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TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN TO FACILITATE THE CONSTRUCTION OF A SHIP CANAL
[Signed at Washington, November 18, 1901; ratification advised by the United States Senate, December 16, 1901; ratified by the President, December 26, 1901; ratified by Great Britain, January 20, 1902; ratification exchanged at Washington, February 21, 1902; proclaimed at Washington, February 22, 1902.]
[I. Convention of April 19, 1850.
II. Construction of canal. III. Rules of neutralization.
IV. Change of sovereignty.
THE UNITED STATES OF AMERICA and HIS MAJESTY EDWARD THE SEVENTH, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, and Emperor of India, 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 Clayton-Bulwer 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:
The President of the United States, JOHN HAY, Secretary of State of the United States of America;
And His Majesty Edward the Seventh, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, and Emperor of India, the Right Honourable LORD PAUNCEFOTE, G.C.B., G.C.M.G., His Majesty's Ambassador Extraordinary and Plenipotentiary to the United States;
Who, having communicated to each other their full powers which were found to be in due and proper form, have agreed upon the following Articles
The High Contracting Parties agree that the present Treaty shall supersede the afore-mentioned Convention of the 19th April, 1850.
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.
The United States adopts, as the basis of the neutralization of such ship canal, the following Rules, substantially as embodied in the Convention of Constan
1 Manuscript. United States Department of State. Archives. Treaty Series, No. 401. Also 8. Doc. No. 474 (63d Cong., 2d Sess.), pp. 292–94; W. M. Malloy, op. cit., I, 782-84 (US). (363)
tinople, signed the 28th of 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 works 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.
It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the High Contracting Parties under the present Treaty.
The present Treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by His Britannic Majesty; and the ratifications shall be exchanged at Washington or at London at the earliest possible time within six months from the date hereof.
IN FAITH WHEREOF the respective Plenipotentiaries have signed this Treaty and thereunto affixed their seals.
DONE in duplicate at Washington, the 18th day of November, in the year of Our Lord one thousand nine hundred and one.
JOHN HAY. [Seal]
NEW YORK, April 22, 1977.
Hon. MORARJI DESAI,
Prime Minister of India, New Delhi, India
DEAR SRI MORARJI DESAI-JI Namaste!
It is my duty as a friend and Indian citizen to invite your attention to the efforts of some Americans, in apparent disregard of India's Treaty rights connected with the proper operation of the Panama Canal, to cede U.S. sovereign rights and responsibilities over that vital world waterway to the self-proclaimed Panamanian dictatorship.
In 1903 Panama ceded to the United States all sovereign rights over the Canal Zone necessary for the construction, operation, maintenance and defense of the
Panama Canal. The obligations of the United States to the world community as related to the Panama Canal had been previously stipulated in detail in the HayPauncefote Treaty of 1901.
As the Hay-Pauncefote Treaty was entered into specifically on behalf of India as well as Great Britain, it is evident that before the United States could legitimately cede its sovereign rights and responsibilities to Panama, the Indan Parliament has the Treaty right to thorough study and informed debate on the issue and to ascertain to its full satisfaction whether or not the Panamanian dictatorship is capable of fulfilling the exacting obligations stipulated in the Hay-Pauncefote Treaty.
The issue involved, despite the transit of forty or more Indian vessels through the Panama Canal annually, transcend commercial matters, however important they may be to India and the world economy. It is clear that the United States should not cavalierly and immorally ignore India's Treaty rights in this matter. As a strong advocate of a close friendshp between India and the United States, the world's two largest countries with freely-elected democratic Constitutional government, I believe that the right of the elected representatives of the Indian people assembled in Parliament to duly consider the implications and ramifications of possible U.S. abandonment of its responsibilities concerning this important world waterway should be exercised, and should receive due respect from the United States.
The sanctity of treaty obligations and the immorality and thus fundamental irresponsibility of dictatorships, be they in Panama or anywhere else, are at issue, as well as the common sense issue of the possible deleterious effect on all of the nations of the world of a naive U.S. transfer of its stewardship of the Panama Canal to a Panamanian dictatorship which may be violating the basic Human Rights of its own people.
