#26. Hay-Pauncefote Treaty of February 5, 1900 between the United States and Great Britain*

Feb. 5, 1900, Mr. Hay, Secretary of State, and Lord Pauncefote, British ambassador, signed at Washington a convention, the objection of which was declared to be "to facilitate the construction of a ship canal to connect the Atlantic and Pacific Oceans, and to that end to remove any objection which may arise out of the convention of April 19, 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 Art. VIII. of that Convention." a

The convention of Feb. 5, 1900, was communicated to the Senate, with a message of the President bearing date as of the same day.

The Senate gave its advice and consent to the exchange of ratifications, with certain amendments, which are denoted below in italics, except in the case of Art. III., which, as is indicated by brackets, was stricken out, Art. IV. being made Art. III. :

ARTICLE I. 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 Convention, 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.

ARTICLE II. The High Contracting Parties, desiring to preserve and maintain the "general principle" of neutralization established in Article VIII. of the ClaytonBulwer Convention, which convention is hereby superseded, adopt, as the basis of such neutralization, the following rules, substantially as embodied in the convention between Great Britain and certain other Powers, signed at Constantinople October 29, 1888, for the Free Navigation of the Suez Maritime Canal, that is to say:

1. The canal shall be free and open, in time of war as in time of peace, to the vessels of commerce and of war of all nations, on terms of entire equality, so that there shall be no discrimination against any nation or its citizens or subjects in respect of the conditions or charges of traffic, or otherwise.

2. The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it.

*Moore, A Digest of International Law (1906), v. 3, pp. 210-211. See also U.S. Senate, Canal Treaties: Executive Documents Presented to the United States Senate Together With Proceedings by the Senate Thereon Relative to the Panama Canal. Washington, Govt. Print. Off., 1914. 63rd Congress, 2d session. Senate Document No. 456, pp. 9-19. JX1398.5.A5 1914c.

a See Mr. Hay, Sec. of State, to Mr. White, chargé at London, No. 976, Dec. 7, 1898, MS. Inst. Gr. Br. XXXIII. 40; and Mr. White's No. 613, of Dec. 22, 1899. bS. Doc. 160, 56 Cong. 1 sess.

See, as to the amendments, report of Mr. Davis, Com. on For. Rel., March 9, 1900, and statement of Mr. Morgan, for the minority, S. Ex. Report, No. 1, 56 Cong. 1 sess., printed as S. Doc. 268, 56 Cong. 1 sess,

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 three 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.

It is agreed, however, that none of the immediately foregoing conditions and stipulations in sections numbered one, two, three, four, and five of this article shall apply to measures which the United States may find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order.

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 convention, 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.

7. No fortifications shall be erected commanding the canal or the waters adjacent. 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.

[ARTICLE III. The High Contracting Parties will, immediately upon the exchange of the ratifications of this Convention, bring it to the notice of the other Powers and invite them to adhere to it.]

ARTICLE IV. The present convention shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by Her Britannic Majesty; and the ratifications shall be exchanged at Washington or at London within six months from the date hereof, or earlier if possible. (Sen. Doc. 85, 57 Cong. 1 sess. 7.)

#27. Protocol of an Agreement Between the Governments of the United States and of Costa Rica in Regard to Future Negotiations for the Construction of an Interoceanic canal by way Lake Nicaragua, 1900*

of

It is agreed between the two Governments that when the President of the United States is authorized by law to acquire control of such portion of the territory now belonging to Costa Rica as may be desirable and necessary on which to construct and protect a canal of depth and capacity sufficient for the passage of vessels of the greatest tonnage and draft now in use, from a point near San Juan del Norte, on the Caribbean Sea, via Lake Nicaragua, to Brito, on the Pacific Ocean, they mutually engage to enter into negotiations with each other to settle the plan and the agreements, in detail, found necessary to accomplish the construction and to provide for the ownership and control of the proposed canal.

As preliminary to such future negotiations it is forthwith agreed that the course of said canal and the terminals thereof shall be the same that were stated in a treaty signed by the plenipotentiaries of the United States and Great Britain on February 5, 1900, and now pending in the Senate of the United States for confirmation, and that the provisions of the same shall be adhered to by the United States and Costa Rica.

In witness whereof the undersigned have signed this protocol and have hereunto affixed their seals.

Done in duplicate at Washington this first day of December, 1900.

