¹ Two monographs touch the fringes of the subject: Smith, D. H., The Panama Canal (Baltimore, 1927)Google Scholar; McCain, W. D., The United States and the Republic of Panama (Durham, 1937)Google Scholar. Both of these are useful and excellent so far as they go. The Smith volume, No. 42 of the Service Monograph Series, is primarily concerned with the governance and administration of the Panama Canal from an administrative point of view. McCain’s book is based upon a careful study of available diplomatic correspondence bearing upon the Canal and American-Panamanian relations. It does not go extensively into the legal situation.

² Reference may be made to Art. XXXV of the treaty of Dec. 12,1846, with New Granada, which is still in force. Miller, H., Treaties and Other International Acts of the United States of America (Washington, 1937), Vol. V, p. 115 Google Scholar; Malloy, W. H., Treaties, Conventions, International Acts, Protocols and Agreements Between the United States and Other Powers (Washington, 1910), Vol. I, p. 302 Google Scholar. For state papers and diplomatic correspondence bearing upon this treaty, see Moore, J. B., Digest of International Law (Washington, 1906), Vol. III, pp. 5–46 Google Scholar.

See likewise Articles XIV-XVIII of the Treaty of June 21,1867, with Nicaragua, Malloy, , op. cit., Vol. II, p. 1279 Google Scholar; Protocol for the Construction of an Interoceanic Canal, concluded Dec. 1,1900, ibid., p. 1290; Convention Respecting a Nicaraguan Canal Route, Aug. 5,1914, ibid., vol. III, p. 2740. For comment on 1867 treaty, see Moore, , op. cit., vol. III, pp. 184–185 Google Scholar.

³ Text in this Journal, Supp., Vol. 3 (1909), p. 127; 32 U. S. Stat., pt. 2, 1903; Malloy, , op. cit., Vol. I, p. 782 Google Scholar.

⁴ The Senate of the United States refused to ratify the 1900 draft treaty on the Canal containing the clause: “The High Contracting Parties will, immediately upon the exchange of ratifications of this Convention, bring it to the notice of the other Powers and invite them to adhere to it.” Moore, , op. cit., Vol. III, p. 211 Google Scholar. Cf. Arts. XI and XIX of the treaty with Panama, infra.

⁵ It may be recalled that the British landed troops in Egypt in 1882 to protect the Canal against the Arabi rebels; that they expressly refused to withdraw them at the time of or after the signature of the Constantinople Convention; and that Bismarck was advised: ”We can never agree to the canal being neutralized.” See Hoskins, Halford L., “The Suez Canal in Time of War,” Foreign Affairs, Vol. 14 (1935), pp. 93–101 CrossRefGoogle Scholar.

⁶ “ 1. The Canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.

“2. The canal shall never be blockaded, nor shall any right of war be exercised nor any act of hostility be committed within it. The United States, however, shall be at liberty to maintain such military police along the canal as may be necessary to protect it against lawlessness and disorder.

“3. Vessels of war of a belligerent shall not revictual nor take any stores in the canal except so far as may be strictly necessary; and the transit of such vessels through the canal shall be effected with the least possible delay in accordance with the Regulations in force, and with only such intermission as may result from the necessities of the service.

“Prizes shall be in all respects subject to the same Rules as vessels of war of the belligerents.

“4. No belligerent shall embark or disembark troops, munitions of war, or warlike materials in the canal, except in case of accidental hindrance of the transit, and in such case the transit shall be resumed with all possible dispatch.

“5. The provisions of this Article shall apply to waters adjacent to the canal, within 3 marine miles of either end. Vessels of war of a belligerent shall not remain in such waters longer than twenty-four hours at any one time, except in case of distress, and in such case, shall depart as soon as possible; but a vessel of war of one belligerent shall not depart within twenty-four hours from the departure of a vessel of war of the other belligerent.

“6. The plant, establishments, buildings, and all work necessary to the construction, maintenance, and operation of the canal shall be deemed to be part thereof, for the purposes of this Treaty, and in time of war, as in time of peace, shall enjoy complete immunity from attack or injury by belligerents, and from acts calculated to impair their usefulness as part of the canal.” This Journal, Supp., Vol. 3 (1909), p. 128; 32 U. S. Stat., pt. 2, 1903; Malloy, , op. cit., Vol. I, pp. 782–783 Google Scholar.

