CHAPTER II.

GENERAL PRINCIPLES BEARING ON THE QUESTION OF THE NEUTRALISATION OF WATERWAYS.

AFTER the brief examination of the theory of neutralisation, it would be profitable to discuss certain general principles applicable to artificial maritime routes, so that we may be enabled to bring the question of the Panama Canal under their light, and then proceed to draw our inferences as free from ambiguities and vagueness as it is possible. It has been seen what neutralisation is, as well as the purposes for which it is accomplished and the manner of making it effective. But instead of proceeding immediately to apply the principles thus observed to the case of the interoceanic waterway, it might be expedient to deal with other more specific factors that are considered to bear an intimate relation to the matter in hand, and which may greatly contribute to explain the ultimate position which the canal is made to assume.

It is hardly necessary to point out that maritime problems are of transcendent value to all peoples. If the sea is considered from the point of view of serving as a highway between the different nations of the globe, its great importance is immediately

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realised. It is to be remembered that the rule of the open sea was one of the first recognised principles of the law of nations, in spite of the fact that the existence of an international community was not clearly perceived at the beginnings of the science of International Law. Interoceanic canals serve the same purpose, for they facilitate that intercourse that is essential for the relations of the different members of the family of nations. And they not only have a commercial value, but they also play an important part from the political and strategic points of view, and are therefore of great importance in the hostile as well as in the peaceful intercourse of nations.

But it is only to those maritime routes that facilitate the means of communication between different nations, and which on this account can be termed of general interest, that the above remarks will apply. For those artificial canals that only or mainly serve the purpose of the state through which they pass, can have no claim to such international importance. The former may ultimately be considered to be under the domain of International Law, all nations having equal rights on them; while the latter would be governed by the municipal regulations of the power concerned, and would be, therefore, under their exclusive control.

In spite of the great importance that these artificial canals have, they are the result of recent development. It is only during comparatively late years that men have realised the expediency of obtaining direct and prompt means of communication; and even if the want of them had been felt before, there were insurmountable difficulties for carrying

a projected enterprise to a successful termination. It is then on account of the novelty of the enterprise that so many difficulties may be encountered in ascertaining positively the juridical status of these artificial highways. When a new problem is set for solution, human ingenuity is immediately directed by a natural process to find the relation that may exist between the new facts and some other problem whose solution has already been established. Thus it is that in the case of artificial canals attempts have been made to show that there is a real analogy between them and the ordinary straits that connect two seas, on the one hand, and the territorial waters of the state or states through which the canal is made, on the other.

It is asserted by some writers that interoceanic canals become, on account both of their very nature and of the purposes for which they are made, integral parts of the open sea, on the same footing as natural straits, and should therefore be always free to the passage of all vessels, that is to say, that they should never be closed to the war flag of a belligerent.1

In opposition to this view, it is contended that the piercing of a canal does not thereby denationalise the territory through which it passes; the conclusion drawn from this being that artificial waterways should not be assimilated to natural straits but to the territorial waters of the respective states.2

This latter opinion is again opposed on the ground

1 See Calvo, Le Droit international theorique et pratique, t. i. p. 507. The delegate of Austria-Hungary to the Conference of Paris (1885) expressed the view that there was a real analogy between artificial canals and natural straits.

2 Rossignol, Le Canal de Suez, pp. 166 et seq.

of drawing from the premises an inexact conclusion. For, it is said, in the ports and bays of a neutral state belligerent vessels remain stationary, while in maritime canals they are moving, for their object is merely to cross its waters.1

A further suggestion is possible, which, from one point of view, has the advantage of reconciling the assimilation of canals to territorial waters with the above objection. It consists in the claim that all the rules relative to rivers must analogously be applied to canals.2

It will perhaps be apposite to remark here that questions of analogy are extremely difficult, and it follows that if the essential characteristics of the notion have not been fully grasped the logical deductions that the argument is made to yield would necessarily contain misleading, if not entirely erroneous, conclusions. It seems clear to us that the fact of these canals being artificial is an important characteristic, and must cause, therefore, all the foregoing analogies to break down.

The objection might be raised that such canals. seem to be parts of the territories of the respective states because they have been before integral parts thereof, and could only come into existence through their assent and acquiescence. For, prima facie, a state is free to do with its property anything that it deems fit, and is consequently at liberty to cause

1 Cp. Abribat, Le Détroit de Magellan au point de vue international, 1902, p. 211.

2 Much valuable information on the subject of canais may be found in Oppenheim, International Law, vol. i. p. 233; Holland, Studies, pp. 270-298; Bustamante, "Le Canal de Panama et le Droit Inter national," Revue de Droit International, tome 27, pp. 223 and•227.

canals to be opened in its territories, such canals to be under its exclusive control and regulation, so that no other states would have a right, apart from special conventions, to the advantages that may be derived from the new route. But, on the other hand, it must be borne in mind that there exist in International Law some well-established principles as regards the freedom of passage by what may be considered to be the world's thoroughfares that tend to indicate that, when a certain route has been opened for international purposes, the territorial state through which that route passes-and indeed any other state that may have a special interest in it-is expected to relinquish, to a certain extent, its jurisdiction. The stretch of land or water thus affected ceases to be, from the international standpoint, governed by the national law of that state, and passes to the domain of the law of nations. In fact, the route becomes international because it is dedicated to the use of all nations, that is, on account of its international object

-a result that is always due to the peculiar position of the place in question. When this is the case it may be a question, at least in theory, whether a state by altering the world's thoroughfares is not thereby producing material changes that would have peculiar effects in the development of other countries, and these effects may, potentially at least, bring about a certain amount of evil in the relations of other countries. Under these circumstances one would then feel inclined to. suggest that a state cannot, without the acquiescence of the other parties interested, proceed to open a canal of communication, for it may influence their future destinies. But of course