The Panama Canal Conflict between Great Britain and the United States of America | Page 6

directly provided for by the Hay-Pauncefote Treaty--in
contradistinction to Article XXIII of the Hay-Varilla Treaty--there is no
doubt that, since, according to Article II of the Hay-Pauncefote Treaty,
the United States shall have and enjoy all the rights incident to the
construction of the Canal as well as the exclusive right of providing for
the regulation and management of the Canal there is thereby indirectly
recognised the power of the United States to take all such measures as
might become necessary for the defence of the Canal against a
threatening attack. Apart from this case, the United States, even if she
herself were a belligerent, has no more rights in the use of the Canal
than her opponent or a neutral Power; on the contrary, she is as much
bound as these Powers to submit to the rules of Article III, Nos. 2-6, of
the Hay-Pauncefote Treaty.

IV.
However this may be, the question as to whether the stipulation of
Article III, No. 1, of the Hay-Pauncefote Treaty that vessels of all
nations shall be treated on the basis of entire equality is meant to apply
to vessels of all nations without exception, or only to the vessels of
foreign nations and not to those of the United States, can only be

decided by an interpretation of Article III which takes the whole of the
Hay-Pauncefote Treaty as well as the Clayton-Bulwer Treaty into
consideration.
(1) There is no doubt that according to the Clayton-Bulwer Treaty the
future Canal was to be open on like terms to the citizens of all nations
including those of the United States, for Article VIII expressly
stipulates "that the same canals or railways, being open to the subjects
and citizens of Great Britain and the United States on equal terms, shall
also be open on like terms to the subjects and citizens of every other
State which...."
(2) The Clayton-Bulwer Treaty has indeed been superseded by the
Hay-Pauncefote Treaty, but it is of importance to notice the two facts,
expressed in the preamble of the latter:--(a) that the only motive for the
substitution of the latter for the former treaty was to remove any
objection which might arise under the Clayton-Bulwer Treaty to the
construction of the Canal under the auspices of the Government of the
United States; (b) that it was agreed that the general principle of
neutralisation as established by Article VIII of the Clayton-Bulwer
Treaty should not be considered to be impaired by the new treaty. Now
the equal treatment of American, British, and any other nation's vessels
which use the Canal is part and parcel of the general principle of
neutralisation as established by Article VIII of the Clayton-Bulwer
Treaty, and such equal treatment must, therefore, be considered not to
have been impaired by Article III of the Hay-Pauncefote Treaty.
(3) Article III of the Hay-Pauncefote Treaty stipulates--as a
consequence of the fact, expressed in the preamble of the Treaty, that
the general principle of neutralisation of the Canal as established by
Article VIII of the Clayton-Bulwer Treaty shall not be impaired by the
Hay-Pauncefote Treaty--that the United States adopts, as the basis of
the neutralisation of the Canal, six rules substantially as embodied in
the Suez Canal Treaty of Constantinople of 1888. Now although the
Suez Canal Treaty nowhere directly lays down a rule which is identical
with the rule of Article III, No. 1, of the Hay-Pauncefote Treaty, it
nevertheless insists upon equal treatment of the vessels of all nations by

stating in Article XII:--"The high contracting parties, in application of
the principle of equality concerning the free use of the canal, a
principle which forms one of the bases of the present treaty, agree
that...." That this principle of equality of all nations concerning the free
use of the Suez Canal means equality of vessels of all nations with the
exception of the vessels of Egypt or even of Turkey, has never been
contended; such a contention would, I am sure, have been objected to
by the parties to the Suez Canal Treaty. For this reason the term "all
nations" in the Hay-Pauncefote Treaty can likewise only mean all
nations, including the United States.
(4) The literal meaning of the words "all nations" leads to the same
conclusion. If something is stipulated with regard to "all" nations, every
nation is meant without exception. If an exception had been
contemplated, the words "all nations" could not have been used, and if
all foreign nations only were contemplated, the words "all foreign
nations" would have been made use of.
(5) There is also an argument from Article IV of the Hay-Pauncefote
Treaty which states that no change of territorial sovereignty or of the
international relations of the country or countries traversed by the
Canal should affect the general principle of