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exceptions for which this Article provides, the Signatory Powers of the Declaration of London shall be notified thereof by the Imperial Ottoman Government.
'It is likewise understood that the provisions of the four Articles aforesaid shall in no case occasion any obstacle to the measures which the Imperial Ottoman Government may think it necessary to take in order to insure by its own forces the defence of its other possessions situated on the eastern coast of the Red Sea.' To make the territorial Power subject under all circumstances to Articles such as IV, which prohibits all operations of war in the Canal and the keeping of vessels of war in it, would evidently be to deprive it of the means of defending the Canal and Egyptian territory. Hence, for such purposes, it is allowed to carry on warlike operations in the Canal and to do other things which are forbidden generally in the Articles from which it is to this extent excepted. But these exceptions are restricted in the Treaty as much as possible, in order that its main object of keeping the Canal open may not be interfered with. The addition of the words by his own forces' in Article XI of the Commissioners' draft had been objected to by the British representatives at the Conference, and subsequently by Lord Salisbury, on the ground that they would prevent the Porte or the Khedive calling in any ally they chose to their assistance, which would be an undue limitation of sovereignty; but, on the Porte declaring that it had no objection to their inclusion, and understanding that if one of the Parties to the Treaty attacked the Canal, the others would be free to act against him in it (their obligations to one another having disappeared), Lord Salisbury withdrew his objection. The British Government had also objected to the words 'in the name of His Imperial Majesty' which were in Article XI of the Commissioners' draft.
68. Article XI. The measures which shall be taken in the cases provided for by Articles IX and X of the present Treaty shall not interfere with the free use of the Canal. In the same cases, the erection of permanent fortifications contrary to the provisions of Article VIII is prohibited.''
1 On the question of the right of closing the Canal see § 49 above,
The prohibition of permanent fortifications in the Canal was not, as has been previously remarked,' a subject of dispute between the French and British Governments, but it takes away from the territorial Power a chief means of defence and has been dropped in the case of the Panama Canal (cf. below, p. 58). It was limited, in the case of Suez, to the Canal itself.
69. Article XII. 'The High Contracting Parties, by application of the principle of equality as regards the free use of the Canal, a principle which forms one of the bases of the present Treaty, agree that none of them shall endeavour to obtain with respect to the Canal territorial or commercial advantages or privileges in any international arrangements which may be concluded. Moreover, the rights of Turkey as the territorial Power are reserved.'
Article XIII. With the exception of the obligations expressly provided by the clauses of the present Treaty, the sovereign rights of His Imperial Majesty the Sultan, and the rights and immunities of His Highness the Khedive, resulting from the Firmans, are in no way affected.'
Article XII is a declaration of disinterestedness. The reservation of the rights of the territorial Power in these two Articles was not necessary, but was formally inserted at its request. It was not thereby meant to reserve for Egypt or the Porte any right to differentiate in its own favour in respect of tolls. The exercise of any such right on its part would be contrary to Article I of the Convention and to established custom.
70. Article XIV. The High Contracting Parties agree that the engagements resulting from the present Treaty shall not be limited by the duration of the Acts of Concession of the Universal Suez Canal Company.'
This is the only Article in the Treaty which directly refers to the Charter of the Company. The Treaty would even without it have been regarded as unlimited in duration so long as the Canal is in existence.
71. Article XV. The stipulations of the present Treaty shali not interfere with the sanitary measures in force in Egypt.' The British Government did not think this Article
would be required, the banks of the Canal being left entirely subject to Egyptian law; but it was admitted since the necessity might arise for taking sanitary measures for the Canal conflicting with rules laid down by the Treaty.
72. Article XVI. 'The High Contracting Parties undertake to bring the present Treaty to the knowledge of the States which have not signed it, inviting them to accede to it.' 1
73. The ratifications of the Treaty were exchanged soon after it was concluded, but it remained in suspense for some time on account of a reservation made to it on the part of Great Britain to the effect that those provisions in the Treaty which might interfere with the free action of Great Britain during the occupation of Egypt, and which were incompatible with its position there, should be suspended. On this account the Treaty, though it was ratified by the Parties, seems to have been to a great extent inoperative, since the other Parties could not be expected to be bound by it unless it were also binding on Great Britain. But this suspended operation of the Treaty ceased in 1904, when Great Britain came to an Agreement with France in respect of Egypt, Morocco, and other subjects.
74. Article VI of the Agreement of 1904 provides that
In order to insure the free passage of the Suez Canal, His Britannic Majesty's Government declare that they adhere to the stipulations of the Treaty of October the 29th, 1888, and that they agree to their being put in force. The free passage of the Canal being thus guaranteed, the execution of the last sentence of paragraph 1 as well as of paragraph 2 of Article VIII of the Treaty will remain in abeyance.' The provisions of the Treaty referred to as still to remain in abeyance concern the supervision of it by the consular agents of the Powers in Egypt. These are that 'under any circumstances, they [the agents] shall meet once a year to take note of the due execution of the Treaty', and that these meetings shall take place under the presi
As to Accessories see § 46 above.
2 Cf. § 41 above.
3 Cf. Parliamentary Papers, France, No. 1, 1904 (Cd. 1952), Article VI, p. 10.
dency of a Special Commissioner nominated for that purpose by the Imperial Ottoman Government. A Commissioner of the Khedive may also take part in the meeting, and may preside over it in case of absence of the Ottoman Commissioner.'
75. As to the light in which the rules of the Convention are regarded by our Courts, some remarks of Lord Parker in the Südmark case1 are instructive, in which, giving the decision of the Judicial Committee, he says:
'Assuming, however, that the rule [that is, the rule that belligerent vessels of war may not stay more than twenty-four hours in the Canal] was broken, the question remains whether a Court of Prize can properly constitute itself the guardian of the Convention and invent the exact penalties for its non-observance, though no such penalties are imposed by the Convention itself. This question can only be answered in the negative. The jurisdiction of a Court of Prize does not embrace the whole region covered by international law.'
In other words, Prize Law is not concerned with the rules which were agreed to for regulating the use of the Canal; it is to the means provided for the purpose by the Convention itself that one should look for their enforcement.
1 L. R. (1917) A. C., p. 620.
THE PANAMA CANAL
76. The idea of making a ship canal through the narrow isthmus of Central America, in order to facilitate navigation between the Atlantic and Pacific, is a natural one. Since the first discovery of America it had been spoken of, and Philip II of Spain had a design of carrying it out; but it did not become really practicable till after the separation of the South American Colonies from the mother-country in the early part of the last century. The project was one in which the emancipated countries were primarily interested. Hence, not long after their independence was established, it was discussed at the Congress of American States at Panama, which met at the instance of Nicaragua in 1826 to consider American questions under the new conditions that had arisen. On this occasion the American Secretary of State, Mr. Clay, expressed himself as being favourably inclined to the proposal.
77. From this time onwards the subject was never lost sight of, though it was long before the undertaking could be accomplished.
78. The difficulties in the way of it were similar in their general character to those of the Suez Canal, but differed greatly in their special circumstances. Those of a material and economic character were perhaps greater than the obstacles which de Lesseps had to overcome in making the Suez Canal, while those arising from the jealousy of rival States, with which we are concerned in this Paper, proved a greater hindrance to the construction of the American Canal than to that of the Egyptian.
79. There was unanimous agreement from the first, as we found there was concerning the Suez Canal, that a trans-isthmian canal, by whatever route, must be appro