THE INTEROCEANIC CANAL

AND THE

HAY-PAUNCEFOTE TREATY

BY

JOHN BASSETT MOORE

Professor of International Law and Diplomacy, Columbia University, formerly Assistant Secretary of State of the United States and Secretary and Counsel to the United States Peace Commission at Paris

REPRINTED FROM THE NEW YORK TIMES

March 4, 1900

WASHINGTON

1900

The Interoceanic Canal and the Hay-Pauncefote Treaty.

That the treaty signed at Washington February 5, 1900, by Mr. Hay and Lord Pauncefote, with a view "to facilitate the construction of a ship canal to connect the Atlantic and Pacific oceans," has attracted general attention not only in the United States and Great Britain, but in other countries as well, is a circumstance neither singular nor hard to explain. The treaty, in the first place, relates to a subject of world-wide interest, in which all nations may be said to have some concern, while that of maritime powers generally is direct and immediate. In the second place, it seems to mark a distinct advance toward the accomplishment of a work which, though long postponed, has been so persistently cherished that it has been called "the dream of the ages." Thirdly, it represents a notable achievement of American diplomacy, in that, while it removes all obstacles to the construction, ownership, and operation of the canal by the United States, it secures for the contemplated water way itself, by a comprehensive neutralization, and for "the plant, establishments, and buildings," and "all works" necessary to its "construction, maintenance, and operation,” a "complete immunity" from injury or attack either in war or in peace.

It is not my purpose nor my desire to discuss the pending treaty in a spirit of partisanship. It has been severely criticised, and it has been ably defended, and in some instances the discussions have developed errors which it is proper to ascribe to a lack of information rather than to

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an intention to misrepresent. Nor do I assume that all men can be brought to take one view of the questions at issue. I say "questions," although there is, in reality, but one question at issue, and that is whether the exclusive control of the canal for purposes of war is so essential to our national safety that we should discard the advantages that would accrue from its neutralization and devote ourselves to the accomplishment of the opposite policy. And when I speak of the "accomplishment" of the opposite policy, I refer to the removal of existing diplomatic obstacles by negotiation and mutual accommodation, as well as to the acquisition by the same means of the necessary jurisdictional rights in countries now independent. While I am one of those who believe that the physical power of the United States is practically unlimited, I do not assume that the United States will, in sheer wantonness of power, disregard solemn treaties and violate the rights of independent states. Besides, there seems to be a certain incongruity between that just confidence which we feel in our power and the extreme apprehensions sometimes expressed for our safety.

THE PRINCIPLE OF NEUTRALIZATION.

In order to comprehend the import of the stipulations of the pending treaty, it is necessary at the outset to understand the significance of the term “neutralization” or "neutrality" as therein employed. 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 contest with the other. Such is the subjective sense of the term. When used objectively with reference to an interoceanic canal, it embraces belligerent as well as neutral powers, and, while pointedly referring to the former, defines the attitude and the duty of both. It signifies that the thing is "neutral

ized;" that it is to be treated as neutral;" and therefore that it is not to be made the object of attack, nor distinctively employed as the means of hostilities.

Two plans of neutralization have been proposed: first, that of excluding the ships of war of all belligerents; and, second, that of permitting their passage without discrimination. The former plan has not prevailed, and for various reasons. The primary conception of an interoceanic canal is that of a highway always accessible, and nations are disinclined to approach the subject on any other basis. It is foreseen that, when once the canal was opened, the world would soon become so habituated to and dependent upon its use that to allow it to be closed at the behest of any one power might prove to involve inconveniences altogether insupportable. Moreover, as the construction of such a work would require the expenditure of a great amount of money, the general exclusion of belligerent men-of-war would diminish the possibility of securing reimbursement by means of tolls. Finally, there is no universal criterion by which the existence or nonexistence of a state of war can be determined. Not only may a state of war exist without a prior declaration, but the question whether war exists at a particular moment may depend upon the unexpressed intention of the parties as well as upon their acts. Under such conditions the attempt to exclude the men-of-war of belligerents would involve the exercise of a wide discretion and of a large measure of arbitrary power, and, being thus indefinite as to its grounds, it might prove to be uncertain in its operation, unjust and injurious in its effects, and provocative of jealousies, suspicions, and dangerous quarrels.

The second plan, of keeping the canal open at all times, without distinction as to vessels, has therefore been generally approved as the only one that can be relied on to assure complete "neutrality” and immunity. As such it was made the basis of the convention of October 29, 1888, for the free navigation of the Suez Canal, and is adopted as the basal principle of the pending treaty.