The Hay-Pauncefote treaty, negotiated in 1901 between the United States and Great Britain, is the basis of the international status of the Panama Canal. It superseded the Clayton-Bulwer treaty of 1850 between the same nations. In another place the writer has made a study of the two treaties, and a summary of the conclusions reached will be given here, for it is important to have a knowledge of the antecedent history to appreciate the full bearings of the present treaty obligations of the United States with respect to the canal.
Long before 1850 the desirability and eventual necessity of a canal joining the Atlantic and the Pacific had been recognized, but no sentiment had developed in the United States for exclusive control by this nation. On the contrary, the utterances of representative men were quite in the opposite sense; i. e., toward a guarantee by all the great commercial nations that the canal should be free and open to all. Shortly before 1850 Great Britain, already having a foothold in Central America at Belize, assumed a protectorate over the Mosquito Indian country, claiming as far south as the San Juan River. This greatly irritated the people of the United States, for, in addition to being an infringement upon the Monroe Doctrine, it would, if allowed, put Great Britain in control of the eastern end of what was then considered to be the most practicable route for a canal. The attitude of the two 'nations was one of mutual jealousy, each fearing that the other would attempt to get for itself some advantage with respect to a canal not possessed by the other, though neither actually sought a monopoly of political control. In other words, it was not a question of what either nation did want to get for itself alone, but of what each suspected that the other nation might be trying to get for itself alone.
The Clayton-Bulwer treaty of 185o settled that point, the first sentence of Article I reading: "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." Other stipulations were that neither would erect or maintain fortifications commanding, or in the vicinity of the canal; nor occupy, fortify, colonize, assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America, nor to that end make use of any intimacy or alliance; the powers jointly engaged to protect the finished canal from interruption, seizure or unjust confiscation, and to guarantee that the canal should be ever open and free; they engaged to invite other powers to join them in similar stipulations; and they established a "general rule" by agreeing to extend their protection, not alone to a canal at Nicaragua (the then favored site), but to any other practicable communication, whether by canal or railway, across the Isthmus.
In a memorandum of the Secretary of State, Mr. Olney, written in 1896, it is pointed out that the United States desired, in negotiating the Clayton-Bulwer treaty, to overcome two difficulties: one, the rights asserted by Great Britain on the Mosquito Coast; the other, the inability to get in this country the capital necessary to prosecute the work of canal construction by the American company, in whose favor the United States had obtained concessions from Nicaragua by treaty in 1849, or to get capital abroad as long as the canal enterprise was conducted under purely American auspices. After stating that the treaty secured the two objects. desired, he goes on to say: "In short, the true operation and effect of the Clayton-Bulwer treaty is that, as respects Central America generally, Great Britain has expressly bound herself to the Monroe Doctrine, while, as respects all water and land interoceanic communications across the Isthmus, the United States has expressly bound itself to so far waive the Monroe Doctrine as to admit Great Britain to a joint protectorate." The waiver of the Monroe Doctrine was even greater than Mr. Olney states, for Article VI opens with the words: "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." If it was a waiver of the Monroe Doctrine in any degree to enter into a joint protectorate of the canal with Great Britain, it was certainly a waiver to a greater degree to engage to invite every other state to do likewise.
For a decade after 1850 there was friction between the United States and Great Britain over the interpretation of some features of the Clayton-Bulwer treaty, which were not directly connected, however, with canal matters. In 186o these sources of friction were satisfactorily adjusted, and then the Civil War engaged this country's attention to the exclusion of everything not of immediate importance. After the Civil War there were signs of a change of sentiment in the United States regarding the control of the canal. It began to be appreciated that our interests demanded our exclusive control of the canal, instead of sharing that control with foreign nations, or with one such nation, as Great Britain. Such a complete reversal of sentiment took time to develop. In 1877, in President Grant's administration, a draft treaty looking to neutralization was prepared "to which it was proposed to obtain the accession of the principal maritime powers."' In his message of March 8, 1880, President Hayes enunciated the new and contrary policy in these plain words: "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"; and further on he used the words so often quoted since: "It (the canal) will be . . . . virtually a part of the coast line of the United States." This policy directly contravened our engagements with Great Britain in the Clayton-Bulwer treaty, and it became our object to get rid of those engagements in order to have the free hand we desired. For twenty years the matter was agitated until, in the Hay-Pauncefote treaty, our wishes were met by Great Britain, and very fully met as will be seen by a perusal of the treaty which is quoted at the end of this paper.
This treaty, as stated at the outset, is the basis of the international status of the canal. With a knowledge of the conditions before the treaty was negotiated it is difficult to see in what manner the United States has been worsted in its provisions, as has recently been claimed. Almost invariably treaties are compromises, and almost invariably for favors granted there is, expressed or implied, a quid pro quo which carries obligations complementary to the favors. In the Hay memorandum 8 sent to the Senate Committee on Foreign Relations while the Hay- Pauncefote treaty was under consideration, it is said: "These rules (those of Article III) are adopted in the treaty with Great Britain as a consideration for getting rid of the Clayton-Bulwer treaty." In the Hay-Pauncefote treaty Great Britain definitely renounced her legal right, existent under the Clayton-Bulwer treaty, of sharing with the United States in the control and protection of the canal. In consenting to the supersession of the Clayton-Bulwer treaty she gave up the only treaty right with the United States known to the writer by which a non-American nation had a voice in, and consequent possibility of interference with, matters in this hemisphere external to those covered by direct treaties between the several non-American and American nations. And more than this,—Great Britain gave up the right, the duty even, of inviting other nations to join with her and the United States in stipulations similar to those of the Clayton-Bulwer treaty. It is plain that the United States not only gained the free hand she wanted in canal matters, when the Hay-Pauncefote treaty was concluded, but also that the Monroe Doctrine was immensely strengthened, not to say rehabilitated. The impairment of the Monroe Doctrine by the Clayton-Bulwer treaty, whether due to force of circumstances at the time or done without a realization of its import, has now been remedied, and the United States can maintain it with no embarrassing exception to explain.
