and enjoy all the rights incident to such construction, as well as the exclusive right of providing for the regulation and management of the canal.
Article III reads:
The United States adopts, as the basis of the neutralization of such ship canal, the following Rules, substantially as embodied in the Convention of Constantinople, signed the 28th October, 1888, for the free navigation of the Suez Canal, that is to say:
I. The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.
2. The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against lawlessness and disorder.
3. Vessels of war of a belligerent shall not revictual nor take any stores in the canal except so far as may be strictly necessary; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the Regulations in force, and with only such intermission as may result from the necessities of the service.
Prizes shall be in all respects subject to the same Rules as vessels of war of the belligerents.
4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the canal, except in case of accidental hindrance of the transit, and in such case the transit shall be resumed with all possible dispatch.
5. The provisions of this Article shall apply to waters adjacent to the canal, within 3 marine miles of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time, except in case of distress, and in such case, shall depart as soon as possible; but a vessel of war of one belligerent shall not depart within twenty-four hours from the departure of a vessel of war of the other belligerent.
6. The plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purposes of this Treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the canal.
Article IV reads:
It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the High Contracting Parties under the present Treaty.
Article V, which is the last, has the usual phraseology concerning ratification.
Article II is an evidence of the determination of the United States that its government should own the Canal if it seemed best, and control it under any circumstances, alone and unaided.
Article III sets forth certain Rules as the basis of the "neutralization" of the canal,
substantially as embodied in the Convention of Constantinople, signed the 28th of October, 1888, for the free navigation of the Suez Canal.
There are significant omissions, however. In Article I of the Constantinople Convention it is declared:
The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag. Consequently the High Contracting Parties agree not in any way to interfere with the free use of the Canal, in Hine of war as in time of peace.
Again Article IV of the Constantinople Convention, in expressing the agreement of the powers to refrain from acts of hostility and belligerent operations, or acts having obstruction of the Canal in view, uses these words:
The Maritime Canal remaining open in time of war as a free passage, even to the ships of war of belligerents . . . . even though the Ottoman Empire should be one of the belligerent Powers.
The words underlined are not to be found in the Hay-Pauncefote Treaty, nor any words that can be construed to have a like meaning. This is the more significant when it is recalled that Lord Pauncefote was one of the negotiators of the Convention of Constantinople. It is true that the reading of Rule 6 of the Hay- Pauncefote Treaty at first sight appears to have a provision to a similar effect in the words "and in time of war, as in time of Peace, shall enjoy," etc. But that makes no mention of, nor can its language be inferred to mean, any obligation to keep the Canal Open to an enemy of the United States. By Rules III and IV belligerents are not forbidden to use the Canal; indeed the language of the Rules assures that they may use it. The article opens With the words "The United States adopts . . . . "; but nowhere is the United States specifically mentioned as a belligerent, or included in definite words in any such manner as is the Ottoman Empire in the articles of the Constantinople Convention. Nor is any special definite authorization laid down that an enemy of the United States may use the Canal to the detriment of the latter's interests. However far the Rules go in allowing the use of the Canal to belligerents in a war where the United States is a neutral, they certainly do not specifically include a belligerent who is an enemy of the United States. In this respect they are radically different from the Rules agreed to by the powers signatory to the Constantinople Convention, and the internal evidence of their wording is that they are adopted by the United States as the guide to its conduct in the treatment of belligerents in a war in which the United States itself is not engaged, and that only to that extent does the United States guarantee the "neutralization" of the Canal. Had the United States intended that the Canal should be free and open in war to its own enemies, it is certain that, with the provisions of the Constantinople Convention before the negotiators and avowedly used by them as a basis, the Rules would have been so specifically drawn as to obviate any doubt. As the text reads no such construction is admissible.
There is another significant omission in the Hay-Pauncefote Rules. The Constantinople Convention, in Articles IX and X, provides for certain measures for ensuring the execution of the treaty, for the maintenance of public order, and for the Imperial Ottoman Government ensuring
by its own forces the defence of its other possessions situated on the eastern coast of the Red Sea.
Article XI says:
The measures which shall be taken in the cases provided for by Articles IX and X of the present treaty shall not interfere with the free use of the canal. In the same cases, the erection of permanent fortifications contrary to the provisions of Article VIII is prohibited.
The provisions of Article VIII referred to are found in the words:
They (the Agents in Egypt of the Signatory Powers) shall especially demand the suppression of any work or the dispersion of any assemblage on either bank of the Canal, the object or effect of which might be to interfere with the liberty and the entire security of the navigation.
Article VII says, in part:
The powers shall not keep any vessel of war in the waters of the Canal.
These prohibitions are not found in the Hay-Pauncefote Rules, and the British Government's view in this connection was expressed in a memorandum by Lord Lansdowne (August 3, Igor) communicated to Mr. Hay through Lord Pauncefote, in which is said:
I understand that by the omission of all reference to the matter of defence the United States Government desires to reserve the power of taking measures to protect the canal, at any rate when the United States may be at war, from destruction or damage at the hands of an enemy or enemies.. . . . I am not prepared to deny that contingencies may arise when not only from a national point of view, but on behalf of the commercial interests of the whole world, it might be of supreme importance to the United States that they should be free to adopt measures for the defence of the canal at a moment when they were themselves engaged in hostilities.
There are four other protocols or conventions that have a bearing upon transit across the Isthmus. On December 1, 1900, protocols were signed with the representatives of both Costa Rica and Nicaragua agreeing that negotiations shall be entered into
when the President of the United States is authorized by law to acquire control of such portion of the territory now belonging to Costa Rica (Nicaragua) . . . . to construct and protect a canal . . . . from a point near San Juan del Norte on the Caribbean Sea, via Lake Nicaragua to Brito on the Pacific Ocean.
It was further agreed that the course and terminals of the Canal should be the same as
were stated in a treaty signed by the Plenipotentiaries of the United States and Great Britain on February 5, 19oo, and now pending in the Senate of the United States for confirmation.
The Senate refused to confirm that treaty, and it was nearly a year later before the Hay-Pauncefote Treaty that is now in force was concluded.
In the Gadsden Treaty of 1853 with Mexico, certain provisions regarding interoceanic transit across the Isthmus of Tehuantepec by the plank and rail road were included that were of value to the United States, but which have no bearing on the Panama Canal.
There remains the Treaty of 1846 with New Granada, to which the Republic of Colombia has succeeded. It is entitled "Treaty of Peace, Amity, Navigation and Commerce," and only its Article 35 has a bearing on the present subject. That article reads, in part:
The United States of America and the Republic of New Granada desiring to make as durable as possible, the relations which are to be established between the two parties by virtue of this treaty, have declared solemnly, and do hereby agree to the following points.
1st. For the better understanding of the preceding articles, it is, and has been stipulated, between the high contracting parties, that the citizens, vessels, and merchandise of the United States shall enjoy in the ports of New Granada, including those of the part of the Granadian territory generally denominated Isthmus of Panama, from its southernmost extremity until the boundary of Costa Rica, all the exemptions, privileges and immunities, concerning commerce and navigation, which are now, or may hereafter be enjoyed by Granadian citizens, their vessels and merchandise; and that this equality of favors shall be made to extend to the passengers, correspondence and merchandise of the United States in their transit across the said territory, from one sea to the other. The Government of New Granada guarantees to the Government of the United States, that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be, hereafter, constructed, shall be open and free to the Government and citizens of the United States, and for the transportation of any articles of produce, manufactures or merchandise, of lawful commerce, belonging to the citizens of the United States; that no other tolls or charges shall be levied or collected upon the citizens of the United States, or their said merchandise thus passing over any road or canal that may be made by the Government of New Granada, or by the authority of the same, than is under like circumstances levied upon and collected from the Granadian citizens; that any lawful produce, manufactures or merchandise belonging to citizens of the United States, thus passing from one sea to the other, in either direction, for the purpose of exportation to any other foreign country, shall not be liable to any import duties whatever; or having paid such duties, they shall be entitled to drawback, upon their exportation; nor shall the citizens of the United States be liable to any duties, tolls, or charges of any kind to which native citizens are not subjected for thus passing the said Isthmus. And, in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages and for the favors they have acquired by the 4th, 5th and 6th articles of this Treaty, the United States guarantee positively and efficaciously to New Granada by the present stipulation, the perfect neutrality of the before mentioned Isthmus, with the view that the free transit from the one to the other sea, may not be interrupted or embarrassed in any future time while this Treaty exists; and in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.
