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into by the Governments of the United States and Great Britain on November 18, 1901.

This leads to an examination of that instrument, which is entitled a "Treaty to Facilitate the Construction of a Ship Canal," 3 and was proclaimed February 22, 1902, after due ratifications. It is better known as the Hay-Pauncefote Treaty.

In making this examination it should be borne in mind that the Hay-Pauncefote Treaty is the culmination of many years' dissatisfaction in the United States with the provisions of the treaty concluded in 1850 between the same nations which is generally known as the Clayton-Bulwer Treaty. The latter will be examined later, the present object being to discover exactly what conventions exist to-day under which the United States has obtained rights and as sumed duties.

The Hay-Pauncefote Treaty recites in the preamble that the High Contracting Parties

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 ClaytonBulwer 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, etc.

Article I reads:

The High Contracting Parties agree that the present treaty shall supersede the afore-mentioned Convention of the 19th April, 1850. Article II reads:

It is agreed that the canal may be 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 reads:

The United States adopts, as the basis of the neutralization of such ship canal, the following Rules, substantially as embodied in the Con3 Compilation of Treaties in Force, 1904, p. 380.

vention 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 reads:

It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the beforementioned canal shall affect the general principle of neutralization or the obligation of the High Contracting Parties under the present Treaty.

Article V, which is the last, has the usual phraseology concerning ratification.

Article II is an evidence of the determination of the United States that its government should own the Canal if it seemed best, and control it under any circumstances, alone and unaided.

Article III sets forth certain Rules as the basis of the "neutralization" of the canal,

substantially as embodied in the Convention of Constantinople,* signed the 28th October, 1888, for the free navigation of the Suez Canal.

There are significant omissions, however. In Article I of the Constantinople Convention it is declared:

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."

Again Article IV of the Constantinople Convention, in expressing the agreement of the powers to refrain from acts of hostility and belligerent operations, or acts having obstruction of the Canal in view, uses these words:

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The Maritime Canal remaining open in time of war as a free passage, even to the ships of war of belligerents even though the Ottoman Empire should be one of the belligerent Powers."

The words in italics are not to be found in the Hay-Pauncefote Treaty, nor any words that can be construed to have a like meaning. This is the more significant when it is recalled that Lord Pauncefote was one of the negotiators of the Convention of Constantinople. It is true that the reading of Rule 6 of the Hay-Pauncefote Treaty at first sight appears to have a provision to a similar effect in the words. "and in time of war, as in time of peace, shall enjoy," etc. But that makes no mention of, nor can its language be inferred to mean, any obligation to keep the Canal open to an enemy of the United States. By Rules III and IV belligerents are not forbidden to use the Canal; indeed the language of the Rules assures that they may

4 Senate Document No. 151, 56th Congress, 1st Session.

5 See Part IV of this paper.

6 Italics the writer's.

7 Italics the writer's.

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use it. The article opens with the words "The United States adopts "; but nowhere is the United States specifically mentioned as a belligerent, or included in definite words in any such manner as is the Ottoman Empire in the articles of the Constantinople Convention. Nor is any special definite authorization laid down that an enemy of the United States may use the Canal to the detriment of the latter's interests. However far the Rules go in allowing the use of the Canal to belligerents in a war where the United States is a neutral, they certainly do not specifically include a belligerent who is an enemy of the United States. In this respect they are radically different from the Rules agreed to by the powers signatory to the Constantinople Convention, and the internal evidence of their wording is that they are adopted by the United States as the guide to its conduct in the treatment of belligerents in a war in which the United States itself is not engaged, and that only to that extent does the United States guarantee the "neutralization" of the Canal. Had the United States intended that the Canal should be free and open in war to its own enemies, it is certain that, with the provisions of the Constantinople Convention before the negotiators and avowedly used by them as a basis, the Rules would have been so specifically drawn as to obviate any doubt. doubt. As the text reads no such construction is admissible.

There is another significant omission in the Hay-Pauncefote Rules. The Constantinople Convention, in Articles IX and X, provides for certain measures for ensuring the execution of the treaty, for the maintenance of public order, and for the Imperial Ottoman Government ensuring

by its own forces the defence of its other possessions situated on the eastern coast of the Red Sea.

Article XI says:

The measures which shall be taken in the cases provided for by Articles IX 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.s

8 Italics the writer's.

The provisions of Article VIII referred to are found in the words:

They (the Agents in Egypt of the Signatory Powers) 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 VII says, in part:

The powers shall not keep any vessel of war in the waters of the Canal. These prohibitions are not found in the Hay-Pauncefote Rules, and the British Government's view in this connection was expressed in a memorandum by Lord Lansdowne (August 3, 1901) communicated to Mr. Hay through Lord Pauncefote, in which is said:

I understand that by the omission of all reference to the matter of defence the United States Government desires to reserve the power of taking measures to protect the canal, at any rate when the United States may be at war, from destruction or damage at the hands of an enemy or enemies. * * * 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 defence of the canal at a moment when they were themselves engaged in hostilities."

There are four other protocols or conventions that have a bearing upon transit across the Isthmus. On December 1, 1900, protocols were signed with the representatives of both Costa Rica and Nicaragua agreeing that negotiations shall be entered into

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when the President of the United States is authorized by law to acquire control of such portion of the territory now belonging to Costa Rica (Nicaragua) to construct and protect a canal from a point near San Juan del Norte on the Caribbean Sea, via Lake Nicaragua to Brito on the Pacific Ocean.

It was further agreed that the course and terminals of the Canal should be the same as

were stated in a treaty signed by the Plenipotentiaries of the United States and Great Britain on February 5, 1900, and now pending in the Senate of the United States for confirmation.

9 Quoted in a paper by Professor Latané on the Neutralization Features of the Hay-Pauncefote Treaty in the Annual Report of the American Historical Associa tion for 1902.

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