With the obstacle presented by the Clayton-Bulwer treaty cleared away, everything bade fair for the attainment of the wish of this country to build and control the canal. After much discussion the Panama route was decided upon, which was doubtless good engineering, though with that we are not concerned here; it was certainly good statesmanship to dispose of any possible rival, both in a business sense and with a view to obviating any possible future diplomatic disagreements. No great difficulty was anticipated in reaching an agreement with Colombia, which was bound to be greatly benefited by the canal and was too weak financially to dream of undertaking it alone. But negotiations dragged, for Colombia insisted on terms that were considered unreasonable in this country. Then one morning Panama was born, and the United States hastened to make with the infant republic a canal treaty that was concluded November 18, 1903, two years to a day after the Hay-Pauncefote treaty was concluded. This treaty with Panama, quoted at the end of this paper, is the second one upon which the international status of the canal rests. It is the only treaty with an American nation, as the Hay-Pauncefote treaty is the only one with a non-American nation, that directly enters into stipulations concerning the Panama Canal. It is true that the 35th Article of the treaty of 1846 with New Grenada, now Colombia, bore upon the transit across the Isthmus of Panama; but the successful revolution of Panama carried with it the assumption by Panama of all the rights and obligations of that article to the exclusion of Colombia, on the principle that treaties run with the land. The treaty of 1903, moreover, covers these points more fully than did the treaty of 1846.
There is one other treaty and two protocols that are concerned with transit over the Isthmus. The Gadsden treaty of 1853 with Mexico contains in Article VIII stipulations concerning transit over "a plank and rail road across the Isthmus of Tehuantepec." This has no bearing on the Panama Canal. The two protocols were identical, concluded December 1, 1900, with Costa Rica and Nicaragua, and looked to more definite later engagements concerning a canal by the Nicaragua route. They were anticipatory only and have no bearing on the Panama Canal, as the canal to which they referred has not been built.
It thus appears that with two nations only have we direct treaty engagements concerning the Panama Canal—Great Britain and Panama. We are not legally answerable by reason of contractual obligations to any other nation for our control and operation of the canal. The only possible exception to this statement that occurs to the writer is that "most favored nation" treatment might possibly be held to apply to canal matters, though it is difficult to see how. The wording of Article III (I) of the Hay-Pauncefote treaty, confirmed by that of Article XVIII of the treaty with Panama, does, however, undoubtedly place upon us a moral obligation toward all the nations of the earth until those treaties are denounced or superseded. What has been said before has been inspired by no desire to lessen that obligation, but simply to point out its different character, which is moral toward the world at large in so far as matters are concerned about which we have made declarations affecting all nations in our treaties with Great Britain and Panama; legally we are under obligations to those two countries only. Of the two the Hay-Pauncefote treaty-is the one the more likely to give rise to international and diplomatic questions, for the treaty with Panama followed after and was based upon it.
Of the four essential articles of the Hay-Pauncefote treaty, Article I concerns Great Britain and the United States only. Article IV enunciates the mutual agreement providing that no change of sovereignty or of the international relations of the country traversed by the canal shall affect the general principle of neutralization or the obligation of the high contracting parties. It is not inconceivable that this article may at some time give rise to international questions of gravity; but it is so improbable that it needs no further mention than to point out that the opening words of the article, " It is agreed," point to a joint responsibility of the two nations that they shall work to the same end in the settlement of such a question, should it arise. The canal is now building by the United States, "directly at its own cost," pursuant to Article II, which also provides that "subject to the provisions of the present treaty" the United States "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." The vital provisions that limit the powers of the United States are found in Article III, and it is this article that is most apt to give rise to diplomatic questions, as it has already given rise to the question of tolls now pending. With this mere mention of tolls the subject will be dismissed, for it would be manifestly improper for the writer to discuss it at the present time and in this journal.
Article III enunciates certain rules to govern the conduct of the canal, and it is worth while to observe very carefully the reading of the opening sentence preceding the rules themselves. In the first place the rules are adopted "as the basis of the neutralization of such ship canal," and for no other stated purpose whatever; i. e., the rules are in pursuance of the "'general principle' of neutralization" cited in the preamble of the treaty. In the second place the opening words of the article are "The United States adopts," not "the High Contracting Parties adopt," or "it is agreed," or any such words implying dual responsibility. By virtue of this language in the treaty the United States adopts alone, with the assent of Great Britain, the rules governing that status of the canal termed neutralization, and in consequence the United States is alone responsible for maintaining that status itself. In the third place, the wording regarding the rules is "the following Rules, substantially as embodied in the Convention of Constantinople." The rules of the Hay-Pauncefote treaty are not said to be substantially "those" embodied in the Convention of Constantinople, but substantially "as." In other words, the rules of the Constantinople Convention are not all (that might apply) adopted, but those that are adopted are substantially as they appear in that instrument. This is a very real distinction that has not always been kept clearly in mind by writers on canal matters. Thus the right of the United States to fortify the canal has been challenged at home and abroad, though never by any government, and the prohibition of fortifications in the Constantinople Convention has been urged as a reason why fortifications at Panama would violate the spirit of the rules of the Hay-Pauncefote treaty. That question has been settled and the work on the Panama Canal fortifications is now in progress. Again there are those who hold that the United States in war would have to permit the ships of her enemy to pass freely through the canal because of the wording of Rule I of the Hay-Pauncefote treaty, taken in connection with the reference to the rules of the Constantinople Convention in the opening sentence of Article III. In Article IV of the latter occur the words "The Maritime Canal remaining open in time of war as a free passage, even to the ships of war of belligerents . . . . 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 three marine miles from those ports, even though the Ottoman Empire should be one of the belligerent powers."' No such words as those italicized appear in the Hay-Pauncefote treaty rules; and, if the remarks recently made at a public banquet by a gentleman high in the councils of state are any indication of governmental policy, no such suicidal thing is apt to occur as permitting a free passage through the canal of our own enemy's ships of war, on an errand inimical to us.