The remaining five sections of the article have no special interest in connection with this examination. In his message of January 4, 1904, President Roosevelt argues at length to maintain that this article descended to Panama at the time of her separation from Colombia, and is still in force. In this connection, also, Crandall says, in Treaties, their Making and Enforcement, p. 238:
the provisions of Article XXXV of the treaty of 1846 . . . . have been considered as forming a covenant "that runs with the land, to the duties and benefits of which the new state of Panama succeeded."
Admitting that the article stands, and has descended to Panama, and is not superseded by the Convention of November 18, 1903, a careful examination of its terms will show that:
(a) The general meaning of the article up to the neutrality clause has reference only to matters of commerce and peaceful communication.
(b) The possible exception is in the words
The Government of New Granada guarantees to the Government of the United States, that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be, hereafter, constructed, shall be open and free to the Government and citizens of the United States; though the context here points again to commercial matters.
(c) Not even to the United States is specifically granted authority for the transit of troops, though the use of troops is inferentially permitted by the guaranty clause.
(d) The transit of ships of war of the United States is not specifically granted, even in peace.
(e) Only inferentially by the use of the word "neutrality," and by the lack of any qualifying words to the expression "free transit," can the citizens or governments of foreign powers be considered to have any rights whatever under the article, and that construction is greatly, if not entirely vitiated by the opening words of the neutrality clause, which are "And, in order to secure to themselves . . ."
The entire article seems to have been drawn with the interests of the United States and New Granada only in view, and without reference to any third power's sharing in similar benefits. The use of the word "neutrality" is not exact under any circumstances, and seems here to mean that the United States did not propose to have transit interrupted. As is known, this has repeatedly been construed to devolve upon the United States the duty of maintaining open transit during periods of domestic disorder. Certain it is that the word "neutrality" in this treaty conveys no such meaning as is carried by the word "neutralization" in the Constantinople Convention. Finally, in whatever light the Treaty of 1846 be considered as bearing on present-day conditions, there is nothing in it relating to Isthmian transit that is not more broadly and comprehensively stated in the Hay- Bunau-Varilla Convention.
The construction, control, maintenance and protection of the Panama Canal are thus seen to constitute a question between the United States, on the one hand, and Great Britain and Panama, on the other, as far as any direct treaty stipulations with foreign governments go.
II.
It will now be profitable to compare the provisions of the Hay-Pauncefote Treaty with those of the Clayton-Bulwer Treaty, and trace the history of the latter through the term of its existence. A remarkable change of attitude in the United States toward Isthmian Canal matters will be observed, which will shed great light upon the meaning to be ascribed to the expressions regarding "neutrality" and "neutralization" in our treaties with Great Britain and Panama.
The terms of the Clayton-Bulwer Treaty, whose title is "Convention Relative to a Ship Canal by Way of Nicaragua, Costa Rica, the Mosquito Coast, or Any Part of Central America," are so different from those of the Hay-Pauncefote Treaty that the former treaty is quoted almost in its entirety.
The United States of America and Her Britannic Majesty, being desirous of consolidating the relations of amity which so happily subsist between them by setting forth and fixing in a convention their views and intentions with reference to any means of communication by ship-canal, which may be constructed between the Atlantic and Pacific Oceans by the way of the river San Juan de Nicaragua and either or both of the lakes of Nicaragua or Managua, to any port or place on the Pacific Ocean, the President of the United States has conferred full powers on John M. Clayton, Secretary of State of the United States; and Her Britannic Majesty on the Right Honourable Sir Henry Lytton Bulwer, a Member of Her Majesty's Most Honourable Privy Council, Knight Commander of the Most Honourable Order of the Bath, and Envoy Extraordinary and Minister Plenipotentiary of Her Britannic Majesty to the United States, for the aforesaid purpose; and the said Plenipotentiaries having exchanged their full powers, which were found to be in proper form, have agreed to the following articles.
ARTICLE I.
The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship-canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America; nor will either make use of any protection which either affords or may afford, or any alliance which either has or may have to or with any State or People for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying, or colonizing Nicaragua Costa Rica, the Mosquito coast, or any part of Central America, or of assuming or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection or influence that either may possess, with any State or Government through whose territory the said Canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one, any rights or advantages in regard to commerce or navigation through the said canal which shall not be offered on the same terms to the citizens or subjects of the other.
ARTICLE II.
Vessels of the United State i or Great Britain traversing the said canal shall, in case of war between the contracting parties, be exempted from blockade, detention, or capture, by either of the belligerents; and this provision shall extend to such a distance from the two ends of the said canal as may hereafter be found expedient to establish.
ARTICLE III.
In order to secure the construction of the said canal, the contracting Parties engage that, if any such canal shall be undertaken upon fair and equitable terms by any parties having the authority of the local government or governments through whose territory the same may pass, then the persons employed in making the said canal and their property used, or to be used, for that object, shall be protected, from the commencement of the said canal to its completion, by the Governments of the United States and Great Britain, from unjust detention, confiscation, seizure, or any violence whatsoever.
ARTICLE V
The contracting parties further engage that when the said canal shall have been completed they will protect it from interruption, seizure, or unjust confiscation, and that they will guarantee the neutrality thereof, so that the said canal may forever be open and free, and the capital invested therein secure. Nevertheless, the Governments of the United States and Great Britain, in according their protection to the construction of the said canal, and guaranteeing its neutrality and security when completed, always understand that this protection and guarantee are granted conditionally, and may be withdrawn by both Governments, or either Government, if both Governments or either Government should deem that the persons or company undertaking or managing the same adopt or establish such regulations concerning the traffic thereupon as are contrary to the spirit and intention of this convention, either by making unfair discriminations in favor of the commerce of one of the contracting parties over the commerce of the other, or by imposing oppressive exactions or unreasonable tolls upon passengers, vessels, goods, wares, merchandise, or other articles. Neither party, however, shall withdraw the aforesaid protection and guarantee without first giving six months notice to the other.
ARTICLE VI.
The contracting parties in this convention engage to invite every State with which both or either have friendly intercourse to enter into stipulations with them similar to those which they have entered into with each other; to the end that all other States may share in the honor and advantage of having contributed to a work of such general interest and importance as the canal herein contemplated. And the contracting parties likewise agree that each shall enter into treaty stipulations with such of the Central American States as they may deem advisable for the purpose of more effectually carrying out the great design of this convention, namely, that of constructing and maintaining the said canal as a ship communication between the two oceans, for the benefit of mankind, on equal terms to all, and of protecting the same; and they also agree that the good offices of either shall be employed, when requested by the other, in aiding and assisting the negotiation of such treaty stipulations; and should any difference arise as to right or property over the territory through which the said canal shall pass, between the States or Governments of Central America, and such differences should in any way impede or obstruct the execution of the said canal, the said Governments of the United States and Great Britain will use their good offices to settle such differences in the manner best suited to promote the interest of the said canal, and to strengthen the bonds of friendship and alliance which exist between the contracting parties.
ARTICLE VIII.
The Governments of the United States and Great Britain having not only desired, in entering into this convention, to accomplish a particular object, but also to establish a general principle, they hereby agree to extend their protection, by treaty stipulations, to any other practicable communications, whether by canal or railway, across the isthmus which connects North and South America, and, especially to the interoceanic communications, should the same prove to be practicable, whether by canal or railway, which are now proposed to be established by the way of Tehuantepec or Panama. In granting, however, their joint protection to any such canals or railways, as are by this Article specified, it is always understood by the United States and Great Britain that the parties constructing or owning the same shall impose no other charges or conditions of traffic thereupon than the aforesaid Governments shall approve of as just and equitable; and, that the same canals or railways, being open to the citizens and subjects of the United States and Great Britain on equal terms, shall also be open on like terms to the citizens and subjects of every other State which is willing to grant thereto such protection as the United States and Great Britain engage to afford.
