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Westlake says, after quoting Article VI of the Anglo-French Declaration. 33
so it is to be expected that the ratifications will be exchanged, if they have not already been so.
This shows the interpretation of three British authorities. The last edition of Bonfils, p. 281, notes the terms of Article VI of the Declaration. Despagnet says:
A la conférence de 1885 et en signant le traité de 1888, l'Angleterre avait fait des réserves en ce qui concernait son droit de disposer due canal pour sauvegarder sa situation en Egypte tant qu'elle occuperait ce pays. Dans son arrangement général du 8 Avril 1904 art. 6 avec la France, elle a renoncé à ces réserves et accepté l'application immédiate du traité de 1888.
Professor Politis, Fellow of the Faculty of Law of the University of Poitiers and Associate of the Institute of International Law, in a discussion of the Declaration concerning Egypt and Morocco, after remarking that the reservations of 1885 and 1887 put the treaty at the mercy of (à la discrétion de) Great Britain, which could, according to her interests, permit or refuse its application, says later: 35
In fact the freedom of the Canal continues to remain at the mercy of Great Britain.
There can be no doubt of this, considering Great Britain's sea power and her situation in Egypt, but his next words signify what he considers its status in law since the Anglo-French Declaration. He continues :
Mais on peut dire qu'en droit, le régime du canal se trouve fortifié et mis hors de doute, par la cessation de tout malentendu au sujet du caractère obligatoire de la convention de Constantinople.
Nys does not mention either the reservations or their renunciation, but his work on International Law, though its publication began in 1904, must have been written too early for the latter. Enough has been quoted to show the understanding of well-known Continental authors as to the present status of the Constantinople Convention.
33 Int. Law, Pt. I, pp. 328–329. 34 Cours de Droit International Public, 1905, pp. 503-504. 35 Revue Générale de Droit International Public, Tome XI, 1904, p. 697.
As has before been stated, there is no sufficient reason to doubt Great Britain's good faith in the Declaration of April 8, 1904. Her supreme interest is in absolute freedom of traffic for her merchant vessels and men-of-war, which the Convention of 1888 guarantees; her understanding with France removes any anxiety about her oecupation of Egypt; and it is not difficult to imagine her freedom from care regarding the use of the actual waters of the Canal and its approaches by the warships of any future enemy, situated as she is at Malta and the mouth of the Red Sea.
We may, therefore, regard the Constantinople Convention in full effect. It remains to consider how far the Canal is “ neutralized by that convention, in the sense of the word as developed in Part III. Taking Latané's summary, p. 339, supra, point by point, it appears that:
(1) The Constantinople Convention is a formal act between nine powers of Europe, including all the great European maritime powers,
, and its terms specify perpetuity; hence it is not revocable at will except by the concurrence of all the signatory powers, or by force majeure.
(2) The signatory powers include all the great military powers of Europe. This fact should make the guaranty effective so far as any pact can to which the several nations have pledged their faith.
(3) Fortifications are forbidden (Articles VIII and IX), and Article VII is along the same precautionary line.
(4) There is a limitation of full rights of sovereignty in the mere fact that Turkey expressly surrenders for herself certain rights she would otherwise have as a belligerent, and gives by convention to her possible future enemies certain rights they could only have otherwise by force, in waters lying entirely within her territorial limits; and also in the provisions of Article VIII and Article IX.
(5) The word “always” in Article I, the provisions of Article XV, and the fact that the words “in time of war” occur repeatedly in the instrument, all go to establish a permanent condition, and one brought into complete operation by a state of war.
Considering next Latané's extension of the principle of neutralization to waterways, his first and third points are covered by the
existence of the Constantinople Convention itself, the concurrence of many powers being as great a preventive as possible against "the temptation to appropriate them (the Canal) for national purposes.' The second point has some application. French writers quite generally say that the Canal is not “neutralized” by the Convention because the passage of belligerent ships is permitted, and Westlake makes a similar remark (Part I, p. 330, footnote). This is undoubtedly true, considering the neutralization of the Canal on a strict parallel with the neutralization of territory. But when the difference between the laws of land warfare and maritime warfare is taken into account, it may safely be said that the Suez Canal is neutralized. Without bad faith no signatory power can appropriate the Canal to its sole use for belligerent purposes, or take steps to forbid the passage of the warships of its enemy; and the combined influence of the signatory powers will doubtless discourage non-signatory powers from any such attempt. Thus the Suez Canal is neutralized although the word “neutralization” does not occur in the Convention of 1888, the idea being conveyed by such terms as “ free and open,” “ free use," "open in time of war” and “principle of equality,” as well as by the prohibitions of the instrument. It is interesting here to note Lord Granville's instructions to the British delegates to the Paris Commission in his dispatch of May 2, 1885:
In order to prevent future misapprehension as to the views of Her Majesty's Government with regard to the Suez C'anal, I have to request you to be careful during the discussion attending the preparation of the draft regulations regarding the canal, to avoid the use of the word " neutrality” as applied to the canal, and to adhere to the term “freedom" or "free navigation," as used in the declaration of the 17th March, and in my circular dispatch of the 3rd January, 1883.
