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ignored, but knowing that Sir Julian Pauncefote was most familiar with the rules, let us quote XII of the Suez Convention in full:
The High Contracting Parties by application of the principle of equality as regards the free use of the Canal, a principle which forms one of the bases of the present treaty, agree that none of them shall endeavor to obtain with respect to the Canal territorial or commercial advantages or privileges, which may be in any international arrangements which may be concluded. Moreover the rights of Turkey as the territorial Power are reserved.
Here was a precedent for the use of the principle of equality—instead we find used in the HayPauncefote Treaty principle of neutralization.
Why was the term “principle of neutralization” used? It was to place the United States in a class apart—the Canal is not neutralized in the ordinary sense of the term. The United States agrees to hold the Canal neutral as to belligerents in wars in which she is not concerned and reserves all the powers necessary to enforce such neutrality and assumes all the obligation.
Article IX of the Treaty of Vienna which provides for the neutrality of the free town of Cradicord says that “no armed force shall be introduced upon any pretense whatever."
In the Treaty of Paris, neutralizing the Black Sea, maintenance of armaments was prohibited. In neutralizing Luxemburg there was a provision
that the City of Luxemburg should no longer be treated as a federal fortress. Article III of the Treaty of London, November 14, 1863, neutralizing the Ionian Islands said: “The fortifications constructed in the Island of Carfu, having no longer any object, shall be demolished.” The Berlin Treaty of 1878, referring to the neutralization of the Danube said: "all the fortresses and fortifications existing on the course of the river shall be razed and no new ones erected."
Yet in neutralizing the Panama Canal the prohibition against fortifications is omitted by mutual consent.
In other words there is a distinct departure from the true neutrality of the Clayton-Bulwer Convention which covered a canal not designed for
warlike purposes. - But the Suez Canal conditions coming up in the
meantime found the nations of Europe having possessions in the East unwilling to concur in negotiating a treaty forbidding passage by the ships of a belligerent, so a more extended use of the term neutralization is used to cover the case of a nation in armed control agreeing to hold its canal neutral as to all other nations.
Under our limited form of Government the Constitutional warrant for constructing the Canal will be found in the exercise of the war power of the United States, the Canal being an addition to such war power.
So we are warranted in the conclusion that if the British contention is to stand we must revise that treaty as follows:
1. That Article III is not to be read in its entirety but if any rule after the first makes the British interpretation absurd all such sections must be suppressed.
2. That the preamble to Article III must be ignored as it specifically states that these rules are for securing the neutralization of the Canal.
3. That "neutralization" must not receive the definition given it in International Law or the language of diplomacy, as such definition limits its control under such rules to time of war.
4. That all the obligations of the Clayton-Bulwer Treaty must be carried over to the HayPauncefote Treaty, although the former is superseded by the latter.
5. That the negotiators when they substituted the principle o neutralization” for the "principle of equality" assumed that “neutralization" expressed “equality” more clearly than “equality” itself.
Then we must ignore
1. That the Clayton-Bulwer Treaty provided free passage for all vessels during peace and war, forbidding discrimination.
2. That the Convention of Constantinople did the same and forbade fortifications as well, and forbade any attempt to restrict the free use of the
Suez Canal, in peace or war; even Turkey if at war could commit no act of hostility within its waters.
3. That the only thing in common to the Clayton-Bulwer and Hay-Pauncefote pacts is the idea of neutralization.
4. That Great Britain was relieved of the great burden of the joint guarantee of neutrality and that we assumed all burdens of such guarantee as well as construction, defense, management and regulation.
5. That the rules of the Treaty of Constantinople were radically changed and only such parts as provided for neutralization were retained and all references to equal treatment dropped.
6. That from such rules were dropped all ideas of prohibition as to discrimination during time of peace.
THE NEGOTIATION OF THE HAY
On February 5, 1900, Mr. Hay, Secretary of State, and Lord Pauncefote, British Ambassador, signed at Washington a convention, the object 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 Article VIIT of that convention. This was communicated to the Senate by President McKinley on the same day.
The Senate gave its advice and consent to the Exchange of ratifications with certain radical amendments. The Treaty as sent to the Senate which we shall call No. 1 in referring to it was as follows:
The United States of America and Her Majesty the Queen of the United Kingdom of Great Britain and Ire