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The Canal Fortifications and the Treaty

Published online by Cambridge University Press:  04 May 2017

Crammond Kennedy
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Extract

Connected as it is with the progress of the present phenomenal movement for international peace, the question whether the Panama Canal should be permanently fortified as part of its construction and before it is opened to the commerce of the world, is of the highest importance; and for this reason the views and conclusions of the commissioners who considered the subject under authority of Congress in 1899–1901, when negotiations were in progress between the United States and Great Britain for a new agreement to take the place of the Clayton-Bulwer Treaty, are of the gravest public interest and are worthy of the most considerate attention. It was not until November, 1903, that the Isthmian Canal Zone came under “ the perpetual control ” of the United States by the treaty of the 18th of that month with the new-born Republic of Panama; but, for some years prior, the United States had been considering the acquisition of a strip of territory in the Isthmus, and the construction of a waterway between the two oceans, on its own responsibility, at its own cost, and under its own control. It was from this new point of view that the Canal Commission of 1899–1901, of which the late Admiral Walker was president, made its investigations and report; and it was to open the way to the accomplishment of this enterprise without a violation of the Clayton-Bulwer Treaty and with the consent of Great Britain, whose interests in the physical union of the Atlantic and Pacific were second only to those of the United States, that the negotiations then pending between the two governments had been commenced and were subsequently carried on until they resulted in the Hay-Pauncefote Treaty, which was signed on November 18, 1901, proclaimed February 22, 1902, and is now in force. It antedated by some months the passage of “ the Spooner bill,” which provided for the purchase of the rights and property of the New Panama Canal Company (De Lesseps’ successor in France) and for the acquisition of the necessary territorial rights from Colombia, or, failing that, from Nicaragua and Costa Rica.

Type
Research Article
Information
American Journal of International Law , Volume 5 , Issue 3 , July 1911 , pp. 620 - 638
Copyright
Copyright © American Society of International Law 1911

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References

1 30 Stats. 1150.

2 2 For the text of “the Spooner Act,” approved June 28, 1902, see 32 Stats. 481-484. Article IV of the Hay-Pauncefote Treaty of November 18, 1901, had provided as follows:

“ 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.” — Malloy’s Treaties and Conventions, etc., Vol. I, page 783 ; 32 Stats., Pt. 2, p. 1904.

3 Report of the Isthmian Canal Commission, 1899-1901, Senate Document No. 54, 57th Congress, 1st Session, pp. 252, 253.

4 The Hay-Pauncefote Treaty, now in force, as will appear later on, provides for thei innocent passage of the canal by war vessels of belligerents, under the rules prescribed in Article III, “substantially as embodied in the convention of Constantinople, signed the 28th October, 1888, for the free navigation of the Suez Canal.” Amendments to strike out these rules, or make their observance dependent on the will of the United States, were made and rejected in executive session before the treaty was ratified by the Senate.

5 Minority Report by Mr. Morgan from the Foreign Relations Committee, Senate Document No. 268, 56th Congress, 1st Session, p. 35.. It was mainly on account of this amendment that the treaty of February 5, 1900, was rejected by Great Britain. A similar amendment, as will be seen later on, was offered in executive session to the treaty now in force but was voted down by a large majority.

6 Richardson’s Presidents’ Messages, Vol. VIII, pp. 327, 328.

7 Minority Report by Mr. Morgan from the Foreign Relations Committee, Senate Document No. 268, 56th Congress, 1st Session, p. 34.

8 Treaties, Conventions, etc., Vol. I, p. 783; 32 Stats., Pt. 2, pp. 1903-1905.

9 Report by Mr. Davis from the Foreign Relations Committee, April 5, 1900, being Senate Document No. 268, 66th Congress, 1st Session, pp. 13, 14.

10 As will be seen later on, a motion was made in executive session, when these treaties were under consideration, to strike out this provision, but the proposed amendment in each case was voted down.

11 Problems of International Practice and Diplomacy with Special Reference to the Hague Conferences and Conventions and Other General International Agreements, by Sir Thomas Barclay, Member of the Institute of International Law, etc., etc., pp. 313-315.

12 Principles of International Law, by Lawrence, T. J., Member of the Institute of International Law, etc., etc., 4th ed., § 227, pp. 605, 606Google Scholar.