Naturally, as an Indian and Religious personnel, I am concerned with Human Rights everywhere, and as the son and brother respectively of two late Chancellors of the Chamber of Princes of India, with respect for the rights of our beloved Mother India.
With warmest personal regards and highest esteem,
Raja of Patiala, B.A. (Hon.), M.M., M.A.R. (Comparative Religion), Yale
PANAMA CANAL, 1971
Wednesday, September 22, 1971
HOUSE OF REPRESENTATIVES,
The subcommittee met at 2 p.m., in room 2200, Rayburn House Office Building, Hon. Dante B. Fascell (chairman of the subcommittee) presiding.
Mr. FASCELL. The subcommittee will please come to order.
The United States is presently negotiating a new treaty governing the control and operation of one of the world's most important waterways-the Panama Canal.
For 57 years, the canal has provided immense economic benefits to the United States, Panama, and the entire world. In times of war and crisis, it has given us important military flexibility.
Over the years since the original treaty between the United States and Panama for construction of the canal, the United States, in response to Panamanian requests, has modified the original treaty two times by treaty. While relations between our two countries are necessarily close and generally friendly, there remains a good deal of conflict and controversy over the canal. In the belief that these problems, if left unresolved, might permanently embitter relations between our two countries and in order to provide for needed new canal capacity, President Johnson agreed to negotiate a new treaty with Panama. While draft agreements were signed, they were never submitted for ratification in either country. 97-565-77-24
Last December, the Atlantic-Pacific Interoceanic Canal Study Commission recommended that the United States construct a new sea level canal in Panama 10 miles west of the present canal site. Following this recommendation, President Nixon decided to reopen talks with Panama on a basic treaty governing U.S. canal rights.
While the House of Representatives does not have a direct voice in approval of treaties, many Members of Congress feel that the canal is so vital to U.S. interests that we should not give up a single right in the Canal Zone. The breadth and depth of this concern is evidenced by the fact that 88 Members have introduced 42 House resolutions to express the sense of the House of Representatives that the U.S. maintain its sovereignty and jurisdiction over the Panama Canal Zone.
The subcommittee is meeting today to consider the resolutions and to hear from our distinguished colleagues on this subject.
The greatest exponent of all is our great and distinguished colleague from Pennsylvania who has made a lifelong study of this matter, Hon. Dan Flood, who frightens me by the length of the tome that is in front of him.
Without objection, we will include it in the record, because I know from personal experience over a long number of years he does not need that or anything else to talk.
Mr. Flood's prepared statement and attachments follow :)
STATEMENT OF HON. DANIEL J. FLOOD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Chairman, as former member of the Committee on Foreign Affairs with assignment to the Subcommittee on Inter-American Affairs when first coming to the Congress, I am happy to be with you again on the vital interoceanic canal question-a subject of world importance destined to receive much attention in the future.
BASIS FOR DEEP INTERESTS IN INTEROCEANIC CANAL PROBLEMS
For many years I have been studying Panama Canal history and problems and made numerous addresses in and out of the Congress on this complex matter. The deeper that I have delved into it the more I have been impressed with the vision and wisdom of those great leaders, who, in the early party of the century formulated our Isthmian Canal policies. They were Rear Admiral John G. Walker, John Bassett Moore, Secretary of State John Hay, Secretary of War William Howard Taft, John F. Stevens, George W. Goethals, and above all, President Theodore Roosevelt.
Because many of my colleagues and others have asked me what is the explanation for my long time interest in interoceanic canal problems. I wish to say that during my boyhood in Hazleton, Pennsylvania, ex-President Roosevelt used to be an occasional house guest in my grandfather's home. He spent many hours describing how the Canal Zone was acquired and his problems in launching the construction of the Panama Canal, which he viewed as comparable in geo-political significance with the Louisiana Purchase. Thus he became my youthful ideal and created a lifetime interest on my part in Isthmian Canal policy questions for which I have always been grateful.
