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Friday, April 25, 1913, 2:30 o'clock p.m.
The meeting was called to order at 2:30 o'clock p.m., with Secretary Scott in the chair.
The CHAIRMAN. Ladies and gentlemen: We were unfortunately unable to finish the discussion of the question "Does the expression 'all nations' in Article 3 of the Hay-Pauncefote Treaty include the United States?" At the conclusion of the next paper dealing with this matter, the question will be open for discussion, and I know I express the desire of the Society at large that there should be an exchange of views, because there could be no doubt whatever that where the views presented have been so inconsistent, there must be some members present who are impressed by this inconsistency and who can perhaps contribute to the elucidation of the matter.
It gives me very great pleasure to present to you a gentleman who is Professor of International Law in the Law School of Harvard University, and who will give us the result of his consideration of this all important topic-Professor Eugene Wambaugh, of the Harvard Law School.
DOES THE EXPRESSION "ALL NATIONS" IN ARTICLE 3 OF THE HAY-PAUNCEFOTE TREATY INCLUDE THE UNITED STATES?
ADDRESS OF MR. EUGENE WAMBAUGH, Professor in the Harvard Law School.
The Hay-Pauncefote Treaty is short. As usually printed, it covers only two pages. It contains fewer than nine hundred words, and more than three hundred of these are words of ceremony found at the beginning and the end of most treaties, these being instruments in which the form ranks almost as high as the substance. Thus it happens that in this short treaty only two-thirds, or almost exactly six hundred words, can be considered as indicating the rights and the duties which it creates or recognizes. In fact, the Hay-Pauncefote Treaty, though it bears to the Panama Canal a relation resembling that which is borne
to England by Magna Charta and that which is borne to the United States by the Constitution, is only from one-third to one-fourth as long as the treaty of 1903 with Panama and only about one-eighth as long as the Panama Canal Act of 1912. Hence, even without reading the Hay-Pauncefote Treaty one would be inclined to suspect that here is an instrument not always capable of indicating by its mere words. the rights which it was meant to establish and to clarify.
This impression will be confirmed by reading the treaty. May the United States fortify the canal? Will the treaty continue to give rights to Great Britain in case that country shall be at war with the United States? In case of war between Great Britain and the United States, will the rights of other nations be in any way affected? In case of war between the United States and some country other than Great Britain, may that other country continue to use the canal for its merchant vessels, its transports, and its battleships? These are only a few of the problems not expressly and fully solved, but arising necessarily and obviously. There are other questions less practical and more theoretical. Thus, as the treaty is merely between the United States and Great Britain, can it be said that other countries really have any rights at all under it, and, if so, are those rights to be enforced only through Great Britain; and do other countries have any duties, for example, the duty to refrain from blockading the canal, and, if so, do any countries other than the United States and Great Britain have a right to complain of the infringement of those duties? These are questions on which the treaty certainly leaves room for discussion. Further, the words of the treaty, even as to matters rather minutely covered, sometimes suggest difficult questions of which it must suffice to give only one, namely, whether, under the clause prohibiting warships of a belligerent to sail from either terminus within twenty-four hours after a warship of another belligerent has sailed therefrom. it will be possible for one warship of a belligerent, by going to and fro through the canal like a shuttle, turning on the course a marine league outside each terminus, to detain permanently at one terminus or the other the whole fleet of the other belligerent.
The mentioning of such questions as these is not meant to carry an intimation that the treaty is framed carelessly. No, the lesson is simply that as to such an intricate collection of topics a treaty of six hundred words, however carefully framed, cannot cover the whole. ground.
Yet these questions, and all others, must be answered. And how?
Obviously some lines in such a treaty, and also some spaces between the lines, must be understood to carry a caution that the reader must examine the whole context, the general intent, other similar treaties, the history of the negotiations, and general principles of law, and a still more emphatic caution that the reader must bear in mind the purpose of all treaties-the purpose that there shall be peace and not war, contentment and not irritation, equality and not inequality.
Some matters, however, are treated adequately. The "all nations" clause, it seems, is clear in itself; and, further, the lights thrown upon that clause by the context, by the documents referred to in the treaty, and by the general system of law prevailing in the two countries which are parties to it, are lights which are harmonious with one another and also harmonious with the natural verbal significance of the clause itself.
The "all nations" clause is as follows:
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.