⁷ See account of the negotiations sent to the Senate Committee on Foreign Relations, Senate Doc. No. 746, 61st Cong., 3d Sess. It may be interesting to observe that in Art. II of the draft treaty signed in 1900 the “neutralization” was definitely related to the “general principle” of neutralization laid down in Art. VIII of the Clayton-Bulwer Treaty. One cannot refrain from noting that the 1850 principle of neutralization was drafted before the British had had experience with the question in the Suez.

⁸ The first part of Sec. 1 is based upon Art. I of the Constantinople Convention, omitting the important clause—“in time of war as in time of peace.” The latter half of the section is related to Art. XII, although it is made rather more specific than in the 1888 instrument. Had this portion of Sec. 1 reproduced Art. XII, the United States might have had a stronger case on the Tolls question. Sec. 2 draws upon the wording or principles of parts of Arts. I, IV, and X. The first half of Sec. 3 follows almost literally par. 2 of Art. IV, while the second part reproduces Art. VI. Sec. 4 adopts Art. V, slightly rephrased. Sec. 5 takes over parts of pars. 1 and 3 of Art. IV. Sec. 6 adopts and strengthens propositions contained in Arts. II and III. The text of the 1888 convention may be found in this Journal, Supp., Vol. 3 (1909), p. 123; also in British and Foreign State Papers, Vol. 79, p. 18; in English version in Commercial No. 2, 1889, C. 5623.

⁹ Sir Edward Grey to the British Ambassador in Washington, Nov. 14, 1912. U. S. Foreign Relations, 1912, pp. 481–489.

¹⁰ Memorandum accompanying signature of the Panama Canal Act, 1912. Ibid., pp. 475–480. Proceedings of Am. Soc. Int. Law, 1913, p. 324.

¹¹ These questions were vigorously debated in articles appearing in this Journal in 1909, 1910 and 1911. See Hains, Peter C., “Neutralization of the Panama Canal,” this Journal , Vol. III (1909), pp. 354–394 Google Scholar; Davis, George W., “Fortification at Panama,” ibid., pp. 885–909 Google Scholar; Knapp, H. S., “The Real Status of the Panama Canal as Regards Neutralization,” ibid., Vol. IV (1910), pp. 314–358 Google Scholar; Olney, Richard, “Fortification of the Panama Canal,” ibid., Vol. V (1911), pp. 298–301 Google Scholar; Wambaugh, E., “The Right to Fortify the Panama Canal,” ibid., pp. 615–619 Google Scholar; Kennedy, C., “The Canal Fortifications and the Treaty,” ibid., pp. 620–638 Google Scholar.

¹² Sec. 7 of Art. II. Moore, , op. cit., Vol. III, p. 211 Google Scholar. This had led the American Senate to insert a reservation, which the British refused to accept, asserting that none of the Rules should “apply to measures which the United States may find it necessary to take for securing by its own forces the defense of the United States and the maintenance of public order.” Ibid. See Reports of the Committee on Foreign Relations, 1789–1901 (Washington, 1901), Vol. VIII, p. 650. It is notable that this reservation was based upon the British position regarding the defense of Egypt and the Suez Canal. Ibid., p. 648. The British negotiators maintained that such a reservation “would strike at the very root of that ‘general principle’ of neutralization on which the Clayton-Bulwer treaty was based, and which was reaffirmed in the Convention as drafted.” The Marquess of Lansdowne to Lord Pauncefote, Feb. 22, 1901. British and Foreign State Papers, Vol. XCIV, p. 483. Secretary Hay’s energies were subsequently directed toward persuading the British to forego all reference to the Clayton-Bulwer “general principle of neutralization” in the text of the new treaty.

¹³ Moore, , op. cit., Vol. III, pp. 214, 215Google Scholar.

¹⁴ On Nov. 14, 1912, Sir Edward Grey wrote to the British Ambassador in Washington a note handed to the Department of State, in which he said: “Now that the United States has become the practical sovereign of the Canal, His Majesty’s Government do not question its title to exercise belligerent rights for its protection.” For. Rel., 1912, p. 486.

¹⁵ Moore, , op. cit., Vol. III, pp. 267–268 Google Scholar; Hershey, A. S., Essentials of International Law (Rev. ed., New York, 1929), pp. 315–316 Google Scholar.

¹⁶ 32 U. S. Stat. 481; Treaties and Acts of Congress Relating to the Panama Canal (Mt. Hope, 1922), pp. 30–33.