It will be convenient to arrange the terms in parallel columns and then note how they compare in the two treaties.
The Clayton-Bulwer Treaty was an attempt to settle controverted matters that had become acute. The need for a canal was recognized in both countries, and each was jealous of the other's getting any exclusive control over it. The United States had asserted the Monroe Doctrine in 1823, and had recently, 1846, concluded the treaty with New Granada. But the probable location of the Canal at that time was in Nicaragua, and there the British had assumed a protectorate over the Mosquito tribe of Indians; and in June, 1848, they supported the Chief in a claim to the coast extending from the mouth of the San Juan River northward for some 5oo miles. This included Greytown. The eastern terminus of the Nicaragua Canal, and gave Great Britain virtual control over the Canal route. The attitude in the United States when the treaty was concluded in 1850 was one of extreme irritation, and Mr. Clayton, then Secretary of State, doubtless accepted less definite and favorable terms than he might have insisted on had he not feared the outbreak of war. While the treaty averted war, it was unfortunately vague in certain particulars concerning Great Britain's position in Central America, and was unsatisfactory to the United States from the first. The early sources of dissatisfaction, however, were in relation to Great Britain's tenure in Central America, and not with .the features relating to the joint engagement of the two countries regarding the projected Canal itself. For ten years the two countries played at cross-purposes until, in 186o, after Great Britain had concluded new treaties with Honduras and Nicaragua, relinquishing the Mosquito Protectorate, President Buchanan in his message (Dec. 3) said:
The discordant construction of the Clayton-Bulwer Treaty between the two governments, which, at different periods of discussion, bore a threatening aspect, has resulted in a final settlgment entirely satisfactory to this government.
Here is no hint of any desire for exclusive control by the United States, but entire satisfaction with a final settlement of the construction of the treaty in which that point had not been raised; the United States was satisfied that Great Britain had placed herself outside of any claim to exclusive control. Henderson, p. 137, American Diplomatic Questions, says:
Fundamentally, the motives of these disagreements may be traced largely to suspicion. While neither party actually sought a monopoly of political control over the canal route, each power distrusted the other, and was ready to detect in every move of its opponent a covert attempt to secure those forbidden advantages.
As a matter of fact the treaty was a legitimate outcome of the policy of the United States Government up to that time as ex pressed by both executive and legislative branches. In 1826, three years after the enunciation of the Monroe Doctrine, Henry Clay, in his instructions to the delegates to the Panama Congress, said:
If a canal across the Isthmus be opened so as to admit of sea-vessels from ocean to ocean, the benefits of it ought not to be exclusively appropriated to any one Nation; but should be extended to all parts of the globe upon the payment of a just compensation or reasonable tolls.
On March 3, 1835, the Senate passed unanimously a resolution requesting President Jackson to consider the expediency of opening negotiations with other governments concerning Canal matters, in which occurs the expression:
securing for ever, by such stipulations, the free and equal right of navigating such canal to all such nations.
In 1839 the House, also unanimously, passed a resolution containing practically the identical expression quoted above. In 1846 came the treaty with New Granada already quoted; and, speaking of the Senate resolution quoted above in connection with that treaty, President Polk said:
There does not appear to be any other effectual means of securing to all nations the advantages of this important passage but the guarantee of great commercial powers that the Isthmus shall be neutral territory. The interests of the world at stake are so important that the security of this passage between the two oceans cannot be suffered to depend upon the wars and revolutions which may arise among different nations.
On Nov. 8, 1849, the American Minister, Mr. Lawrence, inquired of Lord Palmerston, among Other things,
whether the British Government will unite with the United States in guaranteeing the neutrality of a ship-canal, railway or other communication to be open to the world and common to all nations.
In his message to Congress, Dec. 4, 1849, President Taylor said:
should such a work be constructed, under the common protection of all nations, for equal benefits to all, it would be neither just nor expedient that any great maritime state should command the communications No such power should occupy a position that would enable it hereafter to exercise so controlling an influence over the commerce of the world, or to obstruct a highway which ought to de dedicated to the common use of mankind.
Then came the Clayton-Bulwer Treaty.
Throughout the years up to the Civil War, no desire for sole control was manifested in the United States. The underlying motive was the wish to have the Canal commercially free and open—an Open Canal Door, so to speak. As far as any military use of the Canal was concerned, that point of view did not greatly appeal to our people as yet, and inasmuch as they had equal rights under the treaty with Great Britain and all foreign nations they were content. Indeed, with dual control, or multiple control, the only solution practicable was the unrestricted right of all to use the Canal in a military way, i. e., for the passage of war vessels whether intent on war or peace.
After the Civil War a change in sentiment toward Canal matters began to manifest itself. Quoting Henderson, p. 138:
The United States emerged from its four years' conflict with enlarged ideas of her position in the world; the seeds of a new and more aggressive foreign policy had been sown. The progress of those ideas is marked by the Alaskan purchase, the attempts to secure naval bases in the West Indies, the expulsion of the French from Mexico, and by the evidences of a belief, then gradually forming in the minds of the people, that the United States should exercise sole political control over any Central American canal that should ever be built.
The rapid growth of the Pacific Coast, and the solidarity of the country resulting from the completion of the trans-continental railways, also doubtless directed attention to the Canal and to the undesirability of having it under any degree of control by foreign powers. In 188o President Hayes, in a special message (March 8) used the words so often quoted since:
The policy of this country is a canal under American control. The United States cannot consent to the surrender of this control to any European power, or to any combination of European powers . . . . An interoceanic canal across the American Isthmus will essentially change the geographical relations between the Atlantic and Pacific coasts of the United States, and between the United States and the rest of the world. It will be the great ocean thoroughfare between our Atlantic and Pacific shores, and virtually a part of the coast line" of the United States. Our merely commercial interest in it is greater than that of all other countries, while its relations to our power and prosperity as a nation, to our means of defense, our unity, peace, and safety, are matters of paramount concern to the people of the United States. No other great power would, under similar circumstances, fail to assert a rightful control over a work so closely and vitally affecting its interest and welfare.
But the new note was struck several years before 1880. Secretary Seward, who in 1862 thought the interest of the United States in the Panama route no "different from that of other maritime powers," and instructed our Ministers to Paris and London to inquire whether France and England would
unite with the United States in guaranteeing the safety of the transit route and the authority of the New Granadian confederation,
said, shortly after the expulsion of the French from Mexico:
The United States would not permit a public enemy of the American continent the use or advantages of a work executed by nations of the New World.
Although the Dickinson-Ayon Treaty with Nicaragua, concluded in 1867 (denounced by Nicaragua in 1902), had a clause in Art. XV embodying the agreement of the United States to use its influence
to induce them (other nations) to guarantee such neutrality and protection to all such routes of communication,
yet in 1868, in negotiating a new treaty with Colombia, Secretary Seward
inserted a clause that enemies of the United States should be excluded from the use of the proposed canal in time of war.
Colombia rejected this clause, being in favor of international control, and the United States Senate failed to recommend the ratification of the treaty. Rodrigues, in The Panama Canal, pp. 186-7, says that a new treaty was concluded by Minister Hurlbut in January, 1870, in which the United States guaranteed to Colombia that the Canal and its dependencies should be exempt from all hostile acts by other nations, and that both agreed to obtain from other nations a guarantee of like import. But:
Both parties reserved the right of passing their ships of war at all times, but the canal will be closed against the flag of all nations which may be at war with either of the contracting parties.
And he quotes Secretary Fish as follows, in reply to a memorandum from Mr. Hurlbut setting forth the Colombian desire to have a joint protectorate, all nations having equal control:
In the present state of international law such joint protectorate would be a source of future trouble, . . . . and might probably prove an obstacle to the ratification by the United States Senate of a treaty on the subject.
From the foregoing it appears that the Civil War marked the turn in the tide of opinion in this country from dual, or multiple, control and guarantee of neutrality to single control. After President Hayes' outspoken declaration in 188o the latter sentiment grew, and it finally showed out as a definite policy of conviction after the Spanish War left the United States with added responsibilities and a broader view of its position in the family of nations. But the Clayton-Bulwer Treaty stood squarely across the path of this policy, and until it was removed the policy could not be made effective. Of the efforts during the years from 1880 to 1901, to have the treaty modified, and of the less worthy efforts to show that it might be considered as voidable, it is unnecessary for the present purpose to speak; the change of sentiment has been dwelt upon because of its bearing on the Hay-Pauncefote Treaty as finally concluded.
