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a belligerent should not revictual nor take any stores in the canal except so far as might be strictly necessary, the transit of such vessels to be effected with the least possible delay in accordance with the regulations in force, and with only such intermission as might result from the necessities of the service, and prizes to be in all respects subject to the same rules as vessels of war of the belligerents; (d) that no belligerent should embark or disembark troops, munitions of war or warlike materials in the canal, except in case of accidental hindrance of transit, in which case the transit should be resumed with all possible despatch; (e) that the provisions of the Article (embracing the rules) should apply to waters adjacent to the canal, within three marine miles of either end, and that vessels of a belligerent should not remain in such waters longer than twentyfour hours at any one time, except in case of distress, and in such case depart as soon as possible, but that a vessel of war of one belligerent should not depart within twenty-four hours from the departure of the vessel of war of the other belligerent; (f) that the plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal should be deemed to be part thereof, for the purposes of the treaty, and in time of war as in time of peace, should enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the Canal.1

By the treaty with Panama of November 18, 1903, whereby the United States, as has been elsewhere noted, became the lessee in perpetuity of a zone traversing the territory of the former State, it was agreed that the Canal when constructed should be "neutral in perpetuity", and should "be opened upon the terms provided for by Section I of Article Three of, and in conformity with all the stipulations of, the Hay-Pauncefote Treaty.3 It was declared that the Government of the Republic of Panama should have the right to transport over the Canal its vessels and its troops and munitions of war in such vessels at all times without paying charges of any kind. To the United States was accorded the right to use its police and its land and naval forces, or to establish fortifications See Neutrality Proclamation of President Wilson with respect to the Panama Canal Zone, Nov. 13, 1914, American White Book, European War, II, 18.

2 Panama, supra, § 20. See Malloy's Treaties, II, 1349. 3 Art. XVIII.

Art. XIX. It was here also provided that the exemption was to be extended to the auxiliary railway for the transportation of persons in the service of the Republic of Panama, or of the police force charged with the preservation of public order outside of the zone, as well as to their baggage, munitions of war and supplies.

for the protection of the Canal or of vessels making use of it, or of the railways or auxiliary works thereof.1

The treaties with Great Britain and Panama did not apparently contemplate the impressment upon the Canal of a status of neutralization. There was an absence of any collective guaranty appropriate to such an end, and no design of uniting interested maritime States in such an undertaking. The work of maintenance and defense was left to a single power. No obligation was assumed by the United States not to bar the use of the waterway by an enemy, and not to protect it by force. No plan was devised to remove from an enemy (except possibly Great Britain or Panama, should either of those States unhappily wage war against the United States)2 the right to attack the Canal with a view to its seizure for strategic or other purposes.3 Nor was the United States prevented from permitting, when a neutral, such uses of the waterway by belligerent maritime States as it might lawfully accord them in its own ports.1

1 Art. XXIII.

2"In the event of the remote and well-nigh impossible contingency of a war between the United States and Great Britain, each party is remitted to its natural right of self-defense, but, even in that emergency, by force of the sixth clause of Article III - which is the only clause in the treaty by its terms expressly applying in time of war as in time of peace- the plant, establishment, buildings, and all works necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, and shall enjoy complete immunity from attack or injury by the enemy, and from acts calculated to impair their usefulness as part of the canal." Mr. Hay, Secy. of State, to Mr. Cullom, Chairman of Senate Committee on Foreign Relations, personal, Dec. 12, 1901, Diplomatic Hist. of Panama Canal, above cited, 53, 59.

3 The question presents itself, however, whether the long-continued use of the canal by the public as well as private vessels of a foreign State, under the rules of the treaty of 1901, would not impose upon it a duty, when at war with the United States, such as would be imposed on Great Britain were it the enemy of the United States. It might be urged with force that the acceptance and use of privileges of transit, which the United States was not obliged itself indiscriminately to accord, created a corresponding duty not to commit acts which in time of war the rules expressly forbade. 4 Chas. H. Stockton, Outlines, 144.

"The latter word [neutralisation] is frequently used in reference to the Suez Canal; but, strictly speaking, it is not correct, inasmuch as the passage of belligerent warships is permitted, whilst in neutralised territory the passage of belligerents' forces is prohibited. Lord Cromer, speaking of the term 'neutralisation' as applied to the Suez Canal, cited Lord Pauncefote as saying that it had reference only to the neutrality which attaches by international law to the territorial waters of a neutral State, in which a right of innocent passage for belligerent vessels exists, but no right to commit any act of hostility.' Phillipson and Buxton, Question of the Bosphorus and Dardanelles, London, 1917, 239, citing Earl of Cromer, Modern Egypt, London, 1908, II, 384. It may be observed that Lord Cromer in the course of his statement referred to Lord Pauncefote as "an excellent authority on this subject." Dr. Hershey, in his Essentials of International Law, 1912, p. 211, Note 38, also adverted to Lord Cromer's statement.