CANAL ZONE AND PANAMA CANAL INSEPARABLE
The Panama Canal enterprise consists of two inseparable parts: (1) the Canal itself, and (2) its absolutely necessary protective frame of the Canal Zone territory. The two great canal issues now before the nation are: (1) the transcendent key issue of retaining United States undiluted sovereignty over the Canal Zone and (2) the important project of modernizing the existing Panama Canal by the construction of a third set of larger locks for larger vessels adapted to include the principles of the strongly supported Terminal Lake Plan, which was developed in the Panama Canal organization as the result of World War II experience. All other issues, however important, are irrelevant and should not be allowed to confuse or further delay proper consideration of the two pertinent ones.
Unfortunately, the handling of the two principal issues has been greatly complicated by radical Panamanian attacks on U.S. sovereignty over the Canal Zone and the exhumation of the corpse of the old controversy over types of canal
high level lake lock versus sea level tidal lock. Because of the prime importance of the question of sovereignity, a knowledge of the history of its evolution is essential for reaching wise decisions.
EXCLUSIVE U.S. CONTROL IN PERPETUITY BASED ON HISTORY
The present status of the Canal Zone territory traces back to the 1901 HayPauncefote Treaty between the United States and Great Britain that ended half a century of conflict over canal routes. In line with that agreement, the United States made the long range commitment to construct and operate an Isthmian canal under its exclusive control in accordance with the rules set forth in the 1888 Convention of Constantinople for the operation of the Suez Canal.
At the same time that the Hay-Pauncefote Treaty was being negotiated, our government was conducting a major investigation by an Isthmian Canal Commission for Exploration with Rear Admiral Walker, one of our ablest naval officers of his time, as president. In the supplementary report of that commission on January 18, 1902, recommending the construction of the Panama Canal, it made the following highly significant recommendation that merits study:
"The grant (for an Isthmian Canal) must not be for a term of years, but in perpetuity, and a strip of territory from ocean to ocean of sufficient width must be placed under the control of the United States. In this strip the United States must have the right to enforce police regulations, preserve order, protect property rights, and exercise such other powers as are appropriate and necessary.” (Sen. Doc. No. 123, 57th Congress, 1st Session, p. 9.)
The reason for this recommendation was that this commission had studied Isthmian history and foresaw that only by such exclusive control could the project for an Isthmian canal be successfully constructed, maintained, operated and protected.
What did our government do? Under the dynamic leadership of President Roosevelt, the Congress passed the Spooner Act, approved June 28, 1902, authorizing the President to acquire by treaty with Colombia the perpetual control of the needed strip across the Isthmus and to construct thereon, and to "perpetually maintain, operate and protect," the Panama Canal. It also provided, in event of inability to secure the necessary strip from Colombia, for obtaining the needed territory for the construction of a Nicaragua Canal.
U.S. ACQUIRES EXCLUSIVE SOVEREIGN CONTROL OF CANAL ZONE, 1904 Events developed quickly. When the Colombian Senate failed to ratify the Hay-Herrán Treaty of January 23, 1903, Panamanian leaders, fearing that the Canal would be lost to Nicaragua, decided to secede from Colombia and thus enable the United States to make the canal treaty with Panama instead of Colombia.
In the resulting convention of November 18, 1903, following the Panama Resolution of November 3, Panama granted to the United States in perpetuity the "use, occupation and control" of the Canal Zone territory for the "construction, maintenance, operation, sanitation, and protection" of the Panama Canal with full "sovereign rights, power and authority" within the Zone to the "entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority." This was the indispensable agreement under which the United States undertook the great task of completing the construction of the Panama Canal and its subsequent operation and defense, which is binding on the United States as fully as on Panama. (Hay-Bunau-Varilla Treaty, Articles II and III, quoted in Foreign Relations, 1904, pp. 543-51.)
The terms of this treaty were not accidental. Our leaders at that time had studied the history of the Isthmus and understood the problems that would be involved in such undertaking in a land of frightful disease and endemic revolution. They realize that the United States could not accept responsibility without complete authority as best stated in Article III of the 1903 Treaty. Just as the provisions of this treaty bind the United States in perpetuity to maintain, operate and defend the canal, they are likewise binding on Panama to recognize their validity. Moreover, except for the prompt recognition by the United States of the independence of the Province of Panama following the Panama Revolution of November 3, 1903, the Republic of Panama could never have survived and the Panama Canal would never have been constructed. (For additional information see Earl Harding, The Untold Story of Panama, New York: Athene Press, 1954.)