Considered as a question of language the writer does not believe that the word "neutralization" is applicable to the present status of the Panama Canal. "Neutralized" and "neutralization" imply a status maintained by mutual agreement of so many powerful nations that there can be no hope of a successful violation of that status by any one, or by any combination. At Panama the United States stands alone. But whatever the word used the thing aimed at is perfectly plain, and the word "neutralization" may be accepted for want of a better. The United States is sole sponsor for the neutralization of the canal.
Considering now the rules themselves, it will be noted that all but the first have reference to a state of war. This is to be expected because the idea of neutralization is correlative to that of a state of war; neutralization is imposed to meet the conditions arising in actual war or in anticipation of those that may arise in a future war. A first reading of Rule 1 leads to the impression that it is out of place in rules providing for neutralization; but closer consideration shows that it belongs where it is properly enough. By the very omission of reference to time of war the intention is evident that the rule is intended to cover all times, including time of war. A very important exception to this last statement must be made, however: the rule does apply to times of war in which the United States herself is not a belligerent, but does not apply to her enemy's war vessels when she is a belligerent. This limitation is not expressly stated but it is borne out by the history of the rule, which had its prototype in Article I of the Constantinople Convention." That article reads in part: "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 words "always" and "in time of war as in time of peace" of this article are absent from Rule i of the Hay-Pauncefote treaty. It will be remembered that the original draft of the Hay-Pauncefote treaty was made in 1900 and contained rules for the neutralization of the canal. Rule 1 of the original draft, in general tenor similar to Rule 1 of the accepted treaty, did contain the words "in time of war as in time of peace." That draft was materially amended in the Senate, and, as amended, it was unacceptable to Great Britain. One of the Senate amendments provided "that none of the immediate foregoing conditions and stipulations . . . . shall apply to measures which the United States may find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order." The original draft also provided, in Rule 7, that "no fortifications shall be erected commanding the Canal or the waters adjacent." Great Britain held that the amendment referred to above, called the Davis amendment, and Rule 7 were incompatible. In the Hay memorandum, previously cited, which went to the Senate Committee in explanation of the later and accepted draft of the treaty, Mr. Hay said:
His Majesty's Government . .. thought that . . . it would be impossible to determine what might be the effect if one clause permitting defensive measures and another clause (which has now been omitted) prohibiting fortification of the Canal were allowed to stand side by side in the same convention.
This amendment was strenuously objected to by Great Britain as involving a distinct departure from the principle of neutrality . . .
No longer insisting upon the language of the Davis amendment—which had in terms reserved to the United States express permission to disregard the rules of neutrality prescribed, when necessary to secure its own defense, which the Senate had apparently deemed necessary because of the provision in Rule t, that the canal should be free and open "in time of war as in time of peace" to the vessels of all nations—it was considered that the omission of the words "in time of war as in time of peace" would dispense with the necessity of the amendment referred to, and that war between the contracting parties, or between the United States and any other power, would have the ordinary effect of war upon treaties when not specially otherwise provided, and would remit both parties to their original and natural right of self-defense and give to the United States the clear right to close the canal against the other belligerent, and to protect it Sand defend itself by whatever means might be necessary.
The statement just quoted was made by one negotiator of the treaty and was presented to the Senate Committee having the treaty in charge, and there can be no reasonable doubt that the Senate ratified the treaty with a clear understanding of this matter. It is thus seen that the exception noted above to the general interpretation of Rule i is fully justified. If it be objected that this represents the views of only one party to the treaty, the words of Lord Lansdowne in his memorandum of August 3, 1901, may carry the conviction that this interpretation was understood by Great Britain also. In that memorandum he says:
I understand that by the omission of all reference to the matter of defense the United States Government desires to reserve the power of taking measures to protect the Canal, at any time when the United States may be at war, from destruction or, damage at the hands of an enemy or enemies. On the other hand, I conclude that, with the above exception, there is no intention to derogate from the principles of neutrality laid down by the rules. As to the first of these propositions 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 defense of the Canal at a moment when they were themselves engaged in hostilities.
It may be added that Lord Pauncefote, the British Plenipotentiary in the negotiation of the treaty, was one of the British representatives in the negotiation of the Constantinople Convention, and must be assumed therefore to have been especially qualified to note the effect of the deviation in the Hay-Pauncefote treaty rules from those of the rules governing the Suez Canal.
Taken collectively the Hay-Pauncefote treaty rules define the attitude of the United States in the management of the canal to be built. Rule 1 opens the canal on terms of equality to the vessels of commerce and of war of all nations "observing these rules." If any nation, or its citizens or subjects, declines or fails to observe the rules it may not use the canal. The rule is silent as to specific times when it is applicable, times of war or times of peace; the manifest inference is that free passage in time of war is permissible, to which the exception already noted must be added. The rule may be stated to mean, in effect, that 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, provided the voyage of the vessel be innocent in character as toward the United States, so that, etc.