Although the delegates replied to Lord Granville's caution that there would be no danger in the use of the word neutrality inasmuch as there has been common accord from the first that the term, as applied to the canal, had reference only to the neutrality which attaches by international law to the territorial waters of a neutral state in which a right of innocent passage for belligerent vessels exists, but no right to permit any act of hostility, yet his view prevailed in the finished instrument.
The question naturally arises whether the growth of sentiment in the succeeding
is sufficient to account for the use of the word neutralization” in the ratified treaty concluded by Lord Pauncefote with Mr. Hay.
Turning now to that treaty, and applying the same criteria as have been used above, it appears:
(1) There is a formal act of agreement between the United States and Great Britain, and another, hinging on the first, between the United States and Panama; but these are all. In case of war with Great Britain the former treaty would go to the winds.
(2) There is a lack of sufficient number of states, conventionally bound, to make the treaty effective if the United States wishes to abrogate it by notice, or if it is automatically abrogated by war with Great Britain. This is not to say that a coalition could not force the United States to take a desired line of action, but simply that no states are pledged to such collective action by treaty engagements.
(3) Fortifications are not forbidden by the treaty, and the circumstances attending the omission of the prohibition from the final draft of the treaty have been noted above. Further, in the treaty with Panama the United States explicitly reserved the right to fortify, giving an additional notice to the world, if one were needed, as to her attitude regarding this particular right.
(4) There is a limitation of the sovereignty of the territorial power, which by the terms of the treaty with Panama, concluded exactly two years after the Hay-Pauncefote Treaty, descends in some manner to the United States, so long as the latter treaty stands. But these limitations are far from going to the extent of those established in the Constantinople Convention. Moreover, by the terms of Panama's treaty, with the United States the limitations upon the former's sovereignty are yielded to one nation only, and that a powerful one, which virtually assumes a protectorate of Panama; Egypt, on the other hand, is a suzerainty of Turkey, and not an independent state, and the limitations of sovereignty imposed by the Constantinople Convention are upon Turkey, herself a weak state, and are yielded to all the great states of Europe acting in concert.
(5) The permanency of the treaty as toward Great Britain exists as long as we are at peace with her, and ceases whenever we choose
to engage her in war. To other nations, its provisions are simply a declaration of intentions. Beyond equality of treatment no other nation has a right to hold us to an observance of the Rules.
Thus in essential particulars the Hay-Pauncefote Treaty does not, and can not, establish“ neutralization.” Using the word, the treaty fails to secure the fact in any exact sense, in which it is precisely the reverse of the Convention of 1888. It is unfortunate that the word should have been used at all, and it is regrettable that the distinguished American negotiator did not, both in this treaty and the later one with Panama, take his guide from Lord Granville's letter of instructions in 1885 to the delegates to the Paris Commission. The reason why the British negotiator allowed the use of the word is not difficult to see. But with or without the word, the Hay-Pauncefote Treaty does not establish the neutralization of the Panama Canal.
Reviewing this phase of the question before us it is evident that the status of the Suez Canal as regards neutralization does not furnish any real precedent for that of the Panama Canal. The former status rests upon a convention that is international in the broad sense of being subscribed to by a sufficient number of powerful states to enforce its provisions against the world, and a convention in which the rules governing neutralization are declared by those states jointly. The latter status rests upon the provisions of the HayPauncefote Treaty (upon which the treaty with Panama hinges), which is international only in the narrow sense that more than one nation is a signatory power. Moreover, even in that treaty the language is: “ The United States adopts * * * .” It only remains to add that the Constantinople Rules were not adopted until nearly twenty years after the opening of the Suez Canal, during which its free use for navigation gave to the users a sort of prescriptive interest that had its great effect during the formulation of the Rules; the Rules for the use of the Panama Canal will not go into effect for a decade to come.
V. In the summer of 1906 the writer was much impressed by a remark made by a gentleman whose long and distinguished public service entitles his words to great respect. He said, in effect, that