Concerning the right of the United States to fortify the Canal, see George

The permanence of the isolation of the Canal from scenes of hostility, to the extent of the requirements of the Hay-Pauncefote Treaty, thus appears to depend technically upon the military and naval power of the United States. To this, however, must be added the vast influence of the moral (and possibly naval) support of Great Britain which, although unburdened by a legal obligation, must always be regarded as constituting in fact a co-guarantor.

c

The Supremacy of the Territorial Sovereign Over the National Domain (1)

$199. In General.

States are agreed that within the national domain the will of the territorial sovereign is supreme. That will must, therefore, be exclusive, opposing the assertion of any other, and excluding the lawfulness of obedience to the commands of such other. There can be no conflict of right in the matter.1

In the application of this principle international differences frequently arise in cases where it is believed that the territorial sovereign has abused its rights as such, or where it is contended conversely, that within the national domain some public foreign agency has committed acts in derogation of the rights of that sovereign. Controversies also arise as to the extent to which a State has, for any reason, consented to relax its right of exclusive control in favor of a foreign power. It will be observed that in all of these situations the particular problem concerns the relation of the territorial sovereign to a foreign State or its nationals by reason of conduct or occurrences taking place within the domain of the former. This is true whether the acts complained of have been committed by that sovereign or by some foreign individual or agency in opposition to its will.

B. Davis, "Fortification at Panama", Am. J., III, 885; Peter C. Hains, "Neutralization of the Panama Canal", id., III, 354; H. S. Knapp, "The Real Status of the Panama Canal", id., IV, 314; Crammond Kennedy, "The Canal Fortifications and the Treaty", id., V, 620; Richard Olney, "Fortification of the Panama Canal", id., V, 298; Eugene Wambaugh, "The Right to Fortify the Panama Canal", id., V, 615.

1 Declares Hall: "And it being a necessary result of independence that the will of the state shall be exclusive over its territory, it also asserts authority as a general rule over all persons and things, and decides what acts shall or shall not be done, within its dominion.' Higgins' 7 ed., p. 49. See, also, Beale's Cases on Conflict of Laws, III, Summary, § 23.

See Rights of Jurisdiction, In General, infra, § 218.

(2)

Acts in Derogation of the Supremacy of the Territorial Sovereign

(a)

§ 200. Generally Illustrative Instances.

Any act committed within the territory of a State in obedience to the command of a foreign power and contrary to the will of the territorial sovereign marks contempt for its supremacy therein.1 A few instances may be noted as illustrative.

The operations or movements of a foreign military or naval force within the territory of a State are of such a character and constitute a serious invasion of its rights. The United States has always so regarded the acts of such foreign agencies within its own domain,2 and has likewise deplored their commission under normal circumstances by its own forces abroad.3 For the same

1 Mr. Jefferson, Secy. of State, to Mr. Ternant, French Minister, May 15, 1793, denouncing as contrary to the law of nations the condemnation by the French Consul at Charleston of a British vessel captured by a French frigate. Am. State Pap., For. Rel., I, 147-148. See, also, The Apollon, 9 Wheat. 362.

2 Mr. Clay, Secy. of State, to Mr. Vaughan, British Minister, Feb. 18, 1828, MS. Notes For. Leg., III, 430, Moore, Dig., II, 4; Mr. Buchanan, Secy. of State, to Mr. Wise, Minister to Brazil, Sept. 27, 1845, MS. Inst. Brazil, XV, 119, Moore, Dig., II, 4; Mr. Forsyth, Secy. of State, to Mr. La Branche, Chargé d'Affaires to Texas, Jan. 8, 1839, MS. Inst. Texas, I, 15, Moore, Dig., II, 363; Mr. Wilson, Acting Secy. of State, to the Mexican Ambassador, March 9, 1911, For. Rel. 1911, 419; Mr. Knox, Secy. of State, to the Mexican Chargé d'Affaires, April 10, 1911, id., 453.

"Indeed, as you know, I have already declined, without Mexican consent, to order a troop of Cavalry to protect the breakwater we are constructing just across the border in Mexico at the mouth of the Colorado River to save the Imperial Valley, although the insurrectos had scattered the Mexican troops and were taking our horses and supplies and frightening our workmen away.' President Taft, Annual Message, Dec. 7, 1911, id., XII. President Taft announced the purpose, however, to be in such a position that when danger to American lives and property in Mexico threatened, and the existing government was rendered helpless by the insurrection, he could "promptly execute congressional orders to protect them, with effect."

