« PreviousContinue »
world, and because the concurrence of the two great powers of North America must carry for that part of the new world something of the same authority which the concurrence of the great powers carries for the old, especially with relation to a waterway so vitally affecting the communication between the Atlantic and the Pacific coasts of each. We may treat the conditions, under which interoceanic canals can be made conducive to commerce and all peaceful development, as being henceforth an ascertained part of International Law."1
It has also been seen that the treaties in existence dealing with the position of the Panama Canal are entered into by the states more directly concerned, and contain the essential features of neutralisation.
One of such treaties (the Hay-Pauncefote) was framed avowedly taking the Convention of Constantinople as its model. It is hardly necessary to insist on the fact that there is a real analogy between the Panama and Suez Canals. And since the Suez Canal is undoubtedly a neutralised waterway, it necessarily follows that this legal status would be applied mutatis mutandis to the Panama Canal. It will be interesting to quote here the words of Doctor Lawrence, who argues that since Great Britain and the United States have embodied in the Hay-Pauncefote treaty "provisions already accepted with regard to the Suez Canal by the civilised world, it is exceedingly improbable that objections will be raised against the same provisions when applied to the only other canal of the like kind on the face of the earth."2
1 International Law, Part I, pp. 330, 331.
2 The Principles of International Law, 4th ed. 1910, p. 201.
The opinion has further been advanced that the non-belligerent idea that forms the essential characteristic of the notion of neutralisation cannot imply the suspension of the right of self-defence, and as a corollary of this, the erection of fortifications, should the Panama Canal ever be fortified, cannot be said to be incompatible with its neutralisation.
It is not possible, in the face of such evidence as that here adduced, to avoid the conclusion that the Panama Canal is endowed with the privileges and liabilities of neutralisation. Professor Oppenheim has already put it in terse and forcible language. The Hay-Pauncefote treaty of 1901, he says, "neutralises permanently the Panama Canal of the future."1 The freedom of navigation for all vessels of all nations, and at all times, by what are considered to be the highways of the world, is a principle deeply entwined in the roots of International Law. It cannot be otherwise, for on it depends that natural intercourse among nations which is of such vital importance for the maintenance of those relations which International Law attempts to regulate. Therefore, even quite apart from the weighty moral considerations that may be adduced in favour of neutralisation as restricting the area of hostilities, and thus extending, although in a small degree, the blessing of peace, it may be said that on general legal grounds, as has been remarked by a learned authority, the "great majority of writers on the subject are strong advocates of neutralisation, and this principle is certainly in line with the tendencies of International Law." 2
1 International Law, vol. i. p. 568. 2 Latané, op. cit. and loc. cit.
TREATY OF PEACE, AMITY, NAVIGATION, AND COMMERCE, BETWEEN THE UNITED STATES AND NEW GRANADA, ESTABLISHING THE NEUTRALISATION OF THE ISTHMUS OF PANAMA.
Concluded December 12, 1846.
THE United States of America and the Republic of New Granada, desiring to make as durable as possible the relations which are to be established between the two parties by virtue of this treaty, have declared solemnly and do agree to the following points:
Ist. For the better understanding of the preceding articles, it is and has been stipulated between the high contracting parties that the citizens, vessels, and merchandise of the United States shall enjoy in the ports of New Granada, including those of the part of the Granadian territory generally denominated Isthmus of Panama, from its southernmost extremity until the boundary of Costa Rica, all the exemptions, privileges, and immunities concerning commerce and navigation which are now or may hereafter be enjoyed by Granadian citizens, their vessels or merchandise; and that this equality of favours shall be made to extend to the passengers, correspondence, and merchandise of the United States in their transit across the said territory from one sea to the other. The government of New Granada guarantees to the government of the United States that the right of way or transit across the Isthmus of Panama, upon any modes of communication that now exist or that may hereafter be constructed, shall be open and free to the government and citizens of the United States, and for the transportation of