IV.
However this may be, the question as to whether the stipulation of Article III, No. 1, of the Hay-Pauncefote Treaty that vessels of all nations shall be treated on the basis of entire equality is meant to apply to vessels of all nations without exception, or only to the vessels of foreign nations and not to those of the United States, can only be decided by an interpretation of Article III which takes the whole of the Hay-Pauncefote Treaty as well as the Clayton-Bulwer Treaty into consideration.
(1) There is no doubt that according to the Clayton-Bulwer Treaty the future Canal was to be open on like terms to the citizens of all nations including those of the United States, for Article VIII expressly stipulates "that the same canals or railways, being open to the subjects and citizens of Great Britain and the United States on equal terms, shall also be open on like terms to the subjects and citizens of every other State which...."
(2) The Clayton-Bulwer Treaty has indeed been superseded by the Hay-Pauncefote Treaty, but it is of importance to notice the two facts, expressed in the preamble of the latter:—(a) that the only motive for the substitution of the latter for the former treaty was to remove any objection which might arise under the Clayton-Bulwer Treaty to the construction of the Canal under the auspices of the Government of the United States; (b) that it was agreed that the general principle of neutralisation as established by Article VIII of the Clayton-Bulwer Treaty should not be considered to be impaired by the new treaty. Now the equal treatment of American, British, and any other nation's vessels which use the Canal is part and parcel of the general principle of neutralisation as established by Article VIII of the Clayton-Bulwer Treaty, and such equal treatment must, therefore, be considered not to have been impaired by Article III of the Hay-Pauncefote Treaty.
(3) Article III of the Hay-Pauncefote Treaty stipulates—as a consequence of the fact, expressed in the preamble of the Treaty, that the general principle of neutralisation of the Canal as established by Article VIII of the Clayton-Bulwer Treaty shall not be impaired by the Hay-Pauncefote Treaty—that the United States adopts, as the basis of the neutralisation of the Canal, six rules substantially as embodied in the Suez Canal Treaty of Constantinople of 1888. Now although the Suez Canal Treaty nowhere directly lays down a rule which is identical with the rule of Article III, No. 1, of the Hay-Pauncefote Treaty, it nevertheless insists upon equal treatment of the vessels of all nations by stating in Article XII:—"The high contracting parties, in application of the principle of equality concerning the free use of the canal, a principle which forms one of the bases of the present treaty, agree that...." That this principle of equality of all nations concerning the free use of the Suez Canal means equality of vessels of all nations with the exception of the vessels of Egypt or even of Turkey, has never been contended; such a contention would, I am sure, have been objected to by the parties to the Suez Canal Treaty. For this reason the term "all nations" in the Hay-Pauncefote Treaty can likewise only mean all nations, including the United States.
(4) The literal meaning of the words "all nations" leads to the same conclusion. If something is stipulated with regard to "all" nations, every nation is meant without exception. If an exception had been contemplated, the words "all nations" could not have been used, and if all foreign nations only were contemplated, the words "all foreign nations" would have been made use of.
(5) There is also an argument from Article IV of the Hay-Pauncefote Treaty which states that no change of territorial sovereignty or of the international relations of the country or countries traversed by the Canal should affect the general principle of neutralisation or the obligation of the high contracting parties under the treaty. The general principle of neutralisation is, as laid down in the preamble of the Hay-Pauncefote Treaty, the general principle of neutralisation as established by Article VIII of the Clayton-Bulwer Treaty, and it has already been shown—see above IV, No. 2, p. 24—that equal treatment of British, American, and any other nation's vessels using the Canal is part and parcel of that general principle of neutralisation.
(6) Lastly, Article IV of the Hay-Pauncefote Treaty must be read in conjunction with Article II. The latter does not exclusively contemplate the construction of the Canal by the United States, it contemplates rather the construction under the auspices of the United States, either directly at her cost, or by gift or loan of money to individuals or corporations, or through subscription to or purchase of stocks and shares. The question may well be asked whether, in case the United States had not acquired the Canal territory and had not herself made the Canal, but had enabled a company to construct it by the grant of a loan, or by taking shares, and the like, she would then also have interpreted the words "all nations" to mean "all foreign nations," and would, therefore, have claimed the right to insist upon her own vessels enjoying such privileges in the use of the Canal as need not be granted to vessels of other nations. Can there be any doubt that she would not have done it? And if we can reasonably presume that she would not have done it under those conditions, she cannot do it now after having acquired the Canal territory and having herself made the Canal, for Article IV declares that a change in the territorial sovereignty of the Canal territory shall neither affect the general principle of neutralisation nor the obligation of the parties under the treaty.
V.