13 To say nothing of utterances that would be unworthy of notice if it were not for the military rank of their authors, and the false position in which they put the United States, even so high-minded and able a man aa Major-General W. H. Carter refers in his article on “ Relations of Treaties and Armament,” in The North American Review for June, to “ the altruistic motives of those who dream of the honor of nations,” — as if enlightened public opinion did not regard dishonor among nations as it regards dishonor among men.

“ This declaration of purpose [to control the canal in time of war as our safety and interests demand] coming from Lieut.-Gen. Wood, Chief of Staff, when read in the light of our solemn treaty obligations with Great Britain, contained in Article 3 of that treaty, which says that ‘The canal shall be free and open to the vessels of commerce and of war of all nations observing these rules’ — that is, the rules governing the neturalization prescribed m the treaty — discloses a national purpose in respect to our relations with the other nations of the world more in keeping with the diplomatic policies of nations during the Middle Ages than with the high standard of national honor which all nations now profess and endeavor to follow. — From a speech of the Hon. James A. Tawney, Congressional Record, March 2, 1911, p. 3990.

“ The opportunity is now, and for the first time, presented to the Congress to determine whether it will take a step which will tend to perpetuate the present tremendous armaments of the world, or whether it will initiate a movement which will tend to reduce the great armaments of the world and promote some other method than war for the settlement of dispates between nations. * * *

“ If this appropriation be made in the way proposed, we are forever committed to the policy of largely augmenting the naval and military forces of the United States, not from necessity to protect ourselves, but because of our lack of faith in all the peoples of the earth. Could I bring myself to believe, as some gentlemen here seem to believe, that the nations of the earth had descended to such depths of depravity as have been depicted, I should be unwilling to trust them in the slightest in dealings upon any question, however insignificant; but to assert in advance that the great nations of the earth would willingly enter into solemn obligations to keep the canal neutral, to protect it for the benefit of all the people of the world, with the express intention of violating such an agreement, is a slander upon the nations of the world that I am unwilling to utter or to join with others who do.” — From a speech of the Hon. John J. Fitzgerald, Congressional Record, February 25, 1911, p. 3614.

14 3 Moore’e Int. Law Dig., p. 212; Supplement to this number of the Journal, p. 209.

15 The authors of the most drastic of these amendments had a clearly defined and intelligent purpose, and they showed their sincerity and consistency by voting against the ratification of the treaty. There were 72 votes in the affirmative and those who voted in the negative were Messrs. Bacon, Blackburn, Culber-son, Mallory, Teller and Tillman. Mr. Bailey and Mr. Rawlins were each paired in the negative with two Senators in the affirmative.

16 Lord Lansdowne, referring to the projet of the treaty now in force, said: “In the new draft the United States intimate their readiness ‘to adopt’ somewhat similar Rules as the basis of the neutralization of the canal. It would appear to follow that the whole responsibility for upholding these Rules and thereby maintaining the neutrality of the canal, would henceforth be assumed by the Government of the United States. The change of form is an important one, but in view of the fact that the whole cost of the construction of the canal is to be borne by that Government, which is also to be charged with such measures as may be necessary to protect it against lawlessness, and disorder, His Majesty’s Government are not likely to object to it.” — 3 Moore’s Inter. Law Dig., 214.

In his memorable address at the banquet of the American Society for the Judicial Settlement of International Disputes, last December, the President said: “The fact that we fortify the canal will not prevent us from discharging all international obligations that we may have in respect to it, but it will enable us to defend ourselves in its possession against the act of every irresponsible force or nation. It will not prevent our maintaining its neutrality if that is wise and right.”

The treaty does not seem to have left any room for the President’s “if,” in regard to the neutralization of the canal, and, as provided in our treaty with Panama, we can establish fortifications hereafter if the necessity for such defenses should ever arise.

17 3 Moore’s Int. Law Dig., 215.

18 Moore’s International Law Digest, Vol. II, pp. 19-22. See also Studies in International Law, by Thomas Erskine Holland, D. C. L., etc., etc., pp. 272 et seq.

19 Reports of Senate Committee on Foreign Relations, 1789-1901, Vol. VIII, p. 657. See also Senate Document No. 268, 56th Congress, 1st session, p. 22.

20 Malloy’s Treaties, Conventions, etc., Vol. I, p. 783 Google Scholar; 32 Stats., Pt. 2, p. 1904.