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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
* See text following this chapter.
The Panama Canal
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 HayPauncefote 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