¹⁷ President Theodore Roosevelt remarked in his Annual Message to Congress, Dec. 7, 1903: “When the Congress directed that we should take the Panama route under treaty with Colombia, the essence of the condition, of course, referred not to the Government which controlled that route, but to the route itself; to the territory across which the route lay, not to the name which for the moment that territory bore on the map. The purpose of the law was to authorize the President to make a treaty with the power in actual control of the Isthmus of Panama.” For. Rel., 1903, p. xxxii. The Republic of Panama existed neither in fact nor in law when the Spooner Act was passed in 1902. Had it existed at that time, the contention of the President would have had less weight.

¹⁸ See President Roosevelt’s Special Message to Congress, Jan. 4, 1904, For. Rel., 1904, pp. 260–278. See also Senate Doc. 230, 56th Cong., 1st Sess.; ibid., 389, 56th Cong., 1st Sess.; H. Ex. Doc., 63, 46th Cong., 2nd Sess.; Senate Doc. 54, 57th Cong., 1st Sess., pts. 1 and 2; ibid., 123, 57th Cong., 1st Sess. See further, Treaties and Acts Relating to the Panama Canal, p. 31, n. 34.

¹⁹ Text in this Journal, Supp., Vol. 3 (1909), p. 130; 33 U. S. Stat., pt. 2,2234; Malloy, , op. cit., Vol. II, p. 1349 Google Scholar; Treaties and Acts Relating to the Panama Canal, p. 18.

²⁰ The Secretary of Foreign Affairs of Panama, Mr. Arias, writing to American Minister Barrett, July 27, 1904, did speak of the transfer as a cession: “… and the zone thus surrendered was ceded to the Government of the United States, in perpetuity.” For. Re)., 1904, pp. 591–592.

²¹ The jurisdiction of Panama “ceased” upon the exchange of ratifications of the treaty. See Note from Panaman Government to General Davis, May 24, 1904, For. Rel., 1904, p. 584.

²² If it be argued that the “canal” acquired by the United States is not the canal which the United States constructed and now operates, it may be replied that the Panama Canal is but the completion of the canal which was already begun when the United States purchased the concession.

²³ Panama accepted a permanent servitude. Vali, F. A., Servitudes in International Law (London, 1933), pp. 204–205 Google Scholar.

²⁴ This involved questions of the application of the United States tariff; the establishment of customs houses; the construction and operation of hotels, stores, motion picture houses; the sale of provisions and supplies to vessels, etc. See various notes of the Panaman Secretary for Foreign Affairs, Mr. Arias, to American Minister Barrett, and of Panaman Minister de Obaldia to Secretary Hay: For. Rel., 1904, pp. 587–613. The same points were argued extensively in 1923 between Minister Alfaro and Secretary Hughes. See For. Rel., 1923, Vol. II, pp. 638–687. For excellent résumé and account of these problems, see McCain, , op. cit., pp. 23–47, 225–241Google Scholar.

²⁵ For. Rel., 1904, pp. 613–630. This position was strongly sustained by Secretary Hughes in 1923. Ibid., 1923, Vol. II, pp. 652–653.

²⁶ Señor de Obaldia to Secretary Hay, For. Rel., 1904, p. 598 et seq.

²⁷ Minister Alfaro renewed the arguments in his letter to Secretary Hughes, dated January 3, 1923. The Minister asserted:

“It is proper to remark that the zone has not been sold, transferred, or alienated by the Republic of Panama to the United States in full ownership. That which was ceded is the use, occupation, and control of the zone for the specific needs of the construction, conservation, operation, sanitation, and protection of the Canal. If the Canal were abandoned by the United States, the United States would have no legal ground for occupying the zone, title to which it has not acquired either by purchase, transfer, or conquest. Further, the Canal Zone has not been even leased to the United States because the annual payment of two hundred and fifty thousand dollars which it undertook to make under the Canal treaty was not stipulated as a fee for the use of the zone.” For. Rel., 1923, Vol. II, pp. 645–646. See also Memorandum of a Conversation, Dec. 15, 1923, ibid., pp. 682–683. For a general account of the controversy at this time, see McCain, , op. cit., pp. 225–241 Google Scholar.