By inference the interpretation above leaves in the category of vessels entitled to free passage through the canal those private vessels of enemies of the United States in war that are engaged in voyages of an innocent character. For instance, supposing a war between France and the United States, a French vessel loaded with guano, on a voyage from Peru to Canada, would be freely entitled to passage through the canal. The writer believes this interpretation to be correct. In the present development of international law the question is rather academic, for the French master would scarcely run the risk of capture by United States ships outside the three mile limit at the canal ends. But if the principle of the inviolability of private property at sea becomes established in international law the question will at once be a practical one. It is not entirely academic now, as will be seen from a perusal of Article XII of the treaty of 1871 between the United States and Italy which reads:
The High Contracting Parties agree that in the unfortunate event of a war between them the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or by the military forces of either party, it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party. (Treaties in Force, 1904, P. 453).
The remaining five rules are essentially prohibitions of a nature similar to those the United States would enforce in her own territorial waters for the preservation of national neutrality in a war between other nations. The effect of them all is that the United States will not permit the canal to be used as a base by either belligerent in a war between foreign powers.
When the Hay-Pauncefote treaty was negotiated the canal routes lay through foreign territory in which the exercise of sovereignty could only legally appertain to the nation, or nations, through whose territory the canal would pass. This condition was entirely changed by the treaty with Panama, made two years later. The changed condition cannot, in equity, be regarded as making any change in the attitude of the United States toward Great Britain in the interpretation of the Hay-Pauncefote treaty; for the treaty with Panama came after it, was made possible by it, and in Article XVIII expressly states that the canal shall be opened in conformity with all the stipulations of it. But toward every other nation the treaty with Panama very materially changed the rights of the United States in her control and management of the canal, as will be seen by an examination of its provisions.
In Article II, Panama "grants to the United States in perpetuity the use, occupation and control" of certain lands, land under water and waters for canal purposes. In Article IV Panama grants in perpetuity a monopoly for any system of interoceanic communication by canal or railroad across its territory. In Article III
The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said 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.
The title to the lands and waters, the use of which is ceded, still vests in Panama, and the compensation, including an annual rental, is provided for in Article XIV ; but the abstract right of title does not affect the concrete right of the United States to exercise sovereignty in the Canal Zone to the exclusion of Panama. The Canal Zone is thus virtually and legally as much a part of the United States as is the Mississippi Valley, and the United States has the same interest and right, and indeed the same obligation, to take measures against the violation of the neutrality of the Canal Zone, and against hostile acts toward her property there, by belligerents, that she has for ensuring the same objects in the Mississippi Valley or any other part of her territorial possessions. Great Britain can legally hold us to the duty of maintaining neutrality in the Canal Zone by virtue of the terms of the Hay-Pauncefote treaty; on the other hand, as far as the rest of the world is concerned, we have that right and duty naturally in consequence of the treaty with Panama, whether the Hay-Pauncefote treaty be in existence or not.
The cities of Colon and Panama with their adjacent harbors are not included in, but are expressly excluded from, the grant of the Canal Zone. Even in them, however, Panama has yielded some attributes of sovereignty to the United States, as will be seen from a reading of Articles VII and X.
The treaty with Panama is largely occupied with matters that are of interest only to the two countries concerned in making it. There are, however, several things of international interest that have not yet been touched upon. The most important of these is the subject of Article I, which reads: "The United States guarantees and will maintain the independence of the Republic of Panama." This imposes a serious duty upon the United States that was not without some bearing on the question of fortifications and a permanent garrison in the Canal Zone, now happily settled. The guarantee is of great importance to Panama; and it is also of great importance to the United States, for it ensures for the future that no embarrassing questions will arise from the possibility of an attack upon Panama by a more powerful neighbor; the announcement of the guarantee will probably suffice to attain the object, but the means will be at hand to enforce the guarantee if necessary. It would be intolerable to have a war of aggression going on in the vicinity of the canal, and the guarantee is worth the assumption of the responsibility involved.
The language of Article I is unqualified, and the announcement that the United States "will maintain" the independence of Panama, read by itself, is capable of the interpretation that the United States will maintain that independence even against the wishes of Panama to the contrary; and very good reasons are apparent why such an interpretation would be to the interest of the United States. But the language of the second paragraph of Article XXIV shows that the guarantee of independence is not intended to prohibit Panama from merging her independence in another state if she so wishes; for it expressly provides that, in such a contingency, the rights of the United States under this treaty shall remain unimpaired. As the treaty must be interpreted as a whole, the plain meaning of Article I is that the independence of Panama is guaranteed and will be maintained against the assaults of any enemy of that state.
The first paragraph of Article XXIV provides that no change in the treaties of Panama shall, "without the consent of the United States, affect any right of the United States under the present convention, or under any treaty stipulation between the two countries that now exists or may hereafter exist touching the subject matter of this convention." This is an evident matter of international interest, looking to the future. In a similar way, looking to the past, Article XX provides for annulment or modification of any treaty in relation to the territory of the Isthmus of Panama, the obligations of which have descended to or been assumed by the Republic of Panama, whereby any privilege or concession is granted relative to means of interoceanic communication that is incompatible with the terms of the treaty under discussion. The writer does not know of any formal announcement that the provisions of Article XX have been complied with. If they have not there is a possibility of interesting diplomatic questions arising out of that article.
Article IX provides on the part of the United States that the ports at the canal entrances, and on the part of Panama that the towns of Colon and Panama, shall be free ports for vessels using or passing through the canal, with exceptions covering canal tolls, articles destined for other parts of the Republic of Panama, and vessels touching at Colon and Panama without passing through the canal.
