XII. THE NEUTRALIZATION FEATURES OF THE HAY-PAUNCEFOTE

TREATY.

By JOHN H. LATANÉ, Ph. D.,

Professor of History in Washington and

Lee University.

H. Doc. 461, pt 1-19

289

THE NEUTRALIZATION FEATURES OF THE HAY-PAUNCEFOTE

TREATY.

By JOHN H. LATANÉ, Ph. D.

Five years ago no one could have foreseen that the course of world politics was soon to draw England into such close relations with the United States that she could gracefully surrender the rights she had so insistently adhered to in all previous discussions of the canal question and concede fully and frankly our main contention. Yet such is the case. The Hay-Pauncefote treaty can be regarded in no other light than that of a friendly concession on the part of England of rights which she indisputably held under the Clayton-Bulwer convention. But, while so far as accomplishing the immediate object is concerned, the Hay-Pauncefote treaty is a triumph of diplomacy, it can scarcely be regarded as a triumph of the principle of international law which it professes to embody, or as a permanent adjustment of the canal problem. The treaty professes to preserve "the general principle of neutralization" established in Article VIII of the Clayton-Bulwer treaty, but its provisions ignore some of the essential elements of neutralization as that term is generally defined.

The term "neutralization" is comparatively new and its exact significance in international law is not readily determined. While the principle was recognized by the congress of Vienna, the word "neutralization" has until comparatively recently been avoided by diplomatists and publicists. Probably the earliest definition of the term by a writer of recognized merit is given by Holland in an article on "The international position of the Suez Canal" in the Fortnightly Review for July, 1883. He says:

"Neutrality" is always the correlative of "belligerency." A state is neutral which chooses to take no part in a war, and persons and property are called neutral which belong to a state occupying this position. The

term has in recent times received a larger application. A condition of neutrality, or one resembling it, has been created, as it were, artificially, and the process has been called "neutralization."

Further in the same article he says:

States have been permanently neutralized by convention. Not only is it preordained that such states are to abstain from taking part in a war into which their neighbors may enter, but it is also prearranged that such states are not to become principals in a war. By way of compensation for this restriction on their freedom of action, their immunity from attack is guaranteed by their neighbors, for whose collective interests such an arrangement is perceived to be on the whole expedient.

Lawrence, in his volume of Essays on Some Disputed Questions in Modern International Law, published in 1884, says:

In ordinary neutrality there are two elements-the element of abstention from acts of war and the element of freedom to abstain or not to abstain at pleasure. Now, if we take away the latter we get neutralization.

In these definitions we have the real point of the distinction. Ordinary neutrality is purely voluntary on the part of the state exercising the same, and may be terminated at any time, while neutralization imposes a more or less permanent status of obligatory or conventional neutrality, not terminable by volition of the state which accepts it or upon which it is imposed, which state thereby accepts a limitation to that extent upon its sovereign freedom of action.

In this sense Switzerland, which had been forced by Napoleon from her historic policy of political isolation and drawn into the turmoil of European war, was declared a neutral state by the congress of Vienna and placed under the collective guaranty of the powers. The same principle was extended to Belgium in 1831, and to the Grand Duchy of Luxemburg in 1867. The treaty by which Luxemburg was neutralized provided expressly for the demolition of the fortress of the city of Luxemburg. The same status was imposed upon certain of the Ionian Islands, Corfu and Paxo, when they were annexed to Greece in 1864. The treaty declares that—

as a necessary consequence of the neutrality which the Ionian Isles are thus to enjoy, the fortifications constructed in the Isle of Corfu and its immediate dependencies, having no longer any object, shall be demolished.

At the Berlin conference of 1884-85, when the Congo Free State was established, Mr. Kasson, the delegate of the United

States, proposed that the principle of neutralization be extended to the basin of the Congo. As the greater part of this territory was held in protectorate or ill-defined sovereignty by the powers forming the conference, they were not willing to limit their freedom of action to the extent proposed by Mr. Kasson, but they agreed that in the event of war, on any question not connected with the Congo territory, the signatory powers would use all their influence to secure from the belligerents declarations neutralizing for the time being their African interests. The Geneva convention of 1864 extended the principle of neutralization to persons and things, exempting from attack or capture surgeons, nurses, ambulances, and field hospitals.

From a study of these familiar cases it will be seen that neutralization implies: (1) A formal act or agreement; it is a matter of convention constituting an obligation, not a mere declaration revocable at will. (2) It implies a sufficiently large number of parties to the act to make the guaranty effective. (3) It implies the absence of fortifications. The mere existence of fortifications would impeach the good faith of the parties to the agreement. (4) It implies certain limitations of sovereignty over the territory or thing neutralized. (5) It implies a more or less permanent condition. In this it differs from ordinary treaty stipulations terminated by war between the contracting parties. A treaty establishing neutralization is brought into full operation by war.

When we come to extend the same principle to waterways, however, we find the conditions to be altogether different. The first and most fundamental difference is that states have acquired, by international usage and prescription, rights and interests in the territorial waters of other states which they have no claim to exercise in respect to land. Secondly, armies and implements of war are absolutely excluded from the territory of neutralized states, while neutralized waterways are by design open to the innocent passage of war ships not only in time of peace, but also in time of war. Thirdly, the warfare of the future will in all probability be confined more and more to the sea, thus enhancing the strategical value of waterways and canals which are adjuncts to the high seas, as well as increasing the temptation to appropriate them for national purposes.