²⁸ Secretary Hughes reiterated this in 1923: “The grant to the United States of all the rights, power and authority which it would possess if it were sovereign of the territory described, and to the entire exclusion of the exercise by Panama of any such sovereign authority, is conclusive upon the question you raise. The position of this Government upon this point was clearly and definitely set forth in the note of Mr. Hay to Mr. de Obaldia of October 24, 1904.” For. Rel., 1923, Vol. II, pp. 638, 653 et seq. In conversation Secretary Hughes said: ‘‘This Government would never recede from the position which it had taken in the note of Secretary Hay in 1904. This Government could not and would not enter into any discussion affecting its full right to deal with the Canal Zone under Article III of the Treaty of 1903 a3 if it were the sovereign of the Canal Zone and to the exclusion of any sovereign rights or authority on the part of Panama … This must be regarded as ending the discussion of that matter.” Ibid., p. 684.

Cf. the citation of J. N. Gris v. The New Panama Canal Co., Supreme Court of Panama, in Secretary Hughes’ note of Oct. 15, 1923, quoted above, in which that Court said: “The Republic of Panama agreed that the United States should possess and exercise, to the entire exclusion of the Republic, those rights, powers and authority, that is to say, the rights, power and authority that a sovereign alone can have …” Ibid., p. 656.

In a note dated Oct. 13, 1923, the Secretary refused to agree to arbitrate “any question attacking the exercise of sovereign rights of the United States explicitly granted under Article III of the Treaty of 1903 with Panama.” Ibid., p. 710.

²⁹ Ibid., p. 685.

³⁰ The statement of Secretary Taft before the Committee on Interoceanic Canals, April 18, 1906, is pertinent to this distinction:

“It (Article III) is peculiar in not conferring sovereignty directly upon the United States, but giving to the United States the powers which it would have if it were sovereign. This gives rise to the obvious implication that a mere titular sovereignty is reserved in the Panamanian Government. Now, I agree that to the Anglo-Saxon mind a titular sovereignty is like what Governor Allen, of Ohio, once characterized as a ‘barren reality’, but to the Spanish or Latin mind poetic and sentimental, enjoying the intellectual refinements, and dwelling much on names and forms it is by no means unimportant. Therefore, when the question of the form of stamp was to be determined, I had not the slightest hesitation in yielding to the view that we should adopt the system which for a time General Davis had himself adopted before he got United States stamps, of merely purchasing the Panamanian stamps and crossing them with the words ‘Canal Zone’.

“The truth is that while we have all the attributes of sovereignty necessary in the construction, maintenance, and protection of the canal, the very form in which these attributes are conferred in the treaty seems to preserve the titular sovereignty over the Canal Zone in the Republic of Panama, and as we have conceded to us complete judicial and police power and control over the zone and the two ports at the end of the canal, I can see no reason for creating a resentment on the part of the people of the Isthmus by quarreling over that which is dear to them but which to us is of no real moment whatever.” Hearings, pp. 2527, 2399.

Mr. Woolsey, in a succinct editorial comment in this Journal, Vol. 20 (1926), p. 117, entitled, “The Sovereignty of the Panama Canal Zone”, remarks: “There remains a scintilla of sovereignty—a reversionary sovereignty still in the Republic of Panama.”

³¹ Canal Zone Supreme Court Reports, Vol. I, pp. 3–4. See also Government v. Diaz, ibid., Vol. III, p. 465, and Dixon v. Goethals, ibid., p. 23.

³² 204 U. S. 24. By the Act of Feb. 27,1909 (35 Stat. 658), Congress authorized the President “to grant leases of the public lands … of the United States within the Canal Zone” for limited periods of time and purposes. Treaties and Acts, op. cit., p. 51. All such leases would have lacked full legal foundation if the United States had been lacking in adequate title in its own right. Sec. 2 of the Act provided for reprocurement of all leased land whenever the United States found it necessary. Sec. 3 of the Panama Canal Act of 1912 fortified the Government’s claim upon all land covered by the treaty by providing that the President might declare all land within the Zone necessary for Canal purposes. This was done by Executive Order on Dec. 5, 1912. Executive Orders Relating to the Panama Canal Zone (1904–1921) (Mt. Hope, 1922), p. 132.

