_In Other Waters_
THE SUEZ CANAL
Sir,--Your correspondent "M.B." has done good service by calling
attention to the misleading nature of the often-repeated statement that
the Suez Canal has been "neutralised" by the Convention of 1888. Perhaps
you will allow me more explicitly to show why, and how far, this
statement is misleading.
In the first place, this Convention is inoperative. It is so in
consequence of the following reservation made by Lord Salisbury in the
course of the negotiations which resulted in the signature of the
Convention:--
"Les Délégués de la Grande-Bretagne ... pensent qu'il est de
leur devoir de formuler une réserve générale quant à
l'application de ces dispositions en tant qu'elles ne
seraient pas compatibles avec l'état transitoire et
exceptionnel où se trouve actuellement l'Egypte, et qu'elles
pourraient entraver la liberté d'action de leur Gouvernement
pendant la période de l'occupation de l'Egypte par les forces
de sa Majesté Britannique."
Being thus unaffected by the treaty, the canal retains those
characteristics which it possesses, under the common law of nations, as
a narrow strait, wholly within the territory of one Power and connecting
two open seas. The fact that the strait is artificial may, I think, be
dismissed from consideration, for reasons stated by me in the
_Fortnightly Review_ for July, 1883. The characteristics of such a
strait are unfortunately by no means well ascertained, but may perhaps
be summarised as follows. In time of peace, the territorial Power is
bound by modern usage to allow "innocent passage," under reasonable
conditions as to tolls and the like, not only to the merchant vessels,
but also, probably, to the ships of war, of all nations. In time of war,
the territorial Power, if belligerent, may of course carry on, and is
exposed to, hostilities in the strait as elsewhere, and the entrances to
the strait are liable to a blockade. Should the territorial Power be
neutral, the strait would be closed to hostilities, though it would
probably be open to the "innocent passage" of belligerent ships of war.
It may be worth while to enquire how far this state of things would be
affected by the Convention of 1888, were it to come into operation. The
_status_ of the canal in time of peace would be substantially untouched,
save by the prohibition to the territorial Power to fortify its banks.
Even with reference to time of war, several of the articles of the
Convention merely reaffirm well-understood rules applicable to all
neutral waters--e.g. that no hostilities may take place therein. The
innovations proposed by the Convention are mainly contained, as "M.B."
points out, in the first article, which deals with the position of the
canal when the territorial Power is belligerent. In such a case, subject
to certain exceptions, with a view to the defence of the country, the
ships of that Power are neither to attack nor to be attacked in the
canal, or within three miles of its ports of access, nor are the
entrances of the canal to be blockaded. This is "neutralisation" only in
a limited and vague sense of the term, the employment of which was
indeed carefully avoided not only in the Convention itself but also in
the diplomatic discussions which preceded it.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, October 4 (1898).
THE SUEZ CANAL
Sir,--Your correspondent "M.B.," if he will allow me to say so, supports
this morning a good case by a bad argument, which ought hardly to pass
without remark.
It is impossible to accept his suggestion that the article which he
quotes from the Treaty of Paris can be taken as containing "an
international official definition of neutralisation as applied to
waters." The article in question, after declaring the Black Sea to be
"neutralisée," no doubt goes on to explain the sense in which this
phrase is to be understood, by laying down that the waters and ports of
that sea are perpetually closed to the ships of war of all nations. It
is, however, well known that such a state of things as is described in
the latter part of the article is so far from being involved in the
definition of "neutralisation" as not even to be an ordinary
accompaniment of that process. Belgium is unquestionably "neutralised,"
but no one supposes that the appearance in its waters and ports of ships
of war is therefore prohibited. The fact is that the term "neutralisée"
was employed in the Treaty of Paris as a euphemism, intended to make
less unpalatable to Russia a restriction upon her sovereign rights which
she took the earliest opportunity of repudiating.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, October 6 (1898).
THE SUEZ CANAL
Sir,--Will you allow me to reply in the fewest possible words to the
questions very courteously addressed to me by Mr. Gibson Bowles in his
letter which appeared in _The Times_ of yesterday?
1. It is certainly my opinion, for what it is worth, that the full
operation of the Convention of 1888 is suspended by the reserves first
made on behalf of this country during the sittings of the Conference of
1885. These reserves were texually repeated by Lord Salisbury in his
despatch of October 21, 1887, enclosing the draft convention which,
three days later, was signed at Paris by the representatives of France
and Great Britain, the two Powers which, with the assent of the rest,
had been carrying on the resumed negotiations with reference to the
canal. Lord Salisbury's language was also carefully brought to the
notice of each of the other Powers concerned; in the course of the
somewhat protracted discussions which preceded the final signature of
the same convention at Constantinople on October 29, 1888.
2. All the signatories of the convention having thus become parties to
it after express notice of "the conditions under which her Majesty's
Government have expressed their willingness to agree to it," must, it
can hardly be doubted, share the view that the convention is operative
only _sub modo_.
3. Supposing the convention to have become operative, and supposing the
territorial Power to be neutral in a war between States which we may
call A and B, the convention would certainly entitle A to claim
unmolested passage for its ships of war on their way to attack the
forces of B in the Eastern seas.
4. The language of the convention, being as it, is the expression of a
compromise involving much re-drafting, is by no means always as clear as
it might be. But when Mr. Gibson Bowles is again within reach of
Blue-books he will probably agree with me that the treaty need not, as
he suggests, be "read as obliging the territorial Power, even when
itself a belligerent, to allow its enemy to use the canal freely for the
passage of that enemy's men-of-war." The wide language of Art. 1 (which
is substantially in accordance with Mr. Gibson Bowles's reminiscence of
it) must be read in connection with Art. 10, and without forgetting
that, in discussing the effect of an attack upon the canal by one of the
parties to the convention, Lord Salisbury wrote in 1887, "on the whole
it appears to be the sounder view that, in such a case, the treaty,
being broken by one of its signatories, would lose its force in all
respects."
