Volume I Part 30 (1/2)
The United States adopts, as the basis of the neutralisation of such s.h.i.+p ca.n.a.l, the following Rules, substantially as embodied in the Convention of Constantinople, signed October 29, 1888, for the free navigation of the Suez Ca.n.a.l, that is to say:--
1. The ca.n.a.l 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 ca.n.a.l shall never be blockaded, nor shall any right of war be exercised or any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the ca.n.a.l as may be necessary to protect[325] it against lawlessness and disorder.
[Footnote 325: This does not mean that the United States have a right permanently to fortify the ca.n.a.l. Such a right has likewise been deduced from article 23 of the Hay-Varilla Treaty of November 18, 1903, which runs:--”If it should become necessary at any time to employ armed forces for the safety or protection of the ca.n.a.l, or of the s.h.i.+ps that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes.”
However, it would seem that by this article 23 only temporary fortifications are contemplated. On the other hand, if read by itself, article 3 of the Hay-Varilla Treaty, according to which the Republic of Panama grants to the United States all the rights, power, and authority which the United States would possess and exercise if she were the sovereign of the territory concerned, could be quoted as indirectly empowering the United States to fortify the Panama Ca.n.a.l permanently. But the question is whether article 3 must not be interpreted in connection with article 23.
The fact that article 23 stipulates expressly the power of the United States temporarily to establish fortifications would seem to indicate that it was intended to exclude permanent fortifications. The question of the fortification of the Panama Ca.n.a.l is discussed by Hains (_contra_) and Davis (_pro_) in A.J.
III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough, and Kennedy in A.J. V. (1911), pp. 298, 615, 620.]
3. Vessels of war of a belligerent shall not revictual nor take any stores in the ca.n.a.l except so far as may be strictly necessary; and the transit of such vessels through the ca.n.a.l 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 belligerents.
4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the ca.n.a.l, except in case of accidental hindrance of the transit, and in such case the transit shall be resumed with all possible despatch.
5. The provisions of this article shall apply to waters adjacent to the ca.n.a.l, within three 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 works necessary to the construction, maintenance, and operation of the ca.n.a.l 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 ca.n.a.l.
Article 4
It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned ca.n.a.l shall affect the general principle of neutralisation or the obligation of the high contracting parties under the present Treaty.
Article 5
The present Treaty shall be ratified by his Britannic Majesty and by the President of the United States, by and with the advice and consent of the Senate thereof; and the ratifications shall be exchanged at Was.h.i.+ngton 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 Was.h.i.+ngton, the 18th day of November, in the year of Our Lord 1901.
(Seal) PAUNCEFOTE.
(Seal) JOHN HAY.
On November 18, 1903, the so-called Hay-Varilla Treaty[326] was concluded between the United States and the new Republic of Panama, according to which, on the one hand, the United States guarantees and will maintain the independence of the Republic of Panama, and, on the other hand, the Republic of Panama grants[327] to the United States in perpetuity for the construction, administration, and protection of a ca.n.a.l between Colon and Panama the use, occupation, and control of a strip of land required for the construction of the ca.n.a.l, and, further, of land on both sides of the ca.n.a.l to the extent of five miles on either side, with the exclusion, however, of the cities of Panama and Colon and the harbours adjacent to these cities. According to article 18 of this treaty the ca.n.a.l and the entrance thereto shall be neutral in perpetuity, and shall be open to vessels of all nations as stipulated by article 3 of the Hay-Pauncefote Treaty.
[Footnote 326: See Martens, N.R.G. 2nd Ser. x.x.xI. p. 599.]
[Footnote 327: That this grant is really cession all but in name, was pointed out above, -- 171 (4); see also below -- 216.]
VI
MARITIME BELT
Grotius, II. c. 3, -- 13--Vattel, I. ---- 287-290--Hall, ---- 41-42--Westlake, I. pp. 183-192--Lawrence, -- 187--Phillimore, I.
---- 197-201--Twiss, I. ---- 144, 190-192--Halleck, I. pp.
157-167--Taylor, ---- 247-250--Walker, -- 17--Wharton, -- 32--Moore, I. ---- 144-152--Wheaton, ---- 177-180--Bluntschli, ---- 302, 309-310--Hartmann, -- 58--Heffter, -- 75--Stoerk in Holtzendorff, II. pp. 409-449--Gareis, -- 21--Liszt, -- 9--Ullmann, -- 87--Bonfils, Nos. 491-494--Despagnet, Nos. 403-414--Merignhac, II. pp.
370-392--Pradier-Fodere, II. Nos. 617-639--Nys, I. pp.
496-520--Rivier, I. pp. 145-153--Calvo, I. ---- 353-362--Fiore, II.