³³ In Canal Zone v. Coulson, the Supreme Court of the Canal Zone said: “It is apparent from an examination of the Treaty that the United States is not the owner in fee of the Canal Zone, but has the use, occupation and control of the same in perpetuity so long as they comply with the terms of the Treaty, and pay $250,000 in gold coin of the United States of America per annum to the Republic of Panama.” Canal Zone Sup. Ct. Rep., Vol. I, pp. 54–55. Following the abandonment of the gold standard by the United States in 1933, a serious disagreement arose between the United States and Panaman Governments concerning the obligation of the United States to continue paying the annuities in “standard gold coin of the United States of America.” Dept. of State Press Releases, March 2, 1926. Agreement was finally reached in the 1936 treaty, Art. VII, that beginning with the 1934 payment, the annuity was to be calculated in balboas, and the United States was to pay in any coin or currency having a sum value equal to 430,000 balboas in Panaman currency. Text in Congressional Record, July 24, 1939, p. 13768 et seq.

³⁴ Long and bitter disputes have persisted over the implications and applications of these articles by the Canal Zone officials. They are admirably summarized in McCain, op. cit., pp. 144–161. The treaty of 1936 was designed to set at rest some of the disagreements.

³⁵ Cf. Art. XX which further supplements and guarantees the monopoly acquired and assured to the United States.

³⁶ McCain, op. cit., pp. 180–183 and references.

³⁷ Rules and Regulations, Nov. 13, 1914, forbade aircraft to ascend from, fly over, or descend in the Canal Zone. Annual Report of the Governor of the Panama Canal, 1915, pp. 545–547. The 1926 Air Commerce Act, Sec. 176, asserted the United States had complete sovereignty over the airspace above the Canal Zone, and forbade aircraft belonging to foreign armed forces to navigate therein without special authorization. Canal Zone Code, p. 1009. Feb. 18, 1929, President Coolidge, in Exec. Order No. 5047, declared the Panama Canal Zone to be a “military airspace reservation,” and defined the rules for operations therein and thereover. This Journal, Supp., Vol. 23 (1929), pp. 121–123. Detailed regulations were issued by the Secretary of State Feb. 26, 1929. Ibid., pp. 123–133.

³⁸ Commercial flights across Panaman territory began early in 1929. McCain, , op. cit., pp. 183–185 Google Scholar.

³⁹ Bulletin of the Pan American Union, Vol. LXIII (1929), pp. 723, 833–834, 1267.

⁴⁰ See For. Rel., 1904, pp. 585–644; ibid., 1923, Vol. II, pp. 638–687.

⁴¹ This will be dealt with subsequently.

⁴² This Commission was dissolved March 10, 1920. Treaties and Acts Relating to the Panama Canal, p. 19 n.

⁴³ Executive Order of the Governor of the Canal Zone of Sept. 19, 1906, and Decree No. 118 of the President of Panama of Sept. 22,1906, established the details of the arrangement. Annual Report of the Governor, 1906, pp. 75–79. Sec. 12 of the Panama Canal Act of 1912 extended the United States extradition laws to the Canal Zone. See also Extradition Treaty, United States-Panama, May 25, 1904, Malloy, , op. cit., Vol. II, p. 1357 Google Scholar.

⁴⁴ Art. XXV emphasizes the permanently neutral character of the enterprise: “For the better performance of the engagements of this convention and to the end of the efficient protection of the Canal and the preservation of its neutrality …”

⁴⁵ Attention may be called to an odd aspect of the drafting of Art. XVIII, which may or may not be of some significance. It is provided that the Canal shall be opened upon the terms provided for by Sec. 1 of Art. III of the 1901 treaty. No mention is made of Secs. 2–6 of Art. III. However, Art. XVIII continues: “and in conformity with all the stipulations” of the treaty. If the Canal is to be opened in conformity with all the stipulations of the treaty, does that not include Secs. 2–6 of Art. III? It has never been admitted by the United States that Secs. 2–6 are servitudes upon itself. From this point of view, the omission of reference to these sections of the Rules may be important.

⁴⁶ See also Art. XXV.

⁴⁷ Quaere: Would the Canal Zone and Canal revert to Panama if the United States closed the Canal and no longer continued its operation, maintenance or sanitation? The treatment of the Canal by the United States during the World War will be examined in a succeeding issue of the Journal.

⁴⁸ Sec. 6 of the Spooner Act authorized the President to make such concessions and guarantees to Panama.

⁴⁹ The 1936 treaty, superseding certain parts of the 1903 treaty, will be considered later.

⁵⁰ Text in U. S. For. Rel., 1904, p. 562. A slightly different version appears in Les Constitutions Modernes, edited by Delpech, J. and Laferrière, J. (4th ed., Paris, 1932), Vol. IV, p. 260 Google Scholar.

