project of protocol submitted by
colombian minister, general santo domingo-vila.
Considering that the United States of America, by section 1, article 35, of the treaty now in force between the two countries of the 12th of [Page 362] December, 1846, has bound itself to guarantee to the United States of Colombia their sovereignty over the territory called the Isthmus of Panama, and the neutrality of transit through that territory;
That the possible opening of the canal will render still graver the obligations contracted by the Government of the United States of America;
That it is the duty of Colombia to concur with the United States of America in the defense of her territory and the neutrality of the aquatic passage from one sea to the other;
The two governments, namely, the United States of Colombia and the United States of America, have agreed to amplify the existing treaty of peace, friendship, navigation, and commerce between the Republic of New Granada and the United States of America of the 12th of December, 1846, in the following terms:
For the purpose of the guarantee of the neutrality and the sovereignty of Colombia over the territory called the Isthmus of Panama, by the United States of America, according to the section and article above cited of the treaty of the 12th of December, 1846, it is understood that said territory is the same comprised at present in the State of Panama in the Colombian Union, and that the neutrality and sovereignty guaranteed embraced the entire extent of that territory.
The guarantee of neutrality consists in this, that the United States of America shall, by all adequate measures, including a belligerent alliance with the United States of Colombia, prevent said territory from being converted into a theater of hostilities by any power or foreign force; and if this shall have taken place without it having been possible to prevent it in time, the United States of America shall assist with Colombia in its defense as long as hostilities last, and shall oblige the responsible power to make the proper reparation.
The guarantee of sovereignty consists in this, that the United States of America shall, by the necessary measures, including the use of force, prevent the territory in question from being the object of conquest or usurpation, or of intrigues which shall tend to separate it from the Columbian Union, employed by any foreign power.
The expenses incurred by the United States of America in the fulfillment of the engagements entered into for the defense of the sovereignty of Colombia over the Isthmus of Panama and its neutrality shall be at the charge of the Treasury of the United States of America.
With the object of facilitating to the United States of America the fulfillment [Page 363] of the obligations which they have contracted by the treaty of the 12th of December, 1846, to which the foregoing article refers, the two contracting parties have agreed as follows:
Colombia will lend to the Government of the United States of America all the facilities which may be in her power, including permission for the temporary occupation of the territory threatened or invaded, as long as the emergency may last.
The Governments of Colombia and of the United States of America, of common accord, shall designate on the coasts of the Isthmus of Panama two places where there may be erected works of defense, permanent or temporary, where there may be established coaling stations for the provision of the naval forces which the two nations may have at their service.
As long as there is no occasion for the United States of America to assist with Colombia in the defense of the sovereignty of the latter over the territory of the Isthmus of Panama and in the maintenance there of neutrality, the custody of the defensive works which may be constructed shall be at the charge of the Government of Colombia.
The American forces destined by the Government of the United States of America to act in concurrence with those of the Government of Colombia in the defense of the sovereignty and neutrality of the territory of the isthmus in their relations with the Colombian authorities shall exercise their functions in the territory of Colombia in the same terms which the constitution prescribes for their exercise by the national forces of Colombia.
The military operations shall be under the charge of the commander-in-chief of the Colombian or American forces who may hold the greater number of military stations in the field of operations.
In case the President of Colombia shall assume the command of the Columbian armies, and shall be present in the field of operations, these forces, and those of the allied armies employed there, shall act under his immediate command.
With the exception of the case which is merely possible, not probable—and please God never shall occur—of war between the United States of Colombia and the United States of America, transit shall be [Page 364] permitted through the above-mentioned canal; first, to the ships of war of the United States of America at all times, whether the United States are or are not engaged in war; second, of the troops of their Army or Navy which it may be necessary to transport from one shore to the other of the American Union, with the proviso that they shall pass without arms through the waters of the canal and integral part of the Colombian territory; and thirdly, of every class of supplies for the service of men-of-war and of troops.
For the security of transit through the Isthmus of Panama against internal political disorders, the Government of the United States of Colombia will always maintain in that territory a national armed force sufficient to preserve tranquillity and public security against revolution, mutiny, or disorder of any kind.
For the fulfillment of the obligations contracted in the present treaty, the two contracting parties shall proceed always in good faith and entirely in accord.
counter-project from the department.
Whereas the United States of America, by section I, article 35, of the treaty now in force between the two countries of the 12th of December, 1846, have bound themselves to guarantee to the United States of Colombia their sovereignty over the Isthmus of Panama and the neutrality of transit through that territory;
Whereas the possible opening of an interoceanic canal through the said isthmus will render still graver and more onerous the obligations contracted by the Government of the United States of America;
And whereas it is the duty of the United States of Colombia to support and facilitate the United States of America in the maintenance and protection of the sovereignty and neutrality of the said isthmus;
Now, therefore, the two governments have agreed:
That all concessions or grants heretofore made, or hereafter to be made, by the Government of the United States of Colombia for the purpose of securing the completion of an interoceanic canal across the Isthmus of Panama are, and shall be subject to the rights accruing to the United States of America in virtue of the guarantee by the said United States of America in the thirty-fifth article of said treaty, and the exercise of which may become necessary for the proper discharge of the obligations therein undertaken. And no such concession or modification of any such concession, can or shall be hereafter made without the consent of the said United States of America.