Your obedient servant,
T. E. HOLLAND.
Oxford, October 9 (1898).
THE CLOSING OF THE DARDANELLES
Sir,--Now that the pressure upon your space due to the clash of opposing
views of domestic politics is likely to be for the moment relaxed, you
may, perhaps, not think it inopportune that attention should be recalled
to a question of permanent international interest raised by the recent
action of the Turkish Government in closing the Dardanelles to even
commercial traffic.
I cordially agree, as would, I suppose, most people, with your leading
article of some weeks since in deprecating any crude application to the
case of the Dardanelles and Bosporus of _dicta_ with reference to
freedom of passage through straits connecting two open seas. It would,
indeed, be straining what may be taken to be a general principle of
international law to say that Turkey is by it prohibited from protecting
her threatened capital by temporarily closing the Straits.
A good deal of vague reference has, however, been made in the
discussions which have taken place upon the subject to "Treaties" under
which it seems to be thought that trading ships enjoy, in all
circumstances, rights of free navigation through the Straits in question
which they would not have possessed otherwise. I should like, therefore,
with your permission, to state what seem to be the relevant Treaty
provisions upon the subject, whether between the Powers constituting the
European Concert collectively, or between Russia and Turkey as
individual Powers.
As to what may be described as the "European" Treaties, it is necessary,
once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris
of 1856 and its annexed Convention; Art. 2 of the Treaty of London of
1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878.
These articles have exclusive reference to the "ancient rule of the
Ottoman Empire," under which, so long as the Porte is at peace, no
foreign ships of war are to be admitted into the Straits. There are,
however, two articles, still in force, of these "European" Treaties
which may seem to bear upon the present inquiry. By Art. 12 of the
Treaty of Paris:--
"Free from any impediment, the commerce in the ports and
waters of the Black Sea shall be subject only to regulations
of health, Customs, and police, framed in a spirit favourable
to the development of commercial transactions."
And by Art. 3 of the Treaty of London:--
"The Black Sea remains open, as heretofore, to the mercantile
marine of all nations."
It is submitted that these provisions relate solely to commerce carried
on by vessels already within the Black Sea, and contain no covenant for
an unrestricted right of access to that sea.
As between Russia and Turkey individually, Treaties which are still in
force purport, no doubt, to give to the former a stronger claim to free
passage through the Straits for her mercantile marine than that which
can be supposed to be enjoyed by other Powers. By Art. 7, for instance,
of the Treaty of Adrianople of 1829, the Porte recognises and declares
the passage of the "Canal de Constantinople," and of the Strait of the
Dardanelles, to be entirely free and open to Russian merchant vessels;
and goes on to extend the same privilege to the merchant vessels of all
Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is
still more explicit, providing that "the Bosporus and Dardanelles shall
remain open in time of war as in time of peace to the merchant vessels
of neutral States arriving from or bound to Russian ports." The rest of
the article contains a promise by the Porte never henceforth to
establish a "fictitious blockade, at variance with the spirit of the
Declaration of Paris"; meaning thereby such a blockade of ports on the
Black Sea as had been enforced by Turkish ships of war stationed at the
entrance to the Bosporus.
It may well be doubted whether these articles, containing concessions
extorted from Turkey at the end of wars in which she had been defeated,
ought not, like so many other provisions of the Treaty of San Stefano,
to have been abrogated by the Treaty of Berlin. They are of such a
character that, in the struggle for existence, Turkey can hardly be
blamed for disregarding them. As was said long ago, "Ius commerciorum
aequum est, at hoc acquius, tuendae salutis." The imperious necessities
of self-preservation were recognised both by Lord Morley and by Lord
Lansdowne in the debate which took place on May 3, although Lord
Lansdowne intimated that
"the real question, which will have to be considered sooner
or later, is the extent to which a belligerent Power,
controlling narrow waters which form a great trade avenue for
the commerce of the world, is justified in entirely closing
such an avenue in order to facilitate the hostile operations
in which the Power finds itself involved."
It is, I think, clear that the solution of a question at once so novel
and so delicate must be undertaken, not by any one Power, but by the
Concert of Europe, or of the civilised world, which must devise some
guarantee for the safety of any littoral Power which would be called
upon in the general interest to restrict its measures of self-defence.
In the meantime, we may surely say that the case is provided for neither
by established international law nor by "European" Treaties; and,
further, that the Treaties between Russia and Turkey, which do provide
for it, are not such as it is desirable to perpetuate.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 22 (1912).
THE CLOSING OF THE DARDANELLES
Sir,--I am reminded by Mr. Lucien Wolf's courteous letter that I ought
probably to have mentioned, in alluding to the Treaty of San Stefano,
that it is doubtful whether Art. 24 of that Treaty is in force. It was
certainly left untouched by the Treaty of Berlin, but the language of
the relevant article (3) of the definitive Treaty of Peace of 1879 is
somewhat obscure, nor is much light to be gained upon the point from the
protocol of the 14th _séance_ of the Congress of Berlin, at which Art.
24 came up for discussion.
The earlier Treaties, however, which were revived beyond question by
Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full
rights of passage between the Black Sea and the Ægean, exercisable, for
all that appears, in time of war as well as of peace, although these
Treaties contain no express words to that effect. Such rights, I would
again urge, if enjoyed by one Power, should be enjoyed by all; upon
terms to be settled, not by any pair of Powers but by the Powers
collectively.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 5 (1912).
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