⁵¹ It would be interesting to know who was responsible for the insertion of this paragraph into the Constitution of Panama. No published correspondence, documents, or biographies reveal the unseen hand.

⁵² U. S. For. Rel., 1904, p. 578.

^52a This Journal, Supp., Vol. 3 (1909), p. 130; Malloy, , op. cit, Vol. II, p. 1349 Google Scholar.

⁵³ Secretary of War Taft, in his conference with Panama officials on Nov. 28, 1904, said:

“Now, that I may make myself plain: With the present Government, with President Amador and these gentlemen as his advisers, it might very well be that we should allow to lie dormant the exercise of powers that in case of the election of a Government whose personnel would not be so friendly to the United States we might have to use, and thus to protect our construction and maintenance and control of the Canal by the exercise of greater powers than those we desire not to exercise.” For. Rel., 1923, Vol. II, p. 681.

The position was stated in greater detail in a letter addressed to the Secretary of War by Mr. Root, Secretary of State, on Feb. 21,1906, in response to the receipt by the Department of State of a memorial from the Liberal Party in Panama soliciting the intervention of the United States in the approaching national elections. Mr. Root dealt with the matter from a broad point of view. He stated that while the United States does not propose to interfere with the independence of the Republic, and while it is its desire to maintain an attitude of impartiality between contesting parties, it is interested in seeing “a fair, free, and honest election in Panama, because it considers such an election necessary to the peace and prosperity of the country and the stability of its Government.” No doubt was left that in Panama, Colon and the Canal Zone, the United States “will not permit any interference with the peace and order.”

Furthermore, he said: “If circumstances require that a military force of the United States be sent into foreign territory and there enforce the rights of this nation by force of arms, such proceeding would be an act of war, unless assented to by the nation exercising sovereignty over said territory. In the instance of Panama the constitutional provision above quoted supplies the necessary assent provided the injury anticipated results from disturbance of the public peace and constitutional order. … The construction of the Isthmian Canal is … a national endeavor of the United States, and measures which interfere with that work and are calculated to obstruct, hinder, or delay its accomplishment are interferences with the rights and privileges of the United States and must be dealt with accordingly …” Ibid., 1906, Pt. II, pp. 1203–1206.

An Instruction drawn up by the Secretary of War and sent to the American Minister at Panama on April 26, 1906, expressed the policy of the government even more clearly. Referring to Mr. Root’s note, copy of which had been sent as an Instruction to the Minister, Secretary Taft said that this “did not mean at all to circumscribe the powers of action of the United States in case an insurrection in the Republic of Panama anywhere threatened danger to the interests of the United States in building the canal, or to its property in the Canal Zone. The question whether such interference ought to take place he characterizes as a military question, and one to be determined by the knowledge of conditions on the Isthmus and the practical effect that the insurrection would have on the building of the canal. I have no hesitation whatever in saying that in my judgment an insurrection in any part of the Republic would disturb the order in Panama and Colon and adjacent territory, and would greatly increase the difficulties that the United States would have in constructing the canal; and while, of course, the forces of our Government ought not to intervene until it is established that the Republic of Panama can not maintain order in its own territory, I think the United States may properly, under the clauses of the treaty construed in the light of the provision of the constitution of Panama, quoted by the Secretary of State, and to prevent its inevitable interference with the work of canal construction, suppress any insurrection in any part of the Republic.” Ibid., pp. 1206–1207.

Secretary of State Frank B. Kellogg advised the Panama authorities in 1927 that these notes continued to express the policy of the United States. Dept. of State Press Releases, Dec. 23, 1927.

⁵⁴ The instances of intervention are discussed in McCain, op. cit., pp. 62–96.

⁵⁵ This Journal, Supp., Vol. 28 (1934), p. 75; U. S. Treaty Series, No. 881; Treaties, Conventions, International Acts, Protocols, and Agreements Between the United States and Other Powers, Vol. IV (Sen. Doc. No. 134, 75th Cong., 3d Sess., Washington, 1938), p. 4807.

⁵⁶ This Journal, Supp., Vol. 31 (1937), p. 57; U. S. Treaty Series, No. 923; Treaties, Conventions, etc., op. cit., Vol. IV, p. 4821.

