SECTION 2
In Other Waters
Sir,—Your correspondent "M.B." has done good service by calling attention to the misleading nature of the often-repeated [052]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 [053]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,