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The Right to Fortify the Panama Canal1

Published online by Cambridge University Press:  04 May 2017

Eugene Wambaugh
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Extract

As a canal is part of the territory of the country through which it passes, the general principle of sovereignty gives to that country, and to that country alone, the right of fortification. This general principle is capable of modification by treaty. Thus, as the Suez Canal is wholly in Egypt, a right of fortification resided with Egypt, or with its suzerain, Turkey; and, in order to destroy the right, there had to be express provisions in the Constantinople Convention of 1888 — “ respecting the free navigation of the Suez Canal ” — to which Turkey was a party. In that treaty as to Suez, there was ample recognition of the prima facie right and duty of the local country to protect the canal. Similarly, the right to fortify the Panama Canal would still reside with the Republic of Panama, and not with the United States, if the convention of 1903 with Panama did not grant to the United States control of the Canal Zone, with all the rights which the United States would possess if it were the sovereign, and “ to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights.” The treaty specifically adds that “ the United States shall have the right * * * to establish fortifications.”

Type
Research Article
Information
American Journal of International Law , Volume 5 , Issue 3 , July 1911 , pp. 615 - 619
Copyright
Copyright © American Society of International Law 1911

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Footnotes

1

This is a revision, annotated, of an editorial article in the Boston Herald of February 20, 1911.

References

2 Thus it is said in Bonfils, Droit International Public (ed. Fauchille, 1908), No. 511: “Des détroits naturels rapprochons les détroits artificiels, les canaux maritimes, créés par l’homme pour facliter la navigation, favoriser les communications et l’extension des relations commerciales, accroître célérité des transports, etc., quelquefois dans un but stratégique. Ces canaux, comme ceux de Suez, de Corinthe et de Panama, sont habituellement creusés à travers le territoire d’un seul Etat, l’Egypte, la Grèce la Colombie ou la République de Panama. Les contrats de concession, consentis par le pouvoir! souverain, fixent les droits et les devoirs des concessionaires. Mais, sans aucun doute possible, ces canaux font partie du domaine public ou régalien de l’Etat concédant, sont pleinement soumis et subordonnés ä ses droits de propriété, de souverainté et de juridiction.”

On maritime canals there are many citations in Bonfils, op. cit., liv. I, ch. II, sect. IV; Oppenheim’s International Law, Vol. I, p. 233;’ and Westlake’s International Law, Vol. I, p. 321.

3 Printed in Supplement, 3: 123.

4 The principal stipulations recognizing and restricting the power of Turkey are found in Articles I, IV, VIII, IX, XI, XII, and XIII.

5 Printed in Supplement, 3:130. The passages important for the present purpose are in Articles II, III, and XXIII.

6 Printed in Supplement, 3:127.

7 Printed in Supplement, 3:110. The pertinent passages are in Articles I, III, V, VI, and VIII.

8 Printed in Moore’s Digest of International Law, Vol. Ill, p. 210. The more important passages are in Articles I and II (2, 5, and 7).

9 Each of the two Hay-Pauncefote treaties names both the Clayton-Bulwer Treaty of 1850 and the Constantinople Convention of 1888, and contains passages taken verbatim from the latter.

It is noticeable that Lord Pauncefote, besides negotiating the two Hay-Pauncefote treaties, was prominent in the negotiations of 1885 preliminary to the Constantinople Convention of 1888. See Moore’s Digest of International Law, Vol. III, p. 263.

10 Moreover, Great Britain had terrtorial rights and claims in the neighborhood of the proposed Nicaragua canal; and hence there were additional reasons why both Great Britain and the United States would view fortifications with interest.

11 It would be impossible to contend that fortification is prohibited by those passages of the Hay-Pauncefote Treaty of 1901 wherein the United States promises that there shall be no impairment of the general principle of neutralization. The meaning of neutralization is not always clear; but fortunately the meaning of the word in this place is carefully defined, for the treaty says 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, signed the 29th of October, 1881, for the free navigation of the Suez Canal,” and then gives various provisions, omitting the Constantinople Convention’s prohibition of fortifications. There is, to be sure, a provision that “The canal shall never be blockaded, nor shall any right of war be exercised, nor any act of hostility committed within it.” Yet the erecting of fortifications is not an act of hostility nor the exercise of a right of war. Fortifications are, or at least may be, simply a mode of protecting the canal for the benefit of all countries in interest. It must not be forgotten that by the treaty of 1901 the United States has the exclusive burden of such protection.

On neutralization, see Holland’s Studies in International Law, p. 270; Moore’s Digest of International Law, Vol. I, p. 26, Vol. II, p. 19, Vol. III, p. 267; Bonfils, , Droit International Public (ed. Fauchille, , 1908), Nos. 355, 368, 512Google Scholar; H. S. Knapp, “ The Real Status of the Panama Canal as regards Neutralization,” in the American Journal of International Law, 4=314.

12 Printed in Senate Document No. 746, 61st Cong., 3d Sesa. ; reprinted in Supplement to this number of the Journal, p. 199.

13 Printed in Moore’s Digest of International Law, Vol. III, p. 212; Senate Document No. 746, 61st Cong., 3d Seas.; and reprinted in Supplement to this number of the Journal, p. 209.