And in execution of this provision, any such concession, made or to be made, shall receive the approval of the said United States of America before the work authorized by such concession shall be undertaken or commenced.[Page 365]
That while the sovereignty of the United States of Colombia over the territory of the said isthmus shall not be divested, the use of the said canal shall be as free to the government and citizens of the United States of America as to the government and citizens of the United States of Colombia; and the government and citizens of the United States of America shall be subject to no other tolls or conditions upon its use than are charged upon the government and citizens of the United States of Colombia.
Whenever the canal shall become the property, or shall come into the beneficial possession of the United States of Colombia, the Government of the United States of Colombia shall hold it as a trust for the commercial world, collecting only such tolls as are necessary for its proper administration and as reasonable revenue to that government, according to its general taxation of real and personal property.
That, in order to maintain efficaciously the said guarantee, the Government of the United States of America shall have the right to occupy and fortify such places in the ports and harbors at the termini of the said canal as may be deemed by the said government necessary and fit for the establishment of coaling stations, naval depots, ship-yards, and docks; and the Government of the United States of America shall have the further right to establish and occupy at the entrances of said canal, or along the line of its construction, such fortifications as the said government may deem necessary for the maintenance and protection of the neutrality of said canal and the sovereignty of the said United States of Colombia. And the selection of such naval stations and the location of such fortifications shall be made by the two governments, and they shall together regulate the mode and extent of the occupation thereof; and the expense of their construction, maintenance, and occupation shall be at the cost of the United States of America.
That in time of peace the canal shall be free and open to the mercantile marine of all nations upon payment of the tolls and compliance with the regulations which may be established therefor under the supervision and with the consent of the two governments. And in time of war, the two governments agree that neither will exercise the belligerent right of capture, detention, or blockage of merchant vessels within the limits of said canal, its ports, harbors, or dependencies, and such distance of open sea as may hereafter be determined, against the merchant vessels of any power which has, by treaty stipulation with the United States of America and the United States of Colombia, agreed to respect the neutrality of said isthmus.
That the canal is closed, as matter of right, both in time of peace and war, to the naval vessels, or military transports whether of troops or munitions, of all nations, except the two contracting governments; but the said governments hereby agree to declare open to all vessels of war the harmless use of the canal communication in time of peace, [Page 366] subject to such regulations and restrictions as the said two contracting governments may jointly adopt.
tendencies of the draft presented by the minister of colombia.
- To recognize that the construction of a canal across the Isthmus of Panama increases the obligations contracted by the United States of America by article 35 of the treaty of 1846, which is now in force between the two nations; and to manifest the willingness of Colombia to facilitate the fulfillment of said obligations.
- To determine the territory referred to by the guarantee of the sovereignty of Colombia over the isthmus and of the neutrality of transit.
- To define the circumstances under which it shall be the duty of the United States to assist Colombia in the defense of the guaranteed territory.
- To state with precision the facilities which Colombia is ready to lend the United States for the fulfillment of the obligations contracted by them, among others, the designation, by common consent, by the two governments, of the places requiring temporary or permanent fortifications, of places suitable for coaling stations for the vessels of both nations, the occupation by force of the United States of America, of the territory threatened or invaded, so long as the emergency shall last, and free passage through the canal for the war-vessels of the United States.
tendencies of the draft presented by the hon. secretary of state.
- Article 2 tends to modify article 6 of the Salgar-Wyse convention.
- Article 3 is based upon the idea of the fortification and permanent occupation of the canal and its appurtenances by forces of the United States of America.
- Articles 4 and 5 tend to modify article 5 of the Salgar-Wyse convention.
It may easily be deduced from the comparison made, that articles 2, 4, and 5 of the draft of the honorable Secretary of State are open to the same objections as article 1, which it has been determined not to discuss, in view of the fact that the undersigned minister does not consider himself authorized to agree in the name of his government to any deviation from the Salgar-Wyse convention, without the consent of the other party that has contracted with Colombia, which reason induced the undersigned to abstain from entering upon any discussion on the basis of article 1 of the draft of the Hon. Secretary of State, and to solicit fresh instructions from his government.
With respect to article 3 of the draft of the Hon. Secretary of State, the undersigned takes the liberty to observe that if the fortification of the territory in question is to take place before the occurrence of the danger from which it is sought to guard that territory, he does not think that the permanent occupation of said territory by the forces of the [Page 367] United States of America is indispensable, or even necessary, especially since Colombia will, the case arising, keep such an armed force on the isthmus as may be necessary to protect the canal from surprise, thus giving the United States time, in any event, to come to its aid.
The undersigned, as he stated in the draft which he submitted to the consideration of the Hon. Secretary of State, would be willing to agree to permanent fortification, but only to temporary occupation; that is, during the prevalence of the danger recognized by the Government of Colombia.