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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 of the ClaytonBulwer Convention, which convention is hereby superseded, adopt, as the basis of such neutralization, the following rules, substantially as embodied in the convention between Great Britain and certain other Powers,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.
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. Dọc. 85, 57 Cong. 1 sess. 7.)
“In the despatch which I addressed to Lord Pauncefote on the
22nd February last, and which was communicated to Negotiation to Mr. Hay on the 11th March, I explained the reasons amendments;
for which His Majesty's Government were unable to Lord Lansdowne's memorandum,
accept the amendments introduced by the Senate of Aug. 3, 1901. the United States into the convention, signed at
Washington in February 1900, relative to the construction of an interoceanic canal.
“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 untilthen 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 canalin time of war, or apprehended 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.
“(1.) 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 while in no way abandoning the position which IIis Majesty's Government assumed in rejecting the Senate amendments, or admitting that the despatch of the 22nd of February was other than a well-founded, moderate, and reasonable statement of the British case, I have examined the draft treaty with every wish to arrive at a conclusion which shall facilitate the construction of an interoceanic canal by the United States, without involving on the part of His Majesty's Government any departure from the principles for which they have throughout contended.
“5. In form the new draft differs from the convention of 1900, under which the Iligh Contracting Parties, after agreeing that the canal might be constructed by the United States, undertook to adopt certain Rules as the basis upon which the canal was to be neutralized. 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 henceforward 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.
“6. The proposal to abrogate the Clayton-Bulwer convention is not, I think, inadmissible if it can be shown that sufficient provision is made in the new treaty for such portions of the convention as ought, in the interests of this country, to remain in force. This aspect of the case must be considered in connection with the provisions of Article I. of the Clayton-Bulwer convention which have already been quoted, and Article VIII. referred to in the preamble of the new treaty.
“Thus, in view of the permanent character of the treaty to be concluded and of the general principle' reaffirmed thereby as a perpetual obligation, the High Contracting Parties should agree that no change of sovereignty or other change of circumstances in the territory through which the canal is intended to pass shall affect such 'general principle' or release the High Contracting Parties, or either of them, from their obligations under the treaty, and that the Rules adopted as the basis of neutralization shall govern, so far as possible, all interoceanic communications across the isthmus.
“I would therefore propose an additional Article in the following terms, on the acceptance of which Ilis Majesty's Government would probably be prepared to withdraw their objections to the formal abrogation of the Clayton-Bulwer convention :
“In view of the permanent character of this treaty, whereby the general principle established by Article VIII. of the Clayton-Bulwer convention is reaffirmed, the High Contracting Parties hereby declare and agree that the Rules laid down in the last preceding Article shall, so far as they may be applicable, govern all interoceanic communications across the isthmus which connects North and South America, and that no change of territorial sovereignty, or other change of circumstances, shall affect such general principle or the obligations of the High Contracting Parties under the present treaty.' [This article is referred to as III. A, in the subsequent discussion.]
“7. The various points connected with the defence of the canal may conveniently be considered together. In the present draft the Senate amendment has been dropped, which left the United States at liberty to apply such measures as might be found 'necessary to take for securing by its own forces the defence of the United States. On the other hand, the words 'in time of war as in time of peace' are omitted from Rule 1, and there is no stipulation, as originally in Rule 7, prohibiting the erection of fortifications commanding the canal or the waters adjacent.
“I do not fail to observe the important difference between the question as now presented to us and the position which was created by the amendment adopted in the Senate.
“In my despatch I pointed out the dangerous ambiguity of an instrument of which one clause permitted the adoption of defensive measures, while another prohibited the erection of fortifications. It is most important that no doubt should exist as to the intention of the Contracting Parties. As to this, I understand that by the omission of all reference to the matter of defence the United States' Government desire to reserve the power of taking measures to protect the canal, at any time when the United States may be at war, from destruction or damage at the hands of an enemy or enemies. On the other hand, I conclude that, with the above exception, there is no intention to derogate from the principles of neutrality laid down by the Rules. As to the first of these propositions, I am not prepared to deny that contingencies may arise when not only from a national point of view, but on behalf of the commercial interests of the whole world, it might be of supreme importance to the United States that they should be free to adopt measures for the defence of the canal at a moment when they were themselves engaged in hostilities.
“It is also to be borne in mind that, owing to the omission of the words under which this country became jointly bound to defend the neutrality of the canal, and the abrogation of the Clayton-Bulwer treaty, the obligations of Great Britain would be materially diminished.
“This is a most important consideration. In my despatch of the 22nd February, I dwelt upon the strong objection entertained by His Majesty's Government to any agreement under which, while the United States would have a treaty right to interfere with the canal in time of war, or apprehended war, Great Britain alone, in spite of her vast possessions on the American continent, and the extent of her interests in the East, would be absolutely precluded from resorting to any such action, or from taking measures to secure her interests in and near the canal. The same exception could not be taken to an arrangement under which, supposing that the United States, as the power owning the canal and responsible for the maintenance of its neutrality,