Articles XXIII and XXV may be considered together, as both bear upon the protection of the canal. Article XXIII explicitly permits the United States to use her police and her land and naval forces, and to establish fortifications to ensure the safety and protection of the canal and its auxiliaries. This bears upon the right of the United States to fortify the canal, if that right needs further argument; for it is plain that the negotiators of this treaty with Panama would never have put in the authorization to establish fortifications if they had believed fortifications were forbidden, by implication or otherwise, by the Hay-Pauncefote treaty. In Article XXV Panama agrees to sell or lease lands for naval and coaling stations "to the end of the efficient protection of the Canal and the preservation of its neutrality." The use of the word "sell" in this article is noteworthy it carries with it the possibility of the actual transfer of title, and with the title sovereignty. The title to the Canal Zone did not pass under the provisions of Article III. Both Article XXIII and Article XXV point to a belief of the two governments that something more than a mere dictum of the United States is necessary to enable her to ensure the safety and protection of the canal, and to maintain its neutrality.
Summing up, the international status of the canal appears to the writer to be as follows:
(a) The canal is free (for passage but not in respect of tolls) and open to all private vessels of nations observing the rules of the Hay-Pauncefote treaty.
(b) The canal is similarly free and open to men-of-war, even to those of belligerents when the Unired States is not a party to the war.
(c) To these permissive conditions the exception may be anticipated that the United States, when herself engaged in war, will not allow the war vessels of her enemies to use the canal, nor her enemies' private vessels, unless the character of the voyage be innocent as regards the United States.
(d) The other conditions are prohibitive, and of the nature that the United States would enforce in her own ports for the preservation of neutrality and the protection of her own property. They are so explicitly stated that nothing more than a reference to them, Rules 2 to 6 inclusive, Article III, is necessary here.
(e) The United States stands alone as the guarantor that the canal shall be kept free and open in accordance with the Hay- Pauncefote rules.
(f) The canal will be protected by permanent fortifications and a military garrison.
The Suez Canal afforded the only precedent for establishing the status of the Panama Canal. The two are alike in the fact that each is an artificial waterway connecting two great oceans, whereby trade routes may be shortened thousands of miles. The two are very unlike in several other particulars. The Panama Canal is being constructed by the United States as a government enterprise; the Suez Canal was built and is now owned by a private company of which the British Government later became a large stockholder, but is not now sole proprietor. The Suez Canal is comparatively near to several strong European States having diverse interests, while the Panama Canal is separated by the width of a great ocean from any first-class power. The Suez Canal is on the common shortest route of several European powers to their important colonies; this is not the case with the Panama Canal as regards European countries, but the United States has a vital interest in it because it makes a short route between the Atlantic and Pacific coasts. The Suez Canal is in Egypt, which is a suzerainty of Turkey, whose territorial rights are expressly reserved in Article XXII of the Constantinople Convention; the Panama Canal passes through territory in which the United States exercises sovereignty to the exclusion of such exercise by Panama. Enough has been said to show the wide differences in important particulars of the two great artificial waterways. Such differences in physical status are quite sufficient to account for differences in international status.
The text of the Constantinople Convention governing "the free navigation of the Suez Maritime Canal" is printed at the end of this paper, and the reader can compare for himself its provisions with those of the Hay-Pauncefote treaty. A few of the more noticeable divergencies may be pointed out, however. In the first place the Suez Canal is really neutralized by a concert of nine European powers, although the words "neutralization" and "neutrality" are carefully omitted, and the language is "free and open," "open . . . as a free passage," or "free use"; Turkey, the sovereign power, is one of the nine signatories. On the other hand the Panama Canal is not neutralized by a concert of powers, though the word "neutralization" is used in the Hay-Pauncefote treaty; the United States is the sole guarantor of the condition so characterized. Again, Turkey expressly gives up, in Article IV, the right to exercise any war right or commit any act of hostility in the canal situated in her own sovereign territory; the United States is not so restricted by the Hay-Pauncefote treaty. Permanent fortifications are forbidden by the Constantinople Convention, Article VIII and Article XI; they are not forbidden by the Hay-Pauncefote treaty. Comment has already been made upon the omission in the Hay-Pauncefote treaty of the words "in time of war as in time of peace" found in Article I of the Constantinople Convention.
The natural cause of these divergencies may be found in the entirely different relation borne to the Panama Canal by the United States from that borne to the Suez Canal by any one European State. The Panama Canal is of paramount importance to us for commercial and military reasons, and the latter were very freely advanced before construction began, though they are now somewhat forgotten in the discussion of commercial matters. The Suez Canal was begun purely as a commercial enterprise in which the interests of many nations ran parallel, and military advantage was incidental. Put in another way, the Panama Canal was a necessity for us; the Suez Canal was a great convenience to Europe. For these reasons, and also because of the Monroe Doctrine, it was worth while to undertake single-handed the guarantee at Panama that the European nations collectively undertook at Suez. It very naturally follows that guns and soldiers are necessary to enable a single nation to maintain what the pronouncement of a concert of nations will effect by moral suasion. And it equally follows by every rule of common sense and self-preservation that the United States in undertaking such a responsibility will not be Quixotic enough to maintain a canal for the use of her own enemies in war.
Notwithstanding the divergencies the great fact stands out that the management of both canals is on a general basis of equal treatment , to all with special advantage to none. Unless the United States be herself at war the international status of the two canals is practically the same.
CONVENTION BETWEEN GREAT BRITAIN, GERMANY, AUSTRIA-HUNGARY, SPAIN, FRANCE, ITALY, THE NETHERLANDS, RUSSIA, AND TURKEY, RESPECTING THE FREE NAVIGATION OF THE SUEZ MARITIME CANAL."
Signed at Constantinople, October 29, 1888.
(Ratifications deposited at Constantinople, December 22, 1888.)
HER Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India; His Majesty the Emperor of Germany, King of Prussia; His Majesty the Emperor of Austria, King of Bohemia, &c., and Apostolic King of Hungary; His Majesty the King of Spain, .and in his ttine the Queen Regent of the Kingdom; the President of the French Republic; His Majesty the King of Italy; His Majesty the King of the Netherlands, Grand Duke of Luxembourg, &c.; His Majesty the Emperor of All the Russias; and His Majesty the Emperor of the Ottomans; 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, that is to say:
(Here follow the names of the several Plenipotentiaries.)
