2. The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it.

3. Vessels of war of a belligernt 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 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.

It is agreed, however, that none of the immediately foregoing conditions and stipulations in sections numbered one, two, three, four, and five of this article 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.*

6. The plant, establishments, buildings, and all works necessary to the construction, maintenance and operation of the canal shall be deemed to be part thereof, for the purpose of this Convention, 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.

7. No fortifications shall be erected commanding the canal or the waters adjacent. 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.

Article III.5

The High Contracting Parties will, immediately upon the exchange of the ratifications of this Convention, bring it to the notice of the other Powers and invite them to adhere to it.

The amendments made by the Senate were not satisfactory to Great Britain and she rejected it. The treaty thus failed. It

4 Inserted by Senate.

5 Stricken out by the Senate.

was claimed by Great Britain that one clause in Article II prohibiting fortifications, and another authorizing the United States to take such measures as it might "find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order" were not in harmony and might give rise to grave misunderstanding. It was, moreover, claimed that the amendment striking out the clause inviting other powers to become parties to the contract, would place Great Britain at great disadvan tage with respect to other powers, inasmuch as she would be bound to respect the neutrality of the canal, whereas they could disregard it.

It became necessary to try again and see if the differences could be reconciled. A new treaty was accordingly negotiated by the same plenipotentiaries. This new treaty was submitted to the Senate and after some discussion was ratified without amendment and promulgated by President Roosevelt, February 22, 1902.6

Subsequent to the ratification of the Hay-Pauncefote Treaty, another was made between the United States and Panama, which state had seceded from the United States of Colombia. This is known as the Hay-Bunau-Varilla Treaty. By means of these two treaties the United States came into possession of all the rights necessary to enable it to construct, own, manage and protect a canal connecting the two oceans, and since then its construction has been undertaken and is in progress.

The Treaty as at first approved by the Senate of the United States but rejected by Great Britain, as well as the subsequent one, which was ratified by both governments, contain some prominent features of similarity, which are of interest in the following discussion. Both treaties provided for the construction of the canal as a national enterprise, should the United States decide to construct it that way Both provided for neutralization. In the first, the two nations jointly guarantee the neutrality of the canal, and in the second, that burden is assumed by the United States alone. It is to be noted however, that while the Senate did not object to the dual guarantee of neutrality, it did object to inviting other nations to join in it.

See Supplement, p. 127.

See Supplement, p. 130.

Both treaties provided that the principle of neutralization established by Article VIII of the Clayton-Bulwer Treaty was not to be impaired. The first provided that no fortifications should be constructed commanding the canal, but the second omits this prohibitive clause. In the ratified treaty an entirely new article was added, providing that any change in territorial sovereign over the region traversed by the canal, was not to affect the general principle of neutralization nor the obligations of the High Contracting Parties. The great principle of neutralization stands out prominently in both treaties and is provided for in almost identical language, except that in the first draft, both contracting parties adopt it, and in the second, the United States adopts it.

tion.

The word "neutralization" occurs in the treaty three times, showing that the negotiators did not use it without due consideraIt seems clear that whatever may have been the meaning of the word in the minds of the plenipotentiaries and of the two governments, there can be no doubt but that it was intended that "neutralization" whatever it meant was to be established so far as it could be done by treaty between the two nations concerned. Whether or not it would have been better to have done it by a convention of the maritime nations of the world is not material. The question is, does the treaty as ratified, establish neutralization, and if so, do our obligations under it permit us to construct fortifications to command it?

The word "neutralization" is of modern origin. In ancient times he who was not a friend was an enemy. In later days, nations declined to take part in a war between others and these were called neutral nations. They were foes to neither side and sometimes friends to both. This is the oldest form of neutrality, and the status of the neutral nation was proclaimed generally by the sovereign and became binding on the inhabitants thereof.

Still later a new practice grew up. Territory was neutralized by agreement or convention, the parties interested agreeing that certain territory should be exempt from war. This had its origin in Europe, the nations taking part in such agreements being generally those whose location gave them an immediate interest. Distant na

tions seldom took part in these conventions. The nation whose territory was neutralized was a party to the agreement, and received in consideration of the relinquishment of its rights of war some other privileges or advantages. The neutralization of Switzerland, Belgium and Luxenburg in the early part of the last century are examples of this kind of neutralization. The parties to these agreements covenant to refrain from sending armed forces into the region neutralized.

Still later another kind of neutralization came into use, namely, that of nurses and doctors in attendance on the sick and wounded in war, even when in the service of belligerents. The hospitals and ambulances of combatants were neutralized in a similar way. This was done by the Geneva Convention, which was signed by representatives of nearly every civilized nation on the globe. Still more recently the Hague Convention neutralized hospital ships in certain cases, giving them a status of exemption from capture which they did not before possess.

8

Another kind of neutralization is that of waterways, either natural or artificial. There are several cases of the neutralization of the former, but up to the time of the Hay-Pauncefote Treaty, only one of the latter, namely, that of the Suez Canal. The peculiar interests of all maritime nations in these waterways have given rise to special rights of navigation which can not be ignored, even by the sovereign power in which the waterway may be located. In the neutralization of territory, belligerents are especially excluded from trespass; in the neutralization of waterways, freedom of passage is the essential characteristic.

John Bassett Moore, Professor of International Law and Diplomacy, Columbia University, says:

The term neutrality in its ordinary sense, refers to a state of hostilities, and denotes the attitude and the duty of a noncombatant or neutral power toward the parties to the conflict. It signifies not only impartiality, so far at least as conduct is concerned, but also abstention from acts which may aid either belligerent in its conflict with the other. Such is the subjective use of the word. When used objectively with reference to an interoceanic canal, it embraces belligerent as well as neutral powers,

8 See Supplement, p. 123.

and while positively referring to the former, defines the attitude and duty of both. It signifies that the thing is "neutralized," that is, it is to be treated as neutral, and, therefore, it is not to be made the subject of attack, nor distinctively employed as a means of hostilities.

Latané says:

Neutralization implies: (1) A formal act or agreement. It is a matter of convention constituting an obligation, not a mere declaration revokable at will. (2) It implies a sufficiently large number of parties to the act to make the guarantee effective. (3) It implies the absence of fortifications. The mere existence of fortifications would impeach the good faith of the parties of the agreement. (4) It implies certain limitations of sovereignty over the territory or thing neutralized. (5) It implies a more or less permanent condition. It differs from ordinary treaty stipulations terminated by war between the contracting parties. A treaty establishing neutralization is brought into full operation by war.

When we come to extend the same principle to waterways, however, we find the conditions to be altogether different. The first and most fundamental difference is that states have acquired by international usage and prescription rights and interests in the territorial waters of other states, which they have no claim to exercise in respect to land. Secondly, armies and implements of war are absolutely excluded from the territory of neutralized states, while neutralized waterways are by design open to the innocent passage of warships, not only in time of peace but also in time of war.

Wheaton says:

Neutralization is the assignment to a particular territory or territorial water of such a quality of permanent neutrality in respect to all future wars, as will protect it from belligerent disturbance. This quality could only be impressed by the action of the great powers by whom civilized wars are waged and by whose joint action such wars may be averted.

Henderson, in American Diplomacy, says, in reference to an Isthmian Canal, that

Neutralization means an exemption from all warlike operations, and this condition can only be effected by an agreement of all parties to abstain from such warlike operations.

It will be noticed that one central idea pervades all, viz: that neutralization means immunity from war and warlike operations. In the case of neutralized territory it is immunity from war and exclusion of combatants, in the case of neutralized waterways, it is immunity from war and freedom of passage.