⁵⁷ Secretary of State Hull declared at the Montevideo Conference, anent the Convention on the Rights and Duties of States, “… under the Roosevelt Administration the United States Government is as much opposed as any other Government to interference with the freedom, the sovereignty, or other internal affairs or processes of the governments of other nations.” This declaration was made as a reservation to the convention, with particular reference to the article on non-intervention, and was made a formal part of the ratification by the United States Government. Further on in the reservation it is said that: “it is unfortunate that during the brief period of this Conference there is apparently not time within which to prepare interpretations and definitions of these fundamental terms …” Mr. Hull may have had in mind the American right in Panama, but this cannot be asserted as a truth.

The Reports of the Committee on Foreign Relations of the United States Senate regarding the ratification of the Montevideo and Buenos Aires instruments make no mention of the matter. The only place where anything germane appears is in the Report of the Committee on the General Treaty of Friendship and Cooperation of 1936 with Panama. There appear the following paragraphs:

“In addition to the desirability of expanding the base of the existing convention to require greater responsibilities from Panama as well as of omitting various provisions that are no longer necessary, certain changes in the convention would seem required to harmonize with our national policy. The provisions of articles I and VII of the convention of 1903 mentioned above were considered by the Executive to be inconsistent with the aspirations of Panama, which the subcommittee considers natural and legitimate, to remove limitations upon its sovereignty, as well as with the present foreign policy of our Government. The announced policy of the United States is one opposed to intervention in the internal affairs of other nations, and it will be recalled that the Senate has given its consent to a convention on the rights and duties of States adopted at the Inter-American Conference at Montevideo on December 26,1933, which provides in article VIII that ‘No state has the right to intervene in the internal or external affairs of another.’

“However, it should be noted that in the event of emergencies which might require prompt action by the United States to safeguard the Canal against aggression or even against a threat of aggression, such action may be taken immediately under article X of the general treaty. Mention is again made of the full understanding of the Panamanian Government that under such emergency conditions ‘consultation’ may necessarily have to follow rather than precede the taking of action.” Senate, Executive Report, No. 5, 76th Cong., 1st Sess., p. 5.

⁵⁸ Attention may be called, however, to Art. XXIII of the 1903 treaty which authorizes the United States to use its armed forces for the protection of the Canal. The article reads: “If it should become necessary at any time to employ armed forces for the safety or protection of the Canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times and in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes.” This gives the United States a right to use armed force in relation to the Canal and its ancillary works. It is conceivable that this may involve the use of armed force within Panaman jurisdiction. The purpose for which armed force may be used under this article is different from the purpose for which it may be used under the 136th Article of the Constitution.

⁵⁹ The treaty-making power in Panama is vested by the Constitution in the President, by and with the approval or disapproval of the National Assembly. Arts. 65, par. 5, and 73, par. 3. There are said to be no other or unusual limitations or formalities in the treaty-making procedure. Department of State, The Treaty-Making Power in Various Countries (Washington, 1919), p. 55.

⁶⁰ Charles, Cheney Hyde, International Law (Boston, 1922), Vol. II, pp. 9–10 Google Scholar. Dr. Hyde notes the case of Cuba, which by constitutional declaration of June 12,1901, and the treaty of May 22, 1903, with the United States, lost legal capacity to enter into a valid treaty with a foreign Power which would impair its independence.

⁶¹ Greco-Bulgarian Communities case. P. C. I. J. Publications, Series B, No. 17, p. 32. Judge Manley O. Hudson in his treatise on The Permanent Court of International Justice (New York, 1934), p. 544, says that up to 1934 the court had “not adverted to the question of whether international capacity of states is subject to their own constitutional limitations.” No evidence can be found that the court has passed upon this question since then.

⁶² The Research in International Law at the Harvard Law School made an extensive examination of the literature and of the practice of states regarding this question in drafting Art. 21 of its Draft Convention on the Law of Treaties. It found that while some writers hold that a treaty made in excess of a constitutional limitation is internationally binding, a perhaps larger group of distinguished publicists hold that a treaty not in accord with the fundamental law of a state is not binding. It found that in practice states generally have denied the binding force of unconstitutional agreements, as has also been the case in jurisprudence. This Journal, Supp., Vol. 29 (1935), pp. 999, 1002, 1005, 1008.

