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Edward Grey by a strange coincidence makes the same misstatement in his protest.
Read the Hay-Pauncefote Treaty. It abrogates the Clayton-Bulwer Convention, preserving only
the general principle of neutrality, and this neutrality is to be secured by elaborate and stated
rules based upon rules adopted thirty-eight years after the Clayton-Bulwer Treaty, and even these Suez rules of 1888 were radically changed that the United States might fortify the Canal and might have and enjoy all the rights incident to construction, as well as the exclusive right of providing for the regulation and management of the Canal.
England in 1882 seized Egypt and when secure in possession in 1888, in compliance with Great Britain's proposition for a national conference of the Powers, a treaty of seventeen articles was drawn up between the following: Great Britain, Austro-Hungary, France, Germany, Holland. Italy, Spain, Russia and Turkey, we find Great Britain became a party, with the reservation that the terms of such treaty should not be brought into operation in so far as they would not be compatible with the transitory and exceptional condition in which Egypt was put for the time being in consequence of her occupation by British forces, and in so far as they might fetter the liberty of action of the British Government during such occupation (See Martens, 2d ser. Page 557).
Not only has there been a desire to keep alive the abrogated Clayton-Bulwer Treaty, but since the Treaty of Constantinople was drawn upon in shaping the rules of neutrality there is an attempt to read into rules adopted by us in Article III for securing neutrality the various obligations of the Suez rules whether found in our rules or not. In revising the rules in order to adapt them to the intentions of the negotiators every feature not applying to the neutrality which they engaged to offer was stricken out. Thus from Article I was taken out: “The
“ Canal shall always be open in time of peace as in time of war regardless of flag.” The rules do not guarantee at all time and for all powers the free use of the Canal, nor forbid the keeping of men of war in or near the Canal, nor provide that the Canal must remain open in time of war. In fact the changes made from the Suez Canal rules clearly put the United States in a class apart in all such respects.
Since the rules as adopted are designed to embody the conditions under which we agree to uphold the neutrality of the Canal, let us seek the definitions of neutrality as given in Dr. Oppenheim's International Law. He says:
Neutrality may be defined as the attitude of impartiality toward belligerents, adopted by third states and recognized by belligerents, such attitude creating rights and duties between the impartial states and the belligerents.
No one but ourselves is permitted to maintain the neutrality of the Canal; we do not agree to be neutral toward an enemy, hence we hold the Canal neutral as to other powers. Again quoting from Dr. Oppenheim:
Since neutrality is an attitude of impartiality it excludes such assistance and succor to one of the belligerents as is detrimental to the other, and further such injuries to one as benefit to the other.
Reading Rule 1 of Article III covers such contingencies of impartial treatment in that we treat the vessels of commerce and of war of all nations alike not simply as regards charges and conditions of traffic but in all other ways in which we might aid or succor one or injure the other.
How closely we follow in our rules the Oppenheim doctrines is shown by again quoting him:
Neutrals must prevent belligerents from making use of their neutral territory and of their resources for military and naval purposes during the war.
A hurried résumé of the rules shows that vessels of war of a belligerent must not embark or disembark troops, munitions of war, or warlike materials, that the Canal must never be blockaded, that vessels of war of a belligerent shall not remain within three miles of either end, and that a vessel of war of a belligerent shall not depart within 24 hours from the departure of a vessel of
In fact it will be found that every contingency connected with belligerent operations is covered by our rules but that having adopted such rules to preserve the neutrality of the Canal they are not capable of being construed nor stretched to cover conditions having to do with ordinary commerce unaffected by belligerent operations.
We have the support of Dr. Oppenheim in this; following him further in defining and explaining neutrality we find:
Neutrality is a condition during a condition of war only.
Rights and duties deriving from neutrality do not exist before the outbreak of war.
Hence in applying rules to conserve the neutrality of the Canal such rules if directly applying to accepted understanding of neutral obligations could not be extended to cover the ordinary conditions and far more extended existence of peaceful commerce except by specific provisions or by implication from the fact that no articles in the treaty granted further powers.
Now, Lord Lansdowne did attempt to make these rules apply to ordinary commerce when he suggested August 3d, 1901, an amendment that the neutrality rules should “govern all interoceanic communications across the Isthmus."
This will be referred to later as it shows clearly a request for the adaptation of the rules to the peaceful commerce using the Canal and the studied refusal of the United States to grant such request.
The action of the Senate is very enlightening upon this point as it struck out the expression “in time of war as in time of peace," but retained v the linking together of vessels of war and peace, so that rules applying to one must apply to the other.
But the changes from the rule prove even more.
There is an idea prevalent that the rules for neutrality are not applicable in their entirety to neutral obligations, and that Rule 1 is inconsistent unless applied to peaceful commerce. Let us examine them as briefly as possible.
The intention is to make sure that we shall not play favorites in time of war by extending any special privileges or treatment to one belligerent as against another, either by hindering or delaying his vessels of war or by interfering with his vessels of commerce. Hostile operations might be hampered, even by unjust or inequitable charges exacted in such a way that under particular circumstances such charges might bear more heavily on one belligerent than another. So we agree not to discriminate as between nations in respect of the conditions or charges of traffic or otherwise—not simply tolls but any rules affecting passage through the Canal in the interest of one belligerent as against another. In fact the British interpretation would prevent us at any time favoring even vessels belonging to our Government in the way of docking facilities, coaling arrangements, use of repair shops, signal stations,