On the very first reading almost anyone will say that this clause is clear and that there is no verbal ground for supposing the United States to be excluded from the hospitable phrase "all nations observing these rules." Apparently the only reason causing the meaning to be questioned is that in this clause there are at least three features: (1) the guaranty to "all nations" of the right to use the canal, (2) the guaranty to "all nations" of the right to be protected against inequality and injustice, and (3), argumentatively, the exaction from "all nations" of the duty to obtain no unjust discrimination. Probably no one would object to including the United States among the nations profiting by the guaranties of use and of equality; but there are those who believe that the United States is free from the argumentative duty of obtaining no discrimination. This argumentative duty flows so clearly from the holding of rights under the clause, that this duty cannot be avoided. without contending that the United States is not included among the nations profiting by the clause. Thus is happens that the peaceful phrase "all nations" becomes a battle ground.
There are at least five reasons-in addition to the words of the clause itself for believing that the United States is included among "all nations." These five reasons are independent of each other in the sense that any one of them is by itself enough to uphold this construction of the treaty.
First, the preamble says that the treaty is negotiated without impairing the general principle of neutralization established in Article VIII of the Clayton-Bulwer Treaty; and as that article expressly said that any isthmian canal should be "open to the citizens and subjects of the United States and Great Britain on equal terms," it is reasonable to believe that the "all nations" clause of the Hay-Pauncefote Treaty, which is the only clause giving any rights to Great Britain, continues to give to Great Britain, in the absence of clear language to the contrary, a right that the canal shall be "open to the citizens and subjects of the United States and Great Britain on equal terms"-a result which is not achieved unless the "all nations" clause is construed as including the United States. Will anything but extraordinary language cause any one to believe that a right to equal terms with the United States; a right theretofore existing, was in this treaty abdicated by Great Britain?
Secondly, in Article II, which is the only place in which rights are given to the United States specifically and not merely as one of "all nations," the rights are expressly said to be "subject to the provisions of the present Treaty"; and thus it is reasonable to believe that the United States is to be one of the "nations observing these Rules." Does the United States profess not to be subject to "all provisions," and do not the provisions include "these Rules"?
Thirdly, in Article III the United States expressly "adopts, as the basis of neutralization of such ship canal, the following Rules"; and thus again it appears reasonable to believe that this is to be one of the nations which in the very next paragraph are spoken of as "nations observing these Rules," especially as part of this very rule, namely, the part requiring the rates to be "just and equitable," is addressed distinctly and peculiarly to the United States. Does the United States not intend to be one of the "nations observing these Rules" adopted by itself?
Fourthly, the Hay-Pauncefote Treaty says in Article III that "the United States adopts, as the basis of the neutralization of such ship canal, the following Rules, substantially as embodied in the Convention of Constantinople for the free navigation of the Suez
Canal"; and as that convention in its first article says that the canal "shall always be free and open * * * to every vessel of commerce or of war, without distinction of flag," and in its twelfth article emphasizes "the principle of equality as regards the free use of the Canal, a principle which forms one of the bases of the present Treaty," it seems reasonable to believe that in the "all nations" clause, the first rule which the Hay-Pauncefote Treaty lays down in execution of its asserted purpose to adopt "Rules substantially as embodied in the Convention of Constantinople," there should be a liberal meaning assigned to the words "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," and also to believe that only very clear language could permit the United States to enjoy a privilege of inequality-a privilege conceded to no nation by the Constantinople Convention. Is equality a virtue or perhaps a policy—peculiar to the Old World and inappropriate to the New?
Fifthly, as in both Great Britain and the United States there is established by judicial decision-and also recognized and applied by well-known statutes-a doctrine requiring all pursuers of a public calling to serve all comers and to serve them without arbitrary discrimination, and as a canal, like a railway, is an instance of a public calling, it may well be contended that any treaty between these two countries is to be construed, if possible, in such a way as to recognize these duties, since the words of any treaty between these two countries are necessarily written in the atmosphere of their several—and in this instance concurrent-systems of local law, and that hence, in the absence of clear language to the contrary, the "all nations" clause, with its provision of "entire equality," is to be understood as including vessels of commerce and of war of the United States among those enjoying such rights, and as recognizing the rights of all vessels from other "nations observing these Rules" to be treated on the same basis as those of the United States. If the canal had been built, as the treaty permitted, not by the government but by individuals or by a corporation, the duty of treating all vessels, whether American or foreign, on the same basis would have been enforced by the United States for and against every nation, including itself; and it seems reasonable to believe that the equal rights and duties of Americans, British, and others were not affected by the adoption of the other alternative which the