JOHN HAY. BEAT

Report of the Isthmian Canal Commission (1904), Appendix AA, p. 443. See also pp. 126-127.

#28. U.S.-British Negotiations and Second Hay-Pauncefote Treaty of November 18, 1901*

British Foreign Secretary

"In the despatch which I addressed to Lord Pauncefote on the 22nd February last, and which was communicated to Mr. Hay on the 11th March, I explained the reasons for which His Majesty's Government were unable to accept the amendments introduced by the Senate of the United States into the convention, signed at Washington in February 1900, relative to the construction of an interoceanic canal.

Lord Lansdowne's

memorandum, Aug. 3, 1901.

"The amendments were three in number, namely: . .

"2. The objections entertained by His Majesty's Government may be briefly stated as follows:

"(1.) The Clayton-Bulwer convention being an international compact of unquestionable validity could not be abrogated or modified save with the consent of both parties to the contract. No attempt had, however, been made to ascertain the views of Her late Majesty's Government. The convention dealt with several matters for which no provision had been made in the convention of February, 1900, and if the former were wholly abrogated both powers would, except in the vicinity of the canal, recover entire freedom of action in Central America, a change which might be of substantial importance.

“(2.) The reservation to the United States of the right to take any measures which it might find necessary to secure by its own forces the defence of the United States appeared to His Majesty's Government to involve a distinct departure from the principle of neutralization which until then had found acceptance with both Governments, and which both were, under the convention of 1900, bound to uphold. Moreover, if the amendment were added, the obligations to respect the neutrality of the canal in all circumstances would, so far as Great Britain was concerned, remain in force; the obligation of the United States, on the other hand, would be essentially modified. The result would be a one-sided arrangement, under which Great Britain would be debarred from any warlike action in or around the canal, while the United States would be able to resort to such action even in time of peace to whatever extent they might deem necessary to secure their own safety.

"(3.) The omission of the Article inviting the adherence of other powers placed this country in a position of marked disadvantage compared with other powers; while the United States would have a _treaty right to interfere with the canal in time of war, or apprehended

Moore, A Digest of International Law (1906), v. 3, pp. 212–222. See also U.S. Senate, Canal Treaties (1914) cited above, pp. 20-55.

war, and while other powers could with a clear conscience disregard any of the restrictions imposed by the convention of 1900, Great Britain alone would be absolutely precluded from resorting to any such action or from taking measures to secure her interests in and near the canal.

"For these reasons His Majesty's Government preferred, as matters stood, to retain unmodified the provisions of the Clayton-Bulwer convention. They had, however, throughout the negotiations given evidence of their earnest desire to meet the views of the United States, and would sincerely regret a failure to come to an amicable understanding in regard to this important subject.

"3. Mr. Hay, rightly apprehending that His Majesty's Government did not intend to preclude all further attempt at negotiation, has endeavoured to find means by which to reconcile such divergencies of view as exist between the two Governments, and has communicated a further draft of a treaty for the consideration of His Majesty's Government.

"Following the order of the Senate amendments, the convention now proposed—

"(1.) Provides by a separate Article that the Clayton-Bulwer convention shall be superseded.

"(2.) The paragraph inserted by the Senate after section 5 of Article II. is omitted.

"(3.) The Article inviting other powers to adhere is omitted.

"There are three other points to which attention must be directed:"(a.) The words 'in time of war as in time of peace' are omitted in Rule 1.

"(b.) The draft contains no stipulation against the acquisition of sovereignty over the isthmus or over the strip of territory through which the canal is intended to pass. There was no stipulation of this kind in the Hay-Pauncefote convention; but, by the surviving portion of Article I. of the Clayton-Bulwer convention, the two Governments agreed that neither would ever 'occupy, or fortify, or colonize, or assume, or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America,' nor attain any of the foregoing objects by protection offered to, or alliance with, any State or people of Central America.

"(c.) While the amendment reserving to the United States the right of providing for the defence of the canal is no longer pressed for, the first portion of Rule 7, providing that 'no fortifications shall be erected commanding the canal or the waters adjacent,' has been omitted. The latter portion of the Rule has been incorporated in Rule 2 of the new draft, and makes provision for military police to protect the canal against lawlessness and disorder.

"4. I fully recognize the friendly spirit which has prompted Mr. Hay in making further proposals for the settlement of the question, and