Who, having communicated to each other their respective full powers, found in good and due form, 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 18th 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 hours, 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 TX 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 endeavor 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.
ARTICLE XVII.
The present Treaty shall be ratified, and the ratifications shall be exchanged at Constantinople within the space of one month, or sooner if possible.
In faith of which the respective Plenipotentiaries have signed the present Treaty, and have affixed to it the seal of their arms.
Done at Constantinople, the 29th day of the month of October, in the year 1888.
[L. S.] W. A. WHITE.
[L. S.] RADOWITZ.
[L. S.] CALICE.
[L. S.] MIGUEL FLOREZ Y GARCIA.
[L. S.] G. DE MONTEBELLO.
[L. S.] A. BLANC.
[L. S1 Gus. KEUN.
[L. S.] NELIDOW.
[L. S.] M. SAID.
TREATY TO FACILITATE THE CONSTRUCTION OF A SHIP CANAL.
Concluded November 18, Nor; ratification advised by Senate December 16, 1901; ratified by President December 26, Nor; ratifications exchanged February at, 1902; proclaimed February 22, 1902. (U. S. Stat., vol. 32, p. 1903.)
ARTICLES.
I. Convention of April 19, 5850. IV. Change of sovereignty.
II. Construction of canal. V. Ratification.
III. Rules of neutralization.
The United States of America and His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, and Emperor of India, 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:
The President of the United States, John Hay, Secretary of State of the United States of America;
And His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, and Emperor of India, the Right Honourable Lord Pauncefote, G. C. B., G. C. M. G., His Majesty's Ambassador Extraordinary and Plenipotentiary to the United States;
Who, having communicated to each other their full powers, which were found to be in due and proper form, have agreed upon the following Articles:
ARTICLE I.
The High Contracting Parties agree that the present Treaty shall supersede the afore-mentioned Convention of the 19th April, 1850.
ARTICLE II.
It is agreed that the canal may he 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.
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:
1. 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.
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.
The present Treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by His Brittanic Majesty; and the ratifications shall be exchanged at Washington or at London at the earliest possible time within six months from the date hereof.
In faith whereof the respective Plenipotentiaries have signed this Treaty and thereunto affixed their seals.
Done in duplicate at Washington, the t8th day of November, in the year of Our Lord one thousand nine hundred and one.
JOHN HAY. [SEAL]
PAUNCEFOTE. [SEAL]
CONVENTION FOR THE CONSTRUCTION OF A SHIP CANAL.
Concluded November 18, 1903; ratification advised by the Senate February 23, 1904; ratified by President February 25, 1904; ratifications exchanged February 26, 1904; proclaimed February 26, 1904. (U. S. Stats., vol. 33.)
The United States of America and the Republic of Panama being desirous to insure the construction of a ship canal across the Isthmus of Panama to connect the Atlantic and Pacific oceans, and the Congress of the United States of America having passed an act approved June 28, 1902, in furtherance Of that object, by which the President of the United States is authorized to acquire within a reasonable time the control of the necessary territory of the Republic of Colombia, and the sovereignty of such territory being actually vested in the Republic of Panama, the high contracting parties have resolved for that purpose to conclude a convention and have accordingly appointed as their plenipotentiaries,—
The President of the United States of America, John Hay, Secretary of State, and
The Government of the Republic of Panama, Philippe Bunau-Varilla, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Panama, thereunto specially empowered by said government, who after communicating with each other their respective full powers, found to be in good and due form, have agreed upon and concluded the following articles:
ARTICLE I.
The United States guarantees and will maintain the independence of the Republic of Panama.
ARTICLE II.
The Republic of 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 of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the said zone beginning in the Caribbean Sea three marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific ocean to a distance of three marine miles from mean low water mark with the proviso that the cities of Panama and .Colon and the harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant. The Republic of Panama further grants to the United States 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.
The Republic of Panama further grants in like manner to the United States in perpetuity all islands within the limits of the zone above described and in addition thereto the group of small islands in the Bay of Panama, named Perico, Naos, Culebra and Flamenco.
ARTICLE III.
The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said 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.
ARTICLE IV.
As rights subsidiary to the above grants the Republic of 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, so far as the use of said rivers, streams, lakes and bodies of water and the waters thereof may be necessary and convenient for the construction, maintenance, operation, sanitation and protection of the said Canal.
ARTICLE V.
The Republic of 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 VI.
The grants herein contained shall in no manner invalidate the titles or rights of private land holders or owners of private property in the said zone or in or to any of the lands or waters granted to the United States by the provisions of any Article of this treaty, nor shall they interfere with the rights of way over the public roads passing through the said zone or over any of the said lands or waters unless said rights of way or private rights shall conflict with rights herein granted to the United States in which case the rights of the United States shall be superior. All damages caused to the owners of private lands or private p.roperty of any kind by reason of the grants contained in this treaty or by reason of the operations of the United States, its agents or employees, or by reason of the construction, maintenance, operation, sanitation and protection of the said Canal or of the works of sanitation and protection herein provided for, shall be appraised and settled by a joint Commission appointed by the Governments of the United States and the Republic of Panama, whose decisions as to such damages shall be final and whose awards as to such damages shall be paid solely by the United States. No part of the work on said Canal or the Panama railroad or on any auxiliary works relating thereto and authorized by the terms of this treaty shall be prevented, delayed or impeded by or pending such proceedings to ascertain such damages. The appraisal of said private lands and private property and the assessment of damages to them shall be based upon their value before the date of this convention.
ARTICLE VII.