But this change of sentiment, great as it was, was not complete because it only here and there showed signs that the military necessities of the United States were well understood. As an evidence of this it is only necessary to recall the original Hay- Pauncefote Treaty, concluded February 5, 1900, but not ratified, with its dual adoption of the Constantinople Rules, its agreement to invite foreign nations to adhere to it, and its prohibition of fortifications. Although objectionable features of the Clayton- Bulwer Treaty were removed so that the United States could own, construct and manage the Canal, the original Hay-Pauncefote draft failed to supersede that objectionable instrument explicitly, and included the three matters above noted. Even the Senate, though it struck out the article inviting the adherence of foreign powers and inserted a clause superseding the Clayton-Bulwer Treaty, and also one
for securing by its own forces the defense of the United States and the maintenance of public order,
yet recommended the ratification of the treaty with the prohibition of fortification included. Thus slowly did the idea of the military value of the Canal to the United States gain ground. That it at last did assert itself the treaty ratified in 1902 bears witness, with its remarkable and most significant omissions, which can only be understood in the light of a knowledge of what those omissions are and why they were made.
Summing up, "control" of the Canal now means to us the sole right to own, construct, maintain, operate and protect the Canal, and in doing the last we are not forbidden to fortify, nor to use our land and naval forces. Can this possibly mean that we must let our enemies in war have free use of the Canal militarily because we have entered into arrangements with two nations for the free use by mankind of the Canal under certain Rules for "neutralization"? The idea is unthinkable, certainly to the minds of men trained in military matters. In case of war with England, the treaty would go by the board; in case of war with any other maritime power, no direct treaty obligations exist. The only possible objection to our forbidding the Canal to the military use of possible enemies is that, by a solemn declaration to two powers, but to two powers only, we have "adopted" certain Rules as a basis for the "neutralization" of the Canal. If we are not at war ourselves, we are, by the moral obligation of those two treaties, bound to make the Canal actually neutral water to other belligerents. But why, if we are not to enjoy the military advantages that control and the right to fortify give when at war ourselves, should we have insisted upon being the sole guarantor, and, in effect at least, have insisted upon the right to fortify?
III.
Neutrality, as applied to a state, may be described as an attitude of its government, voluntarily assumed by itself alone, of abstention from acts in favor of either belligerent in a war to which the state practising neutrality is not a party. Inherent to the idea of neutrality is a state of war that calls it forth; moreover, since neutrality is only founded on voluntary action, it is terminable at the will of the nation practising it.
Neutralization, on the other hand, is an attitude imposed by conventional arrangement upon a government, usually, but not necessarily, with its consent, by virtue of which it always remains neutral in a war between other states, its territory is exempted from warlike acts of belligerents, and its own immunity from attack is guaranteed. Such a guarantee, to be effective, can only be given by a concert of powers.
By a natural extension of language the term neutralization is applied to persons and things, and has thus come into use in connection with the Suez and Panama Canals. Undoubtedly there is a proper use of the term in this connection; but it is also true that the word has been used in a loose and inexact way, not only in informal speech and print, but as well in formal documents, and even in treaties. Latane considers Holland the first writer of recognized merit to give a definition of the term "neutralization." Holland says:
So far "neutrality" is always the correlative of "belligerency." A State is neutral which chooses to take no part in a war, and persons and Property are neutral which belong to a State occupying this position. The term has in recent times received a larger application. A condition of neutrality, or one resembling it, has been created, as it were, artificially, and the process has been called "neutralization."
States have been permanently neutralized by convention. Not only is it preordained that such States are to abstain from taking part in a war into which their neighbors may enter, but it is also prearranged that such States are not to become principals in a war. By way of compensation for this restriction on their freedom of action, their immunity from attack is guaranteed by their neighbors, for whose collective interests such an arrangement is perceived to be on the whole expedient.
"To neutralize" should mean "to bestow by convention a neutral character upon States, persons, and things which would or might otherwise bear a belligerent character."
Lawrence says:
In ordinary neutrality there are two elements—the element of abstention from acts of war, and the element of freedom to abstain or not to abstain at pleasure. Take away the latter and we obtain neutralization. A neutral state can, if it pleases, cease to be neutral and join in the war Neutralized states, persons and things, occupy exactly the same position towards hostilities actually in progress as neutral states, persons or things; but they differ from the latter in that they are bound by international agreement to take no part in warlike acts, and are protected from warlike operations as long as they respect this obligation.
So great a change in their legal position cannot be made without the consent of all parties affected thereby. A power is incapable of neutralizing its territory by its own mere declaration, because the rights and duties of other powers would be altered considerably by such neutralization, and their consent must therefore be obtained before it can be legally carried out. Similarly two or three powers are incapable of neutralizing the territory of one of their number; for they have not authority to legislate for the civilized world, and to warn other powers off a spot where belligerent operations could previously be carried on by all who chose to go to war with the state which owned it. The common law of nations cannot be overridden by the ipse dixit of one of the communities subject to it, or even by a group of them. The change, if it is to be internationally valid, must be the result of a general agreement. At the very least it must be accepted by all the important states concerned in the matter. Any smaller number may bind themselves to one another to protect a territory from hostile operations; but they cannot alter its international status, or render an attack upon it an offence against the public law of the civilized world.
Wharton says:
It is to be observed that the word "neutrality" in the convention of 1846, is not used in the technical sense of "neutralization." "Neutralization" . . . . is the assignment to a particular territory or territorial water of such a quality of permanent neutrality in respect to all future wars as will protect it from foreign belligerent disturbance. This quality can only be impressed by the action of the great powers by whom civilized wars are waged and by whose joint interposition such wars could be averted. As the "neutrality" of the Isthmus is, by the convention before us, guaranteed only by the United States, it is not a neutralization in the above sense, but only a pledge and guarantee of protection.
For other references in this connection see Annuaire de Institut de Droit International, 1878-9; Manuel de Droit International Public, Bonfils, 1905, secs. 1443 and 348, 349, 359, 361; America's Foreign Policy, Woolsey, 1898, pp. 147-9; American Diplomatic Questions, Henderson, 1901, pp. 179-81.
After quoting Holland and Lawrence, in part as above, and briefly mentioning well-known cases of neutralization, Latane goes on to say:
It follows, from a study of the foregoing cases, that neutralization implies:—(1) a formal act or agreement. It is a matter of convention constituting an obligation—not a mere declaration revocable at will. (2) It implies a sufficiently large number of parties to the act to make the guaranty effective. (3) It implies absence of fortifications. The mere existence of fortifications would impeach the good faith of the parties to the agreement! (4) It implies certain limitations of sovereignty over the territory or thing neutralized. (5) It implies a more or less permanent condition. In this it differs from ordinary treaty stipulations terminated by war between the contracting partes. A treaty establishing neutralization is brought into full operation by war.
When we come to extend the same principle to waterways, however, we find the conditions to be altogether different. The first and most fundamental difference is that States have acquired by international usage and prescription, rights and interests in the territorial waters of other States which they have no claim to exercise in respect to land. Secondly, armies and implements of war are absolutely excluded from the territory of neutralized States, while neutralized waterways are by design open to the innocent passage of warships, not only in time of peace but also in time of war. Thirdly, the warfare of the future will in all probability be confined more and more to the sea, thus enhancing the strategical value of waterways and canals which are adjuncts to the high seas as well as increasing the temptation to appropriate them for national purposes.
IV.
