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in reality there is no such thing between nations as friendship, beyond the limits of self-interest. Within a twelve-month another gentleman of similar long and distinguished public service said the same thing, and in almost the same words, in a public speech. To one who heard both, the language was so much alike as to be startling. The idea expressed is, of course, at the bottom of our reason for the maintenance of national military forces, but it is rarely heard in such concrete expression; and if appreciated at all, it is not fully realized by those who, on the one hand, hope to secure peace by conventions, or, on the other, rely for the maintenance of our prestige and national safety upon our potential strength, or worse yet upon bombast, which is the daughter of ignorance. The recent humiliation of Russia has given ample evidence of the insufficiency of potential strength, and of the danger that lies in a contempt of the adversary based upon ignorance.
The United States has acquired - for herself alone – far-reaching rights in Panama. By that very fact she has assumed singlehanded equally far-reaching obligations, for rights entail obligations. One of these obligations is the protection of the Canal, and the question must be met how that protection is to be extended. Were the Canal really neutralized, its protection might he held to lie in the moral force exerted by a union of powerful states bound together to maintain its neutralization. But it has been pointed out that the United States is the sole sponsor for the Canal, and the contention is made that the Canal is, therefore, not neutralized. If that contention be admitted it has a great bearing on the protection of the Canal. How shall we maintain our rights there, or discharge our obligations, if some powerful nation shall feel strong enough to gainsay our pretensions at a future day? There is no answer apparent, consistent with our attitude, that leaves out military force.
This again leads to other questions. In what form shall military force be manifested? Shall the defense of the Canal be a navy function, or an army function, or shall it devolve upon both services ? Shall there be permanent fortifications? It has been held in some quarters that no permanent fortifications are needed for the defense of the Canal, which will be sufficiently guaranteed by the navy. To
the mind of the writer this is a grievous error; he firmly believes that no complete defense of the Canal is possible that leaves out either service, but that the defense of the Canal is primarily an army function and only incidentally a navy function, and that permanent fortifications are a necessity. Not to have permanent fortifications at the Canal will operate to tie the navy to the Canal region in war, and that will mean partial paralysis. The navy must be free to go where it can do the most good, and without any drag upon its freedom of action due to a knowledge that in going it may have to leave open vital interests dependent upon it alone. The Canal zone needs permanent fortifications just as truly as does New York City. With them, if the navy be near, it will add greatly to the defense; but if the best interests of the country call it far away the Canal will still be amply protected.
The attitude of the United States toward other nations is one of saying virtually: “Hands off! The Canal is the affair of this nation alone.” If the Canal zone be unfortified and ungarrisoned, that attitude is merely bluff. It is the writer's conviction that the United States will fail in its manifest duty if it neglects to fortify the Canal.36
VI. In what precedes certain facts have been presented and certain opinions advanced regarding the status of the Panama Canal. In conclusion the principal of these are summarized as follows:
The facts are:
(1) The Canal is owned by the United States Government, as permitted by the Hay-Pauncefote Treaty. There is no company, there are no shares, and hence no foreign government or citizen has any vested property rights in the Canal, the treaty rights guaranteed to Panama alone excepted.
(2) The “construction, maintenance, operation, sanitation and protection ” of the Canal belong exclusively to the United States Government.
36 It may be added in this connection that the United States guarantees the independence of Panama, though no mention of the bearing of this guarantee on the question of fortification was made in the original paper. H. S. K.
(3) Commercial freedom of transit is guaranteed. That transit in time of war is included is evident from the Rules relating to belligerents.
(4) Free transit of vessels of war is guaranteed. That transit in time of war is included is evident from the Rules relating to belligerents.
(5) By implication, due to the absence of prohibitions in the Hay-Pauncefote Treaty, the United States has the right to fortify the Canal. By specific stipulation in the Hay-Bunau-Varilla Treaty she has that right, and in that stipulation has proclaimed her belief that the right exists. Further, this right is affirmed by the so-called Spooner Act of June 28, 1902, which, though a domestic law, is open to be read by the world.
The opinions are: (1) The Canal is not neutralized in any proper sense of the word.
(2) The free transit of vessels of war in time of war can not be held to apply to enemies of the United States when the United States is a party to the war. If Great Britain should ever become hostile, the treaty establishing the Rules would be suspended by the existence of war; with other possible maritime enemies the United States has no treaty.
(3) It is the duty of the United States to erect and garrison permanent defenses for the protection of the Canal.
H. S. KNAPP.
The field of international law in general is sharply demarked from that of municipal law, but it is the individuals, composing the population of the various states and nations, who furnish the points of contact where international friction may be generated. With the claims of a citizen or subject against his own government, and its officers and agencies, international law naturally has nothing to do. But when an individual asserts a claim against a government not his own, or against the individuals who carry on its operations, such a claim falls on one side or the other of the boundary between international law and municipal law, according to whether the claimant has or has not an adequate remedy in the ordinary courts of the state against which the claim exists. If he has, it is unusual for his own nation to take any cognizance of the matter at all. If he has not, it is then for his own nation to determine whether to make the cause of the individual the cause of the nation. If it so determine, the boundary line is crossed, and the individual grievance becomes a matter of international adjustment and discussion, which may extend even to the arbitrament of war. In this way, what is really a mere cause of action may become a casus belli.
One of the most notable results of increasing civilization has been the ever-growing recognition of the rights of the stranger. completely such rights are recognized and vindicated by the internal authorities and tribunals, the less occasion there is for resort to external diplomatic pressure, and the less danger there is of international friction.
Thus the development of municipal law upon this subject has an important bearing upon international law. The phase of this development now to be discussed is the so-called "Act of State” doctrine, particularly as exemplified by certain decisions of the courts of England and the United States.
This doctrine may be briefly and baldly stated as follows: An act, which would otherwise be an actionable wrong, may be so
authorized or adopted by a government as to make it an “Act of State ” for which no individual is personally liable, and for which the government can be made responsible only through its own grace or through international recourse. The broader the application of this doctrine becomes, the more cases there will be in which an individual with a real or fancied grievance will find himself unable to secure a judicial determination of the justice of his claim, and thus the larger will be the possible field of international dispute.
Practically all civilized nations provide some method by which claims of a contractual nature against their governments may be presented for determination by a judicial tribunal. Where this remedy is extended to foreigners, as it usually is, and where the tribunal is an independent court of justice, free from executive domination, there is nothing for international cognizance, even if error be committed or injustice done in a particular case. But where the claim “sounds in tort,” there is usually no recourse against the government in its own courts, and the only remedy is against the individual officer who performed or directed the act complained of, leaving to his government the duty to indemnify him in a proper case through extra-judicial channels. This course is somewhat circuitous, and imposes upon a successful claimant the risk of losing the fruits of his victory if the nominal defendant is execution-proof and the government does not see fit to provide an indemnity for the claimant's benefit. In the long run, however, it probably works out as near an approach to substantial justice as any other legal machinery. The theory is apparently this: the king or the state can do no wrong, but the individual officers who administer the government may and not infrequently do. When they do so, they are responsible to the person injured, but if their acts were done in good faith in the service of the state, the state will make good the loss of its servants. So far so good; but here sometimes comes in, as an obstacle to justice, the “Act of State ” doctrine, to relieve the individual without subjecting the government to any liability except in the international forum.
In English jurisprudence, this doctrine seems to have been very broadly asserted at one time by zealous Crown lawyers, and accepted