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All the maritime nations have interests of transcendent value on those sea-routes which, on account of their position as supplying the most convenient means of communication, may properly be called international. This is the reason why the civilised world has concentrated so much attention upon the question of the Panama Canal. The engineer has by now very nearly completed his share in the great task of uniting the Atlantic and the Pacific Oceans by means of a canal, thus providing a more rapid and easy means of intercourse between different peoples. It remains for the jurist to ascertain what is the legal position of the canal, so that this work of civilisation, being placed under the rule of law and justice, may be as productive of welfare to mankind as it is possible. It is his duty to examine the value of the international agreements that refer to the question of interoceanic transit under the light of legal theory and as resting on the hard facts of history, gauging at the same time the immediate effects not less than the possible consequences that may result from the adopted solution of the problem. In my endeavours to find the answer to the question relating to the legal status of the Panama Canal, it has been my aim to put aside any personal bias or national prejudice, thus endeavouring to carry into my work a judicial impartiality.
It seemed advisable, before dealing with the purely legal aspect of the question, to examine at some length the diplomatic history of the interoceanic transit, for such an inquiry would serve as a preliminary to the solution of the problem, thus placing us in a position to ascertain how far the status of the waterway is the result of a kind of compromise springing from the diverse and conflicting interests and aspirations of the powers more directly affected by the opening of the new route. I have, therefore, dealt with the attitude of the United States towards the canal question, showing the variations that their policy in this connection has undergone in the course of years, and tracing the influence that Great Britain has brought to bear on this important problem. I have also discussed, somewhat briefly, the later amplifications of President Monroe's well-known message in their bearing on isthmian transit in the New World, thus reviewing the diplomatic wrangles that have resulted from the attempt of the United States to apply to the question their famous Doctrine in its advanced form.
In endeavouring to ascertain the position of the Panama Canal under the law of nations, I have not confined myself to the consideration of the treaty stipulations that exist with regard to the interoceanic communication. For in order to arrive at the solution of some international problems it is sometimes necessary to inquire into the requirements of life, without losing sight of the tendencies of the law as manifested in the modern intercourse of nations. International Law, it must be borne in mind, is inseparably intertwined with some other branches of social science. It is for this reason that many of the notions therein contained cannot be expounded satisfactorily by mere legal reasoning. I have also, therefore, briefly dealt with some important factors—such as the geographical position of the canal and the interest that all nations have on the question of transit—which undoubtedly throw much light on the ultimate position that the Panama Canal will be made to assume. From this, as well as from the purely legal standpoint, I have endeavoured to deal with the nature, causes, and consequences of the notion of neutralisation as applicable to waterways, and have also compared the Suez
and Panama Canals in respect of their legal position, owing, especially, to the fact that the Hay-Pauncefote treaty, which purports to bestow on the Panama Canal the privileges and liabilities of neutralisation, avowedly adopts the Suez Convention as its model. I have concluded my little work by dealing briefly with the question as to whether the erection of fortifications on the route would be repugnant to the notion of neutralisation. An appendix has been provided with the purpose of supplying an easy means of reference to the different articles of the treaties that deal with the matter under consideration.
For the preparation of this essay it was found necessary to study a considerable number of state documents, general treatises on International Law, pamphlets, and monographs. I have endeavoured throughout to acknowledge all the works from which I have derived assistance, hoping that this method, though cumbrous because it overloads the pages with too numerous references, may serve as a ready guide to those who may require a more detailed information, and also afford an opportunity for checking or correcting my assertions. The help that I have derived from Dr. A. Pearce Higgins, Lecturer in International Law at the London School of Economics, is of a different nature. I must acknowledge here my debt of gratitude towards him for his sympathetic aid in reading the whole of my manuscript, which has thus necessarily profited by his great care and profound judgment.
The London School of Economics
and Political Science,
May 16th, 1911