The Suez and Panama Canals are waterways in a class by themselves having these points of similarity: each is an artificial passage through an isthmus connecting two continents; by each many sea routes are shortened thousands of miles; each lies entirely within the territory of a weak power, unable to protect it. Had either been wholly within the territory of a strong power, able to finance and construct it, and to protect it afterward, there can be little doubt of its status, which would have been just what that strong power chose to make it. There are points of dissimilarity also, one being that, whereas the Suez Canal was financed and constructed by a private company, of which the Government of Great Britain is now, but was not originally, a shareholder, the Panama Canal is entirely a government enterprise of the United States. Another is the comparative proximity of the Suez Canal to several powerful European nations, while an ocean separates the Panama Canal from all nations of the first class except the United States. A third is the fact of the paramount interest of the United States in the Panama Canal because of its relation to communications between the Atlantic and Pacific coasts. President Hayes' remark that a canal on the Isthmus is virtually a part of our coast line has taken over twenty years to be impressed in its full significance Upon the American public; but it has been so impressed at last, resulting in governmental finance, construction and control. It is true that Great Britain has far greater interest in the Suez Canal than any other power because of her tremendous commerce and the defense of her eastern possessions; but her interest is bound up with the Suez Canal in an entirely different way from that of the United States in the Panama Canal. Her great concern is in free Passage for her commerce, and neutralization of the Canal is to her great advantage. A nation standing across the Mediterranean at its narrowest part, and commanding the entrance to the Red Sea from Perim Island and Aden, need not worry unduly about the actual use of the Suez Canal proper by an enemy power. At the meeting of delegates in Paris in 1885 (to consider the financial position of Egypt), the Russian delegate, M. Hirovo, maintained that
the treaty would be illusory unless the approaches of the canal were made to comprise a neutral passage through the Red Sea into the Gulf of Aden. (See International Law. Westlake, Part I, p. 328.)
In spite of the dissimilarities in the two cases, the status of the Suez Canal is the only practical precedent with which to study that of the Panama Canal, and hence the former must be thoroughly understood. The early history of the Suez Canal may be briefly stated. It was built by a company organized by de Lesseps under a firman granted in 1856, and was opened in 1869. During this period the British Government's attitude was one of uncompromising hostility, and eminent British engineers and the British press had declared its impracticability, or its commercial failure if completed. As soon as it had justified itself, however, Great Britain was not slow to recognize her interest in it, and when Egyptian embarrassments placed upon the market the shares held by the Khedive the British Government purchased them in 1875, thus becoming the largest shareholder. In 1882 occurred the revolt of Arabi, attended by the massacre at Alexandria. Upon Great Britain alone fell the task of restoring order, though she invited France and Italy to undertake it with her. Both declined, and the action of France in particular was short-sighted, as shown by subsequent events. Great Britain's forces occupied Egypt, and she has not seen the way clear as yet to withdraw her troops. This naturally has been a source of irritation to France until, in 1904, the matter was adjusted by the Anglo-French entente, in which it was one of a number of questions amicably settled by mutual concessions.
When the Suez Canal was constructed there was no precedent upon which to base its status with respect to free navigation, and we may therefore expect to find an evolution of sentiment in this regard. The firman of 1856 said, in Article XIV:
We solemnly declare, for us and our successors, subject to the ratification of His Imperial Majesty, the Sultan, the Grand Maritime Canal from Suez to Pelusium, and its dependent ports, open forever as neutral passages to all ships of commerce passing from one sea to the other . . .
This was repeated in another firman ten years later, in which, by Article 10, the Egyptian Government reserved the right of
occupying every position or strategical point which it should deem necessary for the defense of the country, such occupation not to obstruct the navigation . . . .
The Sultan confirmed this firman in March, 1866.
When the Canal was opened it was thus territorial water, and in the charter granted by the sovereign power, a weak one, to the foreign constructing and operating company, the only stipulation regarding free use referred to merchant vessels alone. But it was used by the war vessels of both belligerents in the -Franco- Prussian War without complaint, though no formal stipulation had been made by the Porte allowing its use by any war vessels whatever.
In 1873 the international movement toward a definitive agreement about the Canal began when the Sultan invited an international commission to sit at Constantinople. Its object was to arrange a schedule of dues, about which disputes had arisen, and in its scale dues for men-of-war and transports were inserted without any exception of belligerents. Nys quotes one of its resolutions as follows:
desormais la navigation du Canal de Suez serait commune aux batiments de commerce, aux batiments de guerre et aux batiments affretes pour le transport des troupes.
The declaration was signed by the representatives of all the maritime powers of Europe except Portugal, by the Porte, and by the Canal Company, and was proclaimed by the Porte in December of that year.
But the question was not considered satisfactorily settled, for no provision in precise terms covered the case of a war in which the Porte might be a belligerent, and discussion went on. In 1873, the same year in which Great Britain became a shareholder, Sir Travers Twiss proposed the neutralization of the Canal, and the subject was considered by the Institute of International Law, which adopted a proposed international declaration in 1879. Meantime, in 1877-8 occurred the Russo-Turkish War in which Turkey was a belligerent, and the British Government early in 1877 seized the occasion to announce at a meeting of the shareholders, and to send a communication of the same import to the Russian ambassador, that
An attempt to blockade or otherwise interfere with the canal or its approaches would be regarded by Her Majesty's government as a menace to India and a grave injury to the commerce of the world. On both these grounds any such step, which they hope and believe there is no intention on the part of either belligerent to take, would be incompatible with the maintenance by them of an attitude of passive neutrality . . . . Her Majesty's government are firmly determined not to permit the canal to be made the scene of any combat or warlike operations.
Russia replied that
the Imperial cabinet will neither blockade nor interrupt, nor in any way menace, the navigation of the Suez Canal.
Great Britain also sent an intimation of the same nature to the Porte and the Khedive. In May, 1877, de Lesseps made a proposition to the British Government for the neutralization of the Canal, to which Lord Derby replied that the proposal was "open to so many objections of a political and practical character" that the British Government could not undertake to recommend it.
The Porte's adoption of the work of the international commission of 1873, England's attitude in 1877, and Russia's acquiescence, together constituted a status, by general understanding but not by convention, that no hostilities nor warlike operations should take place in the Canal, that its mouths should not be subject to blockade, that on such a footing the Canal should be free to ships of war of belligerents, and that Turkey, if a belligerent, should stand on the same footing in this regard as other powers. When Great Britain intervened single-handed in Egypt in 1882, she occupied the line of the Canal, but it was not in violation of the spirit of this understanding, for she undertook her task singly only after failing to get the co-operation of France and Italy, she did it under the authority and in the interest of the Khedive, and one great object was to protect the Canal itself.
But it was evident that the status of the Canal virtually in the control of the strongest maritime power of the world, as was the case after Great Britain's intervention and especially after the refusal of that country to share again with France the dual control in Egypt that had existed prior to 1882, could not be satisfactory to the other powers. Great Britain recognized the necessity for a definite conventional agreement in 1883 when (January 3) Lord Granville addressed a circular note to the great European powers suggesting a series of rules as a basis
to put upon a clearer footing the position of the Canal for the future, and to provide against possible dangers,
thus reversing the position taken by Lord Derby in 1877. Lord Granville's dispatch bore little fruit until early in 1885, when the representatives of the great powers met in London to reconsider the financial position of Egypt. Among other things their Declaration provided for a commission to meet in Paris March 30 for the preparation of an act for
the establishment of a definitive regulation, guaranteeing at all times, and for all Powers, the freedom of the Suez Canal . . . . taking for its basis the circular of the Government of Her Britannic Majesty of January 3, 1883.
The commission met, debated, and adjourned on June 17 without reaching any conclusion. During the autumn it was
ascertained that the other Powers were ready to concur in any solution of the question in dispute which might be acceptable both to Great Britain and France. Negotiations were accordingly resumed between those Powers on November 12, and a Convention was signed on their behalf at Paris, on October 24, 1887, which after receiving the approval of the other Powers in succession, that of the Porte being delayed till June 29, 1888, was eventually signed at Constantinople on October 29, by the Plenipotentiaries of the nine Powers, and was ratified on December 22, 1888.
Westlake, Part I, p. 328, says:
The ratifications were deposited at Constantinople on 22 Dec. 1888, but not exchanged;
this statement is not verified by any references at hand, though it is intrinsically probable for reasons that will now appear. At the last sitting of the Commission at Paris on June 13, 1885, Sir Julian Pauncefote made the following reservation on the part of his government:
The delegates of Great Britain, in presenting this text of a treaty as the definitive regime intended to guarantee the free use of the Suez Canal, consider it their duty to formulate a general reservation as to the application of its provisions in so far as they would not be compatible with the transitory and exceptional state in which Egypt now exists and as they might fetter the freedom of action of their government during the occupation of Egypt by the forces of Her Britannic Majesty.