3 Mr. Monroe, Secy. of State, to the Chevalier de Onis, Spanish Minister, Feb. 7, 1816, MS. Notes to For. Leg., II, 128, Moore, Dig., II, 362; Mr. Seward, Secy. of State, to Mr. Welles, Secy. of the Navy, Aug. 4, 1862, 58 MS. Dom. Let. 15, Moore, Dig., II, 363.

Concerning certain general orders in 1864, of Major-General Dix, U. S. A., relative to the pursuit into Canada of a band of persons which had raided St. Albans, Vermont, see Moore, Dig., II, 367–368.

In cases of the accidental killing or injury by public vessels of the United States within the territorial waters of foreign States, of citizens of such States, ample_indemnities have been paid and full apologies expressed. See President Jackson, special message to Congress, June 18, 1834, H. Ex. Doc. 492, 23 Cong., 1 Sess., Moore, Dig., II, 369. See, also, For. Rel. 1889, 547-549, relative to consequences of target practice in 1887, of the U. S. S. Omaha, while in Japanese waters, Moore, Dig., II, 369

reason, the pursuit and arrest of deserters by foreign expeditions without the consent of the local authorities is necessarily looked upon with disapproval.1

Foreign civil officials are bound to respect the same principle. Thus they cannot lawfully, without the consent of the territorial sovereign, make an arrest within its domain,2 or rescue any one from the custody of its officials,3 or take to, or detain therein, any person however lawfully arrested within the territory of their own State. Private citizens are under the same obligations and cannot, for example, lawfully enter and take from the territory of a foreign State, without its consent, the person of any individual found therein.5

The exercise of certain administrative functions by foreign civil agents is regarded as likewise inconsistent with the lodgment of supreme control in the territorial sovereign. The practice of Russian consuls in the United States of subjecting to certain invidious discriminations American citizens of Jewish faith, by refusing to visé their passports, was described by President Cleveland in 1895, as "an obnoxious invasion of our territorial jurisdiction." It may be noted that Germany, in 1895, regarded with disapproval the authorization by the United States of its own officials to inspect or order the disinfection in German ports of foreign vessels bound for the United States."

6

1 Mr. Monroe, Secy. of State, to Mr. Baker, Dec. 6, 1815, MS. Notes For. Leg., II, 113, Moore, Dig., II, 362; Mr. Seward, Secy. of State, to Mr. Stanton, Secy. of War, April 15, 1853, 60 MS. Dom. Let. 231, Moore, Dig., II, 370; Case of incursion in 1888, from Mexico into Texas of armed force to arrest Antanicio Luis, an alleged deserter, described in Moore, Dig., II, 371, and documents there cited.

2 Mr. Bayard, Secy. of State, to Mr. Manning, Minister to Mexico, Feb. 26, 1887, MS. Inst. Mexico, XXI, 646, Moore, Dig., II, 373; Nogales Case, 1893, For. Rel. 1893, 457, 471, id., 1896, 439-454, Moore, Dig., II, 380; Mr. Hay, Secy. of State, to Sir Julian Pauncefote, British Ambassador, Jan. 21, 1899, MS. Notes to British Legation, XXIV, 427, Moore, Dig., II, 381. See, also, Mr. Wilson, Acting Secy. of State, to the Mexican Ambassador at Washington, March 14, 1911, concerning the cases of Edward M. Blatt and Lawrence F. Converse, For. Rel. 1911, 606.

3 Nogales Case, 1887, described in Moore, Dig., II, 376–379, and documents there cited from For. Rel. 1887 and 1888, part. II.

Case of Peter Martin, For. Rel. 1877, 266, Brit. and For. State Pap., LXVIII, 1223, Moore, Dig., II, 371–373.

5 Case of Madeline His, For. Rel. 1894, 646-675, Moore, Dig., II, 384–389, and documents there cited.

• President Cleveland, Annual Message, Dec. 2, 1895, For. Rel. 1895, I, xxxii, Moore, Dig., II, 10. See, also, correspondence between the United States and Russia, 1893, For. Rel. 1893, 547 and 548; and in 1895, For. Rel. 1895, II, 1056–1074, especially Mr. Adee, Acting Secy. of State, to Mr. Breckinridge, Minister to Russia, Aug. 22, 1895, For. Rel. 1895, II, 1067. The more important of the foregoing documents are contained in Moore, Dig., II, 8-13. Declared Mr. Gresham, Secy. of State, to Baron Saurma, German Am

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