fortification question), I understand that by the omission of all reference to the matter of defence the United States Government desires 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 hand 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."1 The necessity for defence, founded on the right of selfpreservation, chimes in with the remarks quoted above, which are also applicable to the Suez Canal. When it is considered of how little value improvised works of defence would be, hastily constructed for the moment, full justification is given to the action of the United States in erecting permanent fortifications with ordnance of large calibre. Too much is involved to trust to flimsy works, armed and equipped with such guns as may be at hand, at such a distance from home resources. 74. Hay-Bunau-Varilla Treaty.-In Article II of the treaty with the new republic of Panama, commonly known as the Hay-Bunau-Varilla treaty, which has been already referred to, Panama grants, not cedes, to the United States in perpetuity, the use, occupation, and control of a zone of land under water for the construction, maintenance, operation, sanitation, and protection of said canal. There is also a further grant in perpetuity of any lands or waters outside of the zone which may be found necessary and convenient for the purposes just mentioned in the enterprise. 1 Moore's "Digest," vol. III, p. 215. Article XVIII states that "the canal when constructed and the entrances thereto shall be neutral in perpetuity and shall be opened upon the terms provided by Section I, Article III of, and in conformity with all the stipulations of, the treaty entered into by the governments of the United States and Great Britain, on November 18, 1901 (Hay-Pauncefote treaty).” Article XXIII reads: "If it should become necessary at any time to employ armed forces for the safety or protection of the canal or of the ships that make use of the same or the railways and auxiliary works, the United States shall have the right at all times and in its discretion to use its police and its land and naval forces or to establish fortifications for these purposes." Article XXV reads: "For the better performance of the engagements of this convention and to the end of the efficient protection of the canal and the preservation of its neutrality, the government of the republic of Panama will sell or lease to the United States lands adequate and necessary for naval or coaling stations on the Pacific coast and on the western Caribbean coast of the republic, at certain points to be agreed upon with the President of the United States."1 The two treaties which have just been given in part cover the external relations of the Panama Canal and provide for its free use in time of peace, and in war time by belligerents in general; it does not, however, include in these belligerents any state at war with the United States, as was done by the Suez Canal convention with respect to Turkey. It really puts the Panama Canal in the same status as a fortified port of a neutral state, so far as its use and the length of stay of belligerent vessels are concerned. Such ports can be used in common by all belligerent vessels, subject to restrictions as to length of stay and times of departure, and no acts of hostilities can be performed within its territorial limits when it is neutral; but the United States has the means of defence, when a belligerent, "Compilation of Treaties in Force, 1904," p. 609. against the enemy. Its fortifications can be used, if necessary, to prevent any violation of its status of neutrality. The canal is free and open by treaty to vessels of commerce and of war of all nations observing the specified rules; hence, for violation or non-observance of the rules referred to such vessels can be excluded from the canal by the agents of the United States. There is a conflict between provisions of the Hay-BunauVarilla treaty and the Hay-Pauncefote treaty, as well as some of the provisions of the treaty of 1846 between the United States and the republic of Colombia. As this latter conflict is a matter of present negotiation it is to be hoped that the questions under discussion will be settled satisfactorily to all countries. The principal conflict arises from the guarantee conveyed in the treaty of 1846 for the sovereignty of Colombia on the Isthmus of Panama, the question arising from the rental due to Colombia from the Panama Railway and the action of the United States in connection with the establishment of the republic of Panama. TOPICS AND REFERENCES 1. The Right of a State to Exclusive Jurisdiction over Its Own TerritoryHershey, "Essentials," 159, 160, 233-5. Oppenheim, 2d ed., vol. I, 229-237. Lawrence's "Principles," 4th ed., 139–147. 2. The Right to Hold and Acquire Property Hall, 6th ed., Atlay, 101-116. H. Taylor, 264-277. Scott's "Cases," 70-75. 3. Boundaries of States Halleck, vol. I, 4th ed., Baker, 182-5. Moore's "Digest," vol. I, 615-621. Wheaton's "Elements," 8th ed., Dana, 274. 4. State Servitudes Phillimore, "International Law," 3d ed., I, 388-393. Holland, "Jurisprudence," 10th ed., 214-221. Westlake, "International Law," I, 141-2. Wheaton, 8th ed., Dana, secs. 192, 194–6, 202. 5. Territorial Waters-The Marine League Wheaton, 8th ed., Dana, 255-272. H. Taylor, 293-9. Walker, "Manual," sec. 17. Vattel, I, secs. 287–290. 6. Straits Wheaton, 8th ed., Dana, 271-3. H. Taylor, 281-9. Snow's "Cases," 41-55. 7. Rivers Phillimore, I, secs. 155-171. Wheaton, 8th ed., Dana, 274-288. 8. Interoceanic Canals-Suez Canal— Cromer, "Modern Egypt," II, chap. XLVII, 382-7. Lawrence, "Essays," etc., 2d ed., Essay II, 41, etc. Penfield, "Present-Day Egypt," 184-217. 9. Panama Canal Johnson, "Four Centuries of Panama Canal," 1906. List of books and articles on "Interoceanic Canals and Railway Routes," published by Library of Congress, 1900. Hershey, "Essentials," 208-212. 10. Governing Treaties Compilation of United States Treaties in Force, etc., 1904. Law- CHAPTER VIII THE HIGH SEAS. IMMUNITIES OF FOREIGN VESSELS IN PORTS AND WATERS 75. What Is Meant by the High Seas.-By the term the high seas, in municipal and international law, is meant all that continuous body of salt water in the world which is navigable in its character and which lies outside of the territorial waters and maritime belts of the various countries. This great extent of salt water is represented by the five great oceans and the various bodies of water dependent upon and connected with them. The oceans, of course, represent the greater part of the open salt-water area of the world, the remainder of the high seas consisting of dependent bodies of water, like the Gulf of Mexico, the Caribbean Sea, the Mediterranean, the Black Sea, and others. These dependent seas have often still other dependent seas, like the Adriatic with respect to the Mediterranean, and so the subdivisions continue. Even the enclosure of waters by one or more states does not properly remove such waters from the area of the high seas, Hudson Bay, in British America, with its wide entrances, being a fair example of that nature.1 In connection with international law, which is the reigning law upon the high seas outside of the narrow sphere of the vessel, the sea bears a most important part, both in peace and war time. This is the case in war especially, not only with regard to the belligerents concerned therein but also with respect to the neutral powers and their vessels.2 1 Thomas W. Balch, A. J. I. L., vol. VII, no. 3. |