The Republic of Panama grants to the United States within the limits of the cities of Panama and Colon and their adjacent harbors and within the territory adjacent thereto the right to acquire by purchase or by the exercise of the right of eminent domain, any lands, buildings, water rights or other properties necessary and convenient for the construction, maintenance, operation and protection of the Canal and of any works of sanitation, such as the collection and disposition of sewage and the distribution of water in the said cities of Panama and Colon, which, in the discretion of the United States may be necessary and convenient for the construction, maintenance, operation, sanitation and protection of the said Canal and railroad. All such works of sanitation, collection and disposition of sewage and distribution of water in the cities of Panama and Colon shall be made at the expense of the United States, and the government of the United States, its agents or nominees shall be authorized to impose and collect water rates and sewerage rates which shall be sufficient to provide for the payment of interest and the amortization of the principal of the cost of said works within a period of fifty years and upon the expiration of said term of fifty years the system of sewers and water works shall revert to and become the properties of the cities of Panama and Colon respectively, and the use of the water shall be free to the inhabitants of Panama and Colon, except to the extent that water rates may be necessary for the operation and maintenance of said system of sewers and water.
The Republic of Panama agrees that the cities of Panama and Colon shall comply in perpetuity with the sanitary ordinances whether of a preventive or curative character prescribed by the United States and in case the Government of Panama is unable or fails in its duty to enforce this compliance by the cities of Panama and Colon with the sanitary ordinances of the United States the Republic of Panama grants to the United States the right and authority to enforce the same.
The same right and authority are granted to the United States for the maintenance of public order in the cities of Panama and Colon and the territories and harbors adjacent thereto in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order.
ARTICLE VIII.
The Republic of Panama grants to the United States all rights which it now has or hereafter may acquire to the property of the New Panama Canal Company and the Panama Railroad Company as a result of the transfer of sovereignty from the Republic of Colombia to the Republic of Panama over the Isthmus of Panama and authorizes the New Panama Canal Company to sell and transfer to the United States its rights, privileges, properties and concessions as well as the Panama Railroad and all the shares or part of the shares of that company; but the public lands situated outside of the zone described in Article II of this treaty now included in the concessions to both said enterprises and not required in the construction or operation of the Canal shall revert to the Republic of Panama except any property now owned by or in the possession of said companies within Panama or Colon or the ports or terminals thereof.
ARTICLE IX.
The United States agrees that the ports at either entrance of the Canal and the waters thereof, and the Republic of Panama agrees that the towns of Panama and Colon shall be free for all time so that there shall not be imposed or collected custom house tolls, tonnage, anchorage, lighthouse, wharf, pilot, or quarantine dues or any other charges or taxes of any kind upon any vessel using or passing through the Canal or belonging, to or employed by the United States, directly or indirectly, in connection with the construction, maintenance, operation, sanitation and protection of the main Canal, or auxiliary works, or upon the cargo, officers, crew, or passengers of any such vessels, except such tolls and charges as may be imposed by the United States for the use of the Canal and other works, and except tolls and charges imposed by the Republic of Panama upon merchandise destined to be introduced for the consumption of the rest of the Republic of Panama, and upon vessels touching at the ports of Colon and Panama and which do not cross the Canal.
The Government of the Republic of Panama shall have the right to establish in such ports and in the towns of Panama and Colon such houses and guards as it may deem necessary to collect duties on importations destined to other portions of Panama and to prevent contraband trade. The United States shall have the right to make use of the towns and harbors of Panama and Colon as places of anchorage, and for making repairs, for loading, unloading, depositing, or transshipping cargoes either in transit or destined for the service of the Canal and for other works pertaining to the Canal.
ARTICLE X.
The Republic of Panama agrees that there shall not be imposed any taxes, national, municipal, departmental, or of any other class, upon the Canal, the railways and auxiliary works, tugs and other vessels employed in the service of the Canal, store houses, work shops, offices, quarters for laborers, factories of all kinds, warehouses, wharves, machinery and other works, property, and effects appertaining to the Canal or railroad and auxiliary works, or their officers or employees, situated within the cities of Panama and Colon, and that there shall not be imposed contributions or charges of a personal character of any kind upon officers, employees, laborers, and other individuals in the service of the Canal and railroad and auxiliary works.
ARTICLE XI.
The United States agrees that the official dispatches of the Government of the Republic of Panama shall be transmitted over any telegraph and telephone lines established for canal purposes and used for public and private business at rates not higher than those required from officials in the service of the United States.
ARTICLE XII.
The Government of the Republic of Panama shall permit the immigration and free access to the lands and workshops of the Canal and its auxiliary works of all employees and workmen of whatever nationality under contract to work upon or seeking employment upon or in any wise connected with the said Canal and its auxiliary works, with their respective families, and all such persons shall be free and exempt from the military service of the Republic of Panama.
ARTICLE XIII.
The United States may import at any time into the said zone and auxiliary lands, free of custom duties, imposts, taxes, or other charges, and without any restrictions, any and all vessels, dredges, engines, cars, machinery, tools, explosives, materials, supplies, and other articles necessary and convenient in the construction, maintenance, operation, sanitation and protection of the Canal and auxiliary works, and all provisions, medicines, clothing, supplies and other things necessary and convenient for the officers, employees, workmen and laborers in the service and employ of the United States and for their families. If any such articles are disposed of for use outside of the zone and auxiliary lands granted to the United States and within the territory of the Republic, they shall be subject to the same import or other duties as like articles imported under the laws of the Republic of Panama.
ARTICLE XIV.
As the price or compensation for the rights, powers and privileges granted in this convention by the Republic of Panama to the United States, the Government of the United States agrees to pay to the Republic of Panama the sum of ten million dollars ($10,000,000) in gold coin of the United States on the exchange of the ratification of this convention and also an annual payment during the life of this convention of two hundred and fifty thousand dollars ($250,000) in like gold coin, beginning nine years after the date aforesaid.