The United States, in particular, has held that treaties must conform to constitutional limitations. Moore, J. B., Digest of International Law (Washington, 1906), Vol. V, pp. 166171 Google Scholar; Hyde, , op. cit., Vol. II, p. 10 Google Scholar; Burdick, C. K., Law and Customs of the American Constitution (New York, 1922)Google Scholar, Sec. 34. For dicta of the United States Supreme Court, see Cherokee Tobacco case, 11 Wall. 620; Downes v. Bidwell, 182 U. S. 244, 370; Missouri v. Holland, 252 U. S. 416,434; Asakura v. Seattle, 265 U. S. 332.

An examination of the Reports of the Supreme Court of Panama fails to reveal any ruling or dicta bearing upon the reconcilability of treaties and constitutions.

Panama has signed and ratified the Convention on Treaties adopted at Havana, Feb. 20, 1928, Art. 1 of which recites: “Treaties will be concluded by the competent authorities of the states or by their representatives, according to their respective internal law.” Hudson, M. O., International Legislation (Washington, 1931), Vol. IV, p. 2378 Google Scholar. From this article it may be deduced that treaties entered into by Panama shall be concluded on the basis of the Panama Constitution, of which Arts. 3 and 136, as well as 65 and 73, have been mentioned above.

⁶³ To be sure, Panama and the United States cannot adduce their special relationship as a basis for exceeding the terms of the Montevideo and Buenos Aires agreements with other contracting parties thereto.

The comment in the Draft Convention on the Law of Treaties of the Research in International Law of the Harvard Law School says: “a State cannot rely upon a provision in its constitution existing at the time a treaty was entered into to evade or justify non-performance of provisions in the treaty with which the constitutional provision is in conflict.” This Journal, Supp., Vol. 29 (1935), p. 1032. The Permanent Court of International Justice, in the Case Concerning the Treatment of Polish Nationals in the Danzig Territory, declared “a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.” Publications, Ser. A/B, No. 44, p. 24. The cases and comments noted above refer to situations where a state contracts to do something or to allow another to do something when its Constitution forbids such action. The situation with respect to Panama is the reverse: where the state by treaty declares something to be inadmissible, which by its Constitution it decrees to be admissible.

⁶⁴ The comment upon Article 22(b) of the Harvard Research Draft Convention on the Law of Treaties advances the thesis that there may be “certain great multipartite treaties which by reason of their nature and purpose have something of the character of a constitution in its relation to a statute. … It is believed that certain parties to such instruments do not have the same freedom to alter them by particular agreements among themselves that they may have in respect to other multipartite treaties not having such a character.” This Journal, Supp., Vol. 29 (1935), p. 1018. In the absence of any agreement among the American Republics that the 1933 and 1936 instruments have such a precluding character, it must be presumed that they are subject to the normal exception which the comment recognizes.

⁶⁵ Hudson, M. O., International Legislation, Vol. IV (Washington, 1931), pp. 2378–2385 Google Scholar.

⁶⁶ This same principle would seem to apply to a situation in which the agreement between the states took the form of permission written into the national Constitution.

⁶⁷ There is nothing in the Convention on the Duties and Rights of States in the Event of Civil Strife, signed at Havana, Feb. 20, 1928 (U. S. Treaty Series, No. 814), which would cause any complication.

⁶⁸ Supplement to this Journal, p. 139. U. S. Treaty Series, No. 945. Ratifications were exchanged and the treaty was proclaimed July 27, 1939.

⁶⁹ Report of the subcommittee of the Committee on Foreign Relations of the United States Senate. Sen. Ex. Rep. No. 5, 76th Cong., 1st Sess., p. 4.

⁷⁰ Ibid., p. 4.

⁷¹ Dept. of State Press Releases, March 2, 1936.

⁷² Sen. Report, op. cit. The report continues: “The Executive insisted upon this point during the course of the negotiations and has brought to the attention of the subcommittee extracts from the minutes which clearly reveal that the point of view of our Government was accepted by the Government of Panama.” Ibid., p. 5.

⁷³ The acceptance of these views by Panama is evidenced by a note from the Panamanian Minister, Mr. Boyd, to the Secretary of State, Mr. Hull, dated Feb. 1,1939, and “attached ” to the treaty in its ratified and proclaimed form. The note is of vital significance. It is reprinted in this Journal, Supp., p. 157.

⁷⁴ Sen. Report, op. cit., p. 5.

⁷⁵ Note of the Panamanian Minister to the Secretary of State, loc. cit.

⁷⁶ These will be dealt with in a succeeding issue of the Journal.