This reservation was repeated by Lord Salisbury before the convention was signed in 1887, and carefully brought to the knowledge of all the powers concerned. On July 12, 1898, Mr. Curzon replied in Parliament to a question:
The Convention in question (that of Constantinople, 1888) is certainly in existence, but . . . . has not been brought into practical operation. This is owing to the reserves made on behalf of Her Majesty's Government by the British delegates at the Suez Canal Commission in 1885, which were renewed by Lord Salisbury, and communicated to the Powers in 1887.
Here is a condition short of complete fulfilment of the terms of the convention, and it may very possibly have prevented the exchange of the ratifications. The terms of the convention are given below, and it will be observed that the word "neutralization" does not occur. The convention was signed by representatives of Great Britain, Germany, Austria, Spain, France, Italy, the Netherlands, Russia and Turkey.
The preamble recites that the several rulers
wishing to establish, by a Conventional Act, a definite system destined to guarantee at all times, and for all the Powers, the free use of the Suez Maritime Canal, and thus to complete the system under which the navigation of this Canal has been placed by the Firman of His Imperial Majesty the Sultan, dated the 22nd February, 1866 (2 Zilkade, 1282), and sanctioning the Concessions of His Highness the Khedive, have named as their Plenipotentiaries . . . . who . . . . have agreed upon the following Articles:—
ARTICLE I.
The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag.
Consequently, the High Contracting Parties agree not in any way to interfere with the free use of the Canal, in time of war as in time of peace.
The Canal shall never be subjected to the exercise of the right of blockade.
ARTICLE II.
The High Contracting Parties, recognizing that the Fresh-Water Canal is indispensable to the Maritime Canal, take note of the engagements of His Highness the Khedive towards the Universal Suez Canal Company as regards the Fresh-Water Canal, which engagements are stipulated in a Convention bearing date the t8th March, 1863, containing an exposé and four Articles.
They undertake not to interfere in any way with the security of that canal and its branches, the working of which shall not be exposed to any attempt at obstruction.
ARTICLE III.
The High Contracting Parties likewise undertake to respect the plant, establishments, buildings, and works of the Maritime Canal and of the Fresh-Water Canal.
ARTICLE IV.
The Maritime Canal remaining open in time of war as a free passage, even to the ships of war of belligerents, according to the terms of Article I of the present Treaty, the High Contracting Parties agree that no right of war, no act of hostility, nor any act having for its object to obstruct the free navigation of the Canal, shall be committed in the Canal and its ports of access, as well as within a radius of 3 marine miles from those ports, even though the Ottoman Empire should be one of the belligerent Powers.
Vessels of war of belligerents shall not revictual or take in stores in the Canal and its ports of access, except in so far as may be strictly necessary. The transit of the aforesaid vessels through the Canal shall be effected with the least possible delay, in accordance with the Regulations in force, and without any other intermission than that resulting from the necessities of the service.
Their stay at Port Said and in the roadstead of Suez shall not exceed twenty-four flouts, except in case of distress. In such case they shall be bound to leave as soon as possible. An interval of twenty-four hours shall always- elapse between the sailing of a belligerent ship from one of the ports of access and the departure of a ship belonging to the hostile Power.
ARTICLE V.
In time of war belligerent Powers shall not disembark nor embark within the Canal and its ports of access either troops, munitions, or materials of war. But in case of an accidental hindrance in the Canal, men may be embarked or disembarked at the ports of access by detachments not exceeding 1,000 men, with a corresponding amount of war material.
ARTICLE VI.
Prizes shall be subjected, in all respects, to the same rules as the vessels of war of belligerents.
ARTICLE VII.
The Powers shall not keep any vessel of war in the waters of the Canal (including Lake Timsah and the Bitter Lakes).
Nevertheless, they may station vessels of war in the ports of access of Port Said and Suez, the number of which shall not exceed two for each Power.
This right shall not be exercised by belligerents.
ARTICLE VIII.
The Agents in Egypt of the Signatory Powers of the Present Treaty shall be charged to watch over its execution. In case of any event threatening the security or the free passage of the Canal, they shall meet on the summons of three of their number under the presidency of their Doyen, in order to proceed to the necessary verifications. They shall inform the Khedivial Government of the danger which they may have perceived, in order that that Government may take proper steps to insure the protection and the free use of the Canal. Under any circumstances, they shall meet once a year to take note of the due execution of the Treaty.
The last-mentioned meetings shall take place under the presidency of a Special Commissioner nominated for that purpose by the Imperial Ottoman Government. A Commissioner of the Khedive may also take part in the meeting, and may preside over it in case of the absence of the Ottoman Commissioner.
They shall especially demand the suppression of any work or the dispersion of any assemblage on either bank of the Canal, the object or effect of which might be to interfere with the liberty and the entire security of the navigation.
ARTICLE IX.
The Egyptian Government shall, within the limits of its powers resulting from the Firmans, and under the conditions provided for in the present Treaty, take the necessary measures for insuring the execution of the said Treaty.
In case the Egyptian Government should not have sufficient means at its disposal, it shall call upon the Imperial Ottoman Government, which shall take the necessary measures to respond to such appeal; shall give notice thereof to the Signatory Powers of the Declaration of London of the 17th March, 1885; and shall, if necessary, concert with them on the subject.
The provisions of Articles IV, V, VII, and VIII shall not interfere with the measures which shall be taken in virtue of the present Article.
ARTICLE X.
Similarly, the provisions of Articles IV, V, VII, and VIII shall not interfere with the measures which His Majesty the Sultan and His Highness the Khedive, in the name of His Imperial Majesty, and within the limits of the Firmans granted, might find it necessary to take for securing by their own forces the defence of Egypt and the maintenance of public order.
In case His Imperial Majesty the Sultan, or His Highness the Khedive, should find it necessary to avail themselves of the exceptions for which this Article provides, the Signatory Powers of the Declaration of London shall be notified thereof by the Imperial Ottoman Government.
It is likewise understood that the provisions of the four Articles aforesaid shall in no case occasion any obstacle to the measures which the Imperial Ottoman Government may think it necessary to take in order to insure by its own forces the defence of its other possessions, situated on the eastern coast of the Red Sea.
ARTICLE XI.
The measures which shall be taken in the cases provided for by Articles IX and X of the present Treaty shall not interfere with the free use of the Canal. In the same cases, the erection of permanent fortifications contrary to the provisions of Article VIII is prohibited.
ARTICLE XII.
The High Contracting Parties, by application of the principle of equality as regards the free use of the Canal, a principle which forms one of the bases of the present Treaty, agree that none of them shall endeavour to obtain with respect to the Canal territorial or commercial advantages or privileges in any international arrangements which may be concluded. Moreover, the rights of Turkey as the territorial Power are reserved.
ARTICLE XIII.
With the exception of the obligations expressly provided by the clauses of the present Treaty, the sovereign rights of His Imperial Majesty the Sultan, and the rights and immunities of His Highness the Khedive, resulting from the Firmans, are in no way affected.
ARTICLE XIV.
The High Contracting Parties agree that the engagements resulting from the present Treaty shall not be limited by the duration of the Acts of Concession of the Universal Suez Canal Company.
ARTICLE XV.
The stipulations of the present Treaty shall not interfere with the sanitary measures in force in Egypt.
ARTICLE XVI.
The High Contracting Parties undertake to bring the present Treaty to the knowledge of the States which have not signed it, inviting them to accede to it.
