Section 5 of the American Panama Canal Act of 1912, pp. 5-6--The

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THE PANAMA CANAL CONFLICT

BETWEEN GREAT BRITAIN AND

THE UNITED STATES OF AMERICA

CAMBRIDGE UNIVERSITY PRESS

London: FETTER LANE, E. C.

C. F. CLAY, Manager

Edinburgh: 100, PRINCES STREET

London: STEVENS AND SONS, Ltd.,

119 and 120, CHANCERY LANE

Berlin: A. ASHER AND CO.

Leipzig: F. A. BROCKHAUS

New York: G. P. PUTNAM'S SONS

Bombay and Calcutta: MACMILLAN AND CO., Ltd.

_All rights reserved_

THE PANAMA CANAL CONFLICT

BETWEEN GREAT BRITAIN AND

THE UNITED STATES OF AMERICA

A STUDY

BY

L. OPPENHEIM, M. A., LL. D.

Whewell Professor of International Law in the University of Cambridge

Honorary Member of the Royal Academy of Jurisprudence at Madrid Member

of the Institute of International Law

SECOND EDITION

Cambridge:

at the University Press

1913

Cambridge:

PRINTED BY JOHN CLAY, M. A.

AT THE UNIVERSITY PRESS

PREFACE TO THE SECOND EDITION

To my great surprise, the publishers inform me that the first edition

of my modest study on the Panama Canal conflict between Great Britain

and the United States is already out of print and that a second edition

is at once required. As this study had been written before the

diplomatic correspondence in the matter was available, the idea is

tempting now to re-write the essay taking into account the arguments

proffered in Sir Edward Grey's despatch to the British Ambassador at

Washington of November 14, 1912--see Parliamentary Paper Cd. 6451--and,

in answer thereto, in Mr Knox's despatch to the American Charge

d'Affaires in London of January 17, 1913--see Parliamentary Paper Cd.

6585. But apart from the fact that the immediate need of a second

edition does not permit me time to re-write the work, it seemed

advisable to reprint the study in its original form, correcting only

some misprints and leaving out the footnote on page 5. It had been

written _sine ira et studio_ and without further information than

that which could be gathered from the Clayton-Bulwer Treaty, the

Hay-Pauncefote Treaty, the Hay-Varilla Treaty, the Panama Canal Act,

and the Memorandum which President Taft left when signing that Act.

Hence, the reader is presented with a study which is absolutely

independent of the diplomatic correspondence, and he can exercise his

own judgment in comparing my arguments with those set forth _pro et

contra_ the British interpretation of the Hay-Pauncefote Treaty in

the despatches of Sir Edward Grey and Mr Knox.

L. O.

Cambridge,

_February 15, 1913_.

CONTENTS

I. Article III, No. 1 of the Hay-Pauncefote Treaty of 1901 and

Section 5 of the American Panama Canal Act of 1912, pp. 5-6--The

Memorandum of President Taft, pp. 7-9--The interpretation of Article

III of the Hay-Pauncefote Treaty preferred by the United States, pp.

9-11.

II. The claim of the United States that she has granted the use of

the Panama Canal under a conditional most-favoured-nation clause, pp.

11-14--The United States has never possessed the power of refusing to

grant the use of the Panama Canal to vessels of foreign nations on

terms of entire equality, p. 15--Such use is the condition under which

Great Britain consented to the substitution of the Hay-Pauncefote

Treaty for the Clayton-Bulwer Treaty, p. 16.

III. If the use of the Panama Canal by vessels of foreign nations

were derived from most-favoured-nation treatment, the United States

would not be bound to submit to the rules of Article III, Nos. 2-6, of

the Hay-Pauncefote Treaty, p. 17--The Panama Canal would then lose its

neutral character and would be in danger of eventually being made the

theatre of war, p. 18--But it is the intention of the Hay-Pauncefote

Treaty permanently to neutralise the Panama Canal, p. 18--The three

objects of the neutralisation of an Inter Oceanic Canal, pp. 19-20--Is

the United States, under the Hay-Pauncefote Treaty, subjected to more

onerous conditions than Turkey and Egypt are under the Suez Canal

Treaty?, pp. 20-22.

IV. Six reasons for the untenability of the American interpretation

of Article III, No. 1, of the Hay-Pauncefote Treaty, p. 23--The

stipulation of Article VIII of the Clayton-Bulwer Treaty, p. 23--The

motive for, and the condition of, the substitution of the Hay-Pauncefote

Treaty for the Clayton-Bulwer Treaty, p. 24--The rules of the Suez

Canal Treaty which serve as the basis of the neutralisation of the

Panama Canal, p. 25--Literal meaning of the words "all nations," p.

26--Importance of Article IV of the Hay-Pauncefote Treaty, p. 26--The

various contingencies contemplated by Article II of the same treaty, p.

27.

V. The American contention that the exemption of American coasting

trade vessels from the payment of canal tolls does not discriminate

against foreign vessels, p. 29--Every vessel shall bear a proportionate

part of the cost of the Panama Canal, p. 30--Meaning of the term

"coasting trade" as upheld by the United States, pp. 30-33--Coasting

trade vessels of the United States can trade with Mexican and South

American ports, p. 33--Any special favour to a particular nation

involves discrimination against other nations, p. 34.

VI. Is the United States prevented from refunding to her vessels the

tolls levied upon them for use in the Panama Canal?, pp. 34-35--Difference

of such refunding from exempting the vessels concerned from the payment

of tolls, p. 35.

VII. Prominent members of the Senate and many American newspapers

condemn the special privileges granted to American vessels by the

Panama Canal Act, p. 36--The defeated Bard Amendment of 1900, p. 37.

VIII. Two schools of thought concerning the relations between

International and Municipal Law, p. 38--The maxim that International

Law overrules Municipal Law, p. 39--The doctrine that International and

Municipal Law are two essentially different bodies of law, p. 39--The

two maxims of the practice of the American Courts, pp. 40-42--President

Taft's message to Congress suggesting a resolution which would have

empowered the American Courts to decide the question as to whether

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