The provisions of this Article shall be in addition to all other benefits assured to the Republic of Panama under this convention.
But no delay or difference of opinion under this Article or any other provisions of this treaty shall affect or interrupt the full operation and effect of this convention in all other respects.
ARTICLE XV.
The joint commission referred to in Article VI shall be established as follows:
The President of the United States shall nominate two persons and the President of the Republic of Panama shall nominate two persons and they shall proceed to a decision; but in case of disagreement of the Commission (by reason of their being equally divided in conclusion) an umpire shall be appointed by the two Governments who shall render the decision. In the event of the death, absence, or incapacity of a Commissioner or Umpire, or of his omitting, declining or ceasing to act, his place shall be filled by the appointment of another person in the manner above indicated. All decisions by a majority of the Commission or by the umpire shall be final.
ARTICLE XVI.
The two Governments shall make adequate provision by future agreement for the, pursuit, capture, imprisonment, detention and delivery within said zone and auxiliary lands to the authorities of the Republic of Panama of persons charged with the commitment of crimes, felonies or misdemeanors without said zone and for the pursuit, capture, imprisonment, detention and delivery without said zone to the authorities of the United States of persons charged with the commitment of crimes, felonies and misdemeanors within said zone and auxiliary lands.
ARTICLE XVII.
The Republic of Panama grants to the United States the use of all the ports of the Republic open to commerce as places of refuge for any vessels employed in the Canal enterprise, and for all vessels passing or bound to pass through the Canal which may be in distress and be driven to seek refuge in said ports. Such vessels shall be exempt from anchorage and tonnage dues on the part of the Republic of Panama.
ARTICLE XVIII.
The Canal, when constructed, and the entrances thereto shall be neutral in perpetuity, and shall be opened upon the terms provided for by Section 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 XIX.
The Government of the Republic of Panama shall have the right to transport over the Canal its vessels and its troops and munitions of war in such vessels at all times without paying charges of any kind. The exemption is to be extended to the auxiliary railway for the transportation of persons in the service of the Republic of Panama, or of the police force charged with the preservation of public order outside of said zone, as well as to their baggage, munitions of war and supplies.
ARTICLE XX.
If by virtue of any existing treaty in relation to the territory of the Isthmus of Panama, whereof the obligations shall descend or be assumed by the Republic of Panama, there may be any privilege or concession in favor of the Government or the citizens and subjects of a third power relative to an interoceanic means of communication which in any of its terms may be incompatible with the terms of the present convention, the Republic of Panama agrees to cancel or modify such treaty in due form, for which purpose it shall give to the said third power the requisite notification within the term of four months from the date of the present convention, and in case the existing treaty contains no clause permitting its modifications or annulment, the Republic of Panama agrees to procure its modification or annulment in such form that there shall not exist any conflict with the stipulations of the present convention.
ARTICLE XXI.
The rights and privileges granted by the Republic of Panama to the United States in the preceding Articles are understood to be free of all anterior debts, liens, trusts, or liabilities, or concessions or privileges to other Governments, corporations, syndicates or individuals, and consequently, if there should arise any claims on account of the present concessions and privileges or otherwise, the claimants shall resort to the Government of the Republic of Panama and not to the United States for any indemnity or compromise which may be required.
ARTICLE XXII.
The Republic of Panama renounces and grants to the United States the participation to which it might be entitled in the future earnings of the Canal under Article XV of the concessionary contract with Lucien N. B. Wyse now owned by the New Panama Canal Company and any and all other rights or claims of a pecuniary nature arising under or relating to said concession, or arising under or relating to the concessions to the Panama Railroad Company or any extension or modification thereof; and it likewise renounces, confirms and grants to the United States, now and hereafter, all the rights and property reserved in the said concessions which otherwise would belong to Panama at or before the expiration of the terms of ninety-nine years of the concessions granted to or held by the above mentioned party and companies, and all right, title and interest which it now has or may hereafter have, in and to the lands, canal, works, property and rights held by the said companies under said concessions or otherwise, and acquired or to be acquired by the United States from or through the New Panama Canal Company, including any property and rights which might or may in the future either by lapse of time, forfeiture or otherwise, revert to the Republic of Panama under any contracts or concessions, with said Wyse, the Universal Panama Canal Company, the Panama Railroad Company and the New Panama Canal Company.
The aforesaid rights and property shall be and are free and released from any present or reversionary interest in .or claims of Panama and the title of the United States thereto upon consummation of the contemplated purchase by the United States from the New Panama Canal Company, shall be absolute, so far as concerns the Republic of Panama, excepting always the rights of the Republic specifically secured under this treaty.
ARTICLE XXIII.
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 XXIV.
No change either in the Government or in the laws and treaties of the Republic of Panama shall, .without the consent of the United States, affect any right of the United States under the present convention, or under any treaty stipulation between the two countries that now exists or may hereafter exist touching the subject matter of this convention.
If the Republic of Panama shall hereafter enter as a constituent into any other Government or into any union or confederation of states, so as to merge her sovereignty or independence in such Government, union or confederation, the rights of the United States under this convention shall not be in any respect lessened or impaired.
ARTICLE XXV.
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.
ARTICLE XXVI.
This convention when signed by the Plenipotentiaries of the Contracting Parties shall be ratified by the respective Governments and the ratifications shall be exchanged at Washington at the earliest date possible.
In faith whereof the respective Plenipotentiaries have signed the present convention in duplicate and have hereunto affixed their respective seals.
Done at the City of Washington the 18th day of November in the year of our Lord nineteen hundred and three.
JOHN HAY [SEAL]
P. BUNAU VARILLA. [ SEAL]