The express and only reason given by Great Britain for any reservations was the transitory and exceptional state" of Egypt. That "state" exists still so far as the continued occupation of Egypt by Great Britain goes, but the conditions are now entirely changed by the Anglo-French entente. At the time the Constantinople Convention was concluded the British occupation of Egypt was bitterly opposed in France, and to this opposition may be traced the reservations made by Great Britain. When, however, France and Great Britain came to a happy understanding in 1904, the occupation of Egypt was acquiesced in by France—virtually confirmed—so long as Great Britain considers it to her interest to remain. Hence, as Great Britain's chief concern in Egypt was with France when the Constantinople Convention was concluded, the arrival at the understanding of 1904 made it no longer necessary to hold to the reservations of 1885 and 1887. This is borne out by the statement made on August 8, 1904, by Earl Percy, in the House of Commons, replying to a question addressed to the Under Secretary for Foreign Affairs. He remarked that Germany, Austria-Hungary and Italy have
undertaken not to obstruct the action of Great Britain in Egypt by asking that a limit of time be fixed for the British occupation, or in any other manner, and agreed that the execution of the last sentence of par. r, as well as all of par. 2 of Art. VIII of the Treaty of October 29, 1888, shall remain in abeyance.
The Anglo-French Declaration was made on April 8, 1904. Article I says in part:
His Britannic Majesty's Government declare that they have no intention of altering the political status of Egypt. The Government of the French Republic, for their part, declare that they will not obstruct the action of Great Britain in that country by asking that a limit of time be fixed for the British occupation or in any other manner . . . .
Article VI reads:
In order to insure the free passage of the Suez Canal, His Britannic Majesty's Government declare that they adhere to the stipulations of the Treaty of October 29, 1888, and that they agree to their being put in force. The free passage of the Canal being thus guaranteed, the execution of the last sentence of paragraph i as well as of paragraph 2 of Article VIII of that Treaty will remain in abeyance.
The last sentence of Article VI constitutes a further exception, but a reference to the subject referred to shows that the matter is unimportant: the principle of Article VIII is conserved, the annual meeting remaining in abeyance, as it has remained since 1888. As for the broad stipulations of the treaty, Great Britain not only declares its adherence, but its agreement to their being put in force. The language is plain and unequivocal, and there is no apparent reason to doubt Great Britain's good faith or impute to her any arriere pensee. If the text alone does not carry conviction, it may be worth while to compare the language of its terms with that used by Mr. Curzon in Parliament in reply to an interpellation (see p. 89 above). There it was said of the Constantinople Convention that it "has not been brought into practical operation." In Article VI of the Anglo-French Declaration the British Government
declare that they adhere to the stipulations of the Treaty of October 29, 1888, and that they agree to their being put into effect.
The Marquess of Lansdowne, in a dispatch to the British Ambassador at Paris dated April 8, 1904, enclosing the draft of the Anglo-French Declaration of the same date, said:
It will be observed that an Article has been inserted in the Agreement declaring the adhesion of His Majesty's Government to the Treaty of the 29th October, 1888, providing for the neutrality of the Suez Canal in time of war. In consequence of the reservations made by Lord Salisbury at the time respecting the special situation of this country during the occupation of Egypt, some doubt existed as to the extent to which Great Britain considered herself bound by the stipulations of the Convention. It appears desirable to dissipate any possible misunderstanding by specifically declaring the adhesion of His Majesty's Government. It is, however, provided that certain executive stipulations which are incompatible with Lord Salisbury's reservations should remain in abeyance during the continuance of the occupation.
The understanding of Great Britain's present attitude toward the Constantinople Convention may be shown by quotations from well-known writers who have written since the Anglo-French Declaration. Holland says:
The free passage of even belligerent war-ships through the Suez Canal is of course specially guaranteed by the Convention of 1888.
Oppenheim says:
But article 6 of the Declaration respecting Egypt and Morocco signed at London on April 8, 1904, by Great Britain and France has done away with this reservation.
Westlake says, after quoting Article VI of the Anglo-French Declaration:
so it is to be expected that the ratifications will be exchanged, if they have not already been so.
This shows the interpretation of three British authorities. The last edition of Bonfils, p. 281, notes the terms of Article VI of the Declaration. Despagnet says:
A la conference de 1885 et en signant le traite de 1888, l'Angleterre avait fait des reserves en ce qui concernait son droit de disposer du canal pour sauvegarder sa situation en Egypte tant qu'elle occuperait ce pays. Dans son arrangement general du 8 Avril 1904 art. 6 avec la France, elle a renonce a ces reserves et accepte l'application immediate du traite de 1888.
Professor Politis, Fellow of the Faculty of Law of the University of Poitiers and Associate of the Institute of International Law, in a discussion of the Declaration concerning Egypt and Morocco, after remarking that the reservations of 1885 and 1887 put the treaty at the mercy of (a la discretion de) Great Britain, which could, according to her interests, permit or refuse its application, says later:
In fact the freedom of the Canal continues to remain at the mercy of Great Britain.
There can be no doubt of this, considering Great Britain's sea power and her situation in Egypt; but his next words signify what he considers its status in law since the Anglo-French Declaration. He continues:
Mais on peut dire qu'en droit, le regime du canal se trouve fortifie et mis hors de doute, par la cessation de tout malentendu au sujet du caractere obligatoire de la convention de Constantinople.
Nys does not mention either the reservations or their renunciation, but his work on International Law, though its publication began in 1904, must have been written too early for the latter. Enough has been quoted to show the understanding of well-known continental authors as to the present status of the Constantinople Convention. As has before been stated, there is no sufficient reason to doubt Great Britain's good faith in the Declaration of April 8, 1904. Her supreme interest is in absolute freedom of traffic for her merchant vessels and men-of-war, which the Convention of 1888 guarantees; her understanding with France removes any anxiety about her occupation of Egypt; and it is not difficult to imagine her freedom from care regarding the use of the actual waters of the Canal and its approaches by the warships of any future enemy, situated as she is at Malta and the mouth of the Red Sea.
We may, therefore, regard the Constantinople Convention in full effect. It remains to consider how far the Canal is "neutralized" by that convention, in the sense of the word as developed in Part III. Taking Latane's summary (p. 84) point by point, it appears that:
(1) The Constantinople Convention is a formal act between nine powers of Europe, including all the great European maritime powers, and its terms specify perpetuity; hence it is not revocable at will except by the concurrence of all the signatory powers, or by force majeure.
(2) The signatory powers include all the great military powers of Europe. This fact should make the guaranty effective so far as any pact can to which the several nations have pledged their faith.
(3) Fortifications are forbidden (Articles VIII and IX), and Article VII is along the same precautionary line.
(4) There is a limitation of full rights of sovereignty in the mere fact that Turkey expressly surrenders for herself certain rights she would otherwise have as a belligerent, and gives by convention to her possible future enemies certain rights they could only have otherwise by force, in waters lying entirely within her territorial limits; and also in the provisions of Article VIII and Article IX.
(5) The word "always" in Article I, the provisions of Article XV, and the fact that the words "in time of war" occur repeatedly in the instrument, all go to establish a permanent condition, and one brought into complete operation by a state of war.
Considering next Latane's extension of the principle of neutralization to waterways, his first and third points are covered by the existence of the Constantinople Convention itself, the concurrence of many powers being as great a preventive as possible against "the temptation to appropriate them (the Canal) for national purposes." The second point has some application. French writers quite generally say that the Canal is not "neutralized" by the Convention because the passage of belligerent ships is permitted, and Westlake makes a similar remark (Part I, p. 330, footnote). This is undoubtedly true, considering the neutralization of the Canal on a strict parallel with the neutralization of territory. But when the difference between the laws of land warfare and maritime warfare is taken into account, it may safely be said that the Suez Canal is neutralized. Without bad faith no signatory power can appropriate the Canal to its sole use for belligerent purposes, or take steps to forbid the passage of the warships of its enemy; and the combined influence of the signatory powers will doubtless discourage non-signatory powers from any such attempt. Thus the Suez Canal is neutralized although the word "neutralization" does not occur in the Convention of 1888, the idea being conveyed by such terms as "free and open," "free use," "open in time of war" and "principle of equality," as well as by the prohibitions of the instrument. It is interesting here to note Lord Granville's instructions to the British delegates to the Paris Commission in his dispatch of May 2, 1885:
In order to prevent future misapprehension as to the views of Her Majesty's Government with regard to the Suez Canal, I have to request you to be careful during the discussion attending the preparation of the draft regulations regarding the canal, to avoid the use of the word "neutrality" as applied to the canal, and to adhere to the term "freedom" or "free navigation," as used in the declaration of the 17th March, and in my circular dispatch of the 3rd January, 1883.
Although the delegates replied to Lord Granville's caution that there would be no danger in the use of the word neutrality
inasmuch as there has been common accord from the first that the term, as applied to the canal, had reference only to the neutrality which attaches by international law to the territorial waters of a neutral state in which a right of innocent passage for belligerent vessels exists, but no right to permit any act of hostility,
yet his views prevailed in the finished instrument. The question naturally arises whether the growth of sentiment in the succeeding years is sufficient to account for the use of the word "neutralization" in the ratified treaty concluded by Lord Pauncefote with Mr. Hay.
Turning now to that treaty, and applying the same criteria as have been used above, it appears:
(1) There is a formal act of agreement between the United States and Great Britain, and another, hinging on the first, between the United States and Panama: but these are all. In case of war with Great Britain the former treaty would go to the winds.
(2) There is a lack of sufficient number of states, conventionally bound, to make the treaty effective if the United States wishes to abrogate it by notice, or if it is automatically abrogated by war with Great Britain. This is not to say that a coalition could not force the United States to take a desired line of action, but simply that no states are pledged to such collective action by treaty engagements.
(3) Fortifications are not forbidden by the treaty, and the circumstances attending the omission of the prohibition from the final draft of the treaty have been noted above. Further, in the treaty with Panama the United States explicitly reserved the right to fortify, giving an additional notice to the world, if one were needed, as to her attitude regarding this particular right.
(4) There is a limitation of the sovereignty of the territorial power, which by the terms of the treaty with Panama, concluded exactly two years after the Hay-Pauncefote Treaty, descends in some manner to the United States, so long as the latter treaty stands. But these limitations are far from going to the extent of those established in the Constantinople Convention. Moreover, by the terms of Panama's treaty with the United States the limitations upon the former's sovereignty are yielded to one nation only, and that a powerful one, which virtually assumes a protectorate of Panama; Egypt, on the other hand, is a suzerainty of Turkey, and not an independent state, and the limitations of sovereignty imposed by the Constantinople Convention are upon Turkey, herself a weak state, and are yielded to all the great states of Europe acting in concert.
(5) The permanency of the treaty as toward Great Britain exists as long as we are at peace with her, and ceases whenever we choose to engage her in war. To other nations, its provisions are simply a declaration of intentions. Beyond equality of treatment no other nation has a right to hold us to an observance of the Rules.
Thus in essential particulars the Hay-Pauncefote Treaty does not, and can not, establish "neutralization." Using the word, the treaty fails to secure the fact in any exact sense, in which it is precisely the reverse of the Convention of 1888. It is unfortunate that the word should have been used at all, and it is regrettable that the distinguished American negotiator did not, both in this treaty and the later one with Panama, take his guide from Lord Granville's letter of instructions in 1885 to the delegates to the Paris Commission. The reason why the British negotiator allowed the use of the word is not difficult to see. But with or Without the word, the Hay-Pauncefote Treaty does not establish the neutralization of the Panama Canal.
Reviewing this phase of the question before us it is evident that the status of the Suez Canal as regards neutralization does not furnish any real precedent for that of the Panama Canal. The former status rests upon a convention that is international in the broad sense of being subscribed to by a sufficient number of powerful states to enforce its provisions against the world, and a convention in which the rules governing neutralization are declared by those states jointly. The latter status rests upon the provisions of the Hay-Pauncefote Treaty (upon which the treaty with Panama hinges), which is international only in the narrow sense that more than one nation is a signatory power. Moreover, even in that treaty the language is: "The United States adopts. . . ." It only remains to add that the Constantinople Rules were not adopted until nearly twenty years after the opening of the Suez Canal, during which its free use for navigation gave to the users a sort of prescriptive interest that had its great effect during the formulation of the Rules; the Rules for the use of the Panama Canal will not go into effect for a decade to come.
V.
In the summer of 1906 the writer was much impressed by a remark made by a gentleman whose long and distinguished public service entitles his words to great respect. He said, in effect, that in reality there is no such thing between nations as friendship, beyond the limits of self-interest. Within a twelve-month another gentleman of similar long and distinguished public service said the same thing, and in almost the same words, in a public speech. To one who heard both, the language was so much alike as to be startling. The idea expressed is, of course, at the bottom of our reason for the maintenance of national military forces, but it is rarely heard in such concrete expression; and if appreciated at all, it is not fully realized by those who, on the one hand, hope to secure peace by conventions, or, on the other, rely for the maintenance of our prestige and national safety upon our potential strength, or worse yet upon bombast, which is the daughter of ignorance. The recent humiliation of Russia has given ample evidence of the insufficiency of potential strength, and of the danger that lies in a contempt of the adversary based upon ignorance.
The United States has acquired—for herself alone—far-reaching rights in Panama. By that very fact she has assumed singlehanded equally far-reaching obligations, for rights entail obligations. One of these obligations is the protection of the Canal, and the question must be met how that protection is to be extended. Were the Canal really neutralized, its protection might be held to lie in the moral force exerted by a union of powerful states bound together to maintain its neutralization. But it has been pointed out that the United States is the sole sponsor for the Canal, and the contention is made that the Canal is, therefore, not neutralized. If that contention be admitted it has a great bearing on the protection of the Canal. How shall we maintain our rights there, or discharge our obligations, if some powerful nation shall feel strong enough to gainsay our pretensions at a future day? There is no answer apparent, consistent with our attitude, that leaves out military force.
This again leads to other questions. In what form shall military force be manifested? Shall the defense of the Canal be a navy function, or an army function, or shall it devolve upon both services? Shall there be permanent fortifications? It has been held in some quarters that no permanent fortifications are needed for the defense of the Canal, which will be sufficiently guaranteed by the navy. To the mind of the writer this is a grievous error; he firmly believes that no complete defense of the Canal is possible that leaves out either service, but that the defense of the Canal is primarily an army function and only incidentally a navy function, and that permanent fortifications are a necessity. Not to have permanent fortifications at the Canal will operate to tie the navy to the Canal region in war, and that will mean partial paralysis. The navy must be free to go where it can do the most good, and without any drag upon its freedom of action due to a knowledge that in going it may have to leave open vital interests dependent upon it alone. The Canal zone needs permanent fortifications just as truly as does New York City. With them, if the navy be near, it will add greatly to the defense; but if the best interests of the country call it far away the Canal will still be amply protected.
The attitude of the United States toward other nations is one of saying virtually: "Hands off! The Canal is the affair of this nation alone." If the Canal zone be unfortified and ungarrisoned, that attitude is merely bluff. It is the writer's conviction that the United States will fail in its manifest duty if it neglects to fortify the Canal.
VI.
In what precedes certain facts have been presented and certain opinions advanced regarding the status of the Panama Canal. In conclusion the principal of these are summarized as follows: .
The facts are:
(1) The Canal is owned by the United States Government, as permitted by the Hay-Pauncefote Treaty. There is no company, there are no shares, and hence no foreign government or citizen has any vested property rights in the Canal, the treaty rights guaranteed to Panama alone excepted.
(2) The "construction, maintenance, operation, sanitation and protection" of the Canal belong exclusively to the United States Government.
(3) Commercial freedom of transit is guaranteed. That transit in time of war in included is evident from the Rules relating to belligerents.
(4) Free transit of vessels of war is guaranteed. That transit in time of war is included is evident from the Rules relating to belligerents.
(5) By implication, due to the absence of prohibitions in the Hay-Pauncefote Treaty, the United States has the right to fortify the Canal. By specific stipulation in the Hay-Bunau-Varilla Treaty she has that right, and in that stipulation has proclaimed her belief that the right exists. Further, this right is affirmed by the so-called Spooner Act of June 28, 1902, which, though a domestic law, is open to be read by the world.
The opinions are:
(1) The Canal is not neutralized in any proper sense of the word.
(2) The free transit of vessels of war in time of war can not be held to apply to enemies of the United States when the United States is a party to the war. If Great Britain should ever become hostile, the treaty establishing the Rules would be suspended by the existence of war; with other possible maritime enemies the United States has no treaty.
(3) It is the duty of the United States to erect and garrison permanent defenses for the protection of the Canal.