Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1881

No. 210.
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 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:

I.

(A.)

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.

(B.)

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.

(C.)

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.

(D.)

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.

II.

With the object of facilitating to the United States of America the fulfillment 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:

(A.)

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.

(B.)

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.

(C.)

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.

(D.)

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.

(E.)

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.

(F.)

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.

(G.)

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 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.

III.

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.

IV.

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:

I.

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.

II.

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.

III.

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.

IV.

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.

V.

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, 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.

1. 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.

2. To determine the territory referred to by the guarantee of the sovereignty of Colombia over the isthmus and of the neutrality of transit.

3. 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.

4. 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.

1st. Article 2 tends to modify article 6 of the Salgar-Wyse convention.

2d. 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.

3d. 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 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.

R. STO. DOMINGO VILA.

Washington, February 12, 1881.

memorandum of the department of state on the colombian project and counter-project.

The project submitted by the Colombian minister recites that it is based upon three considerations:

1. That there is an existing guarantee of the neutrality of the isthmus and of the sovereignty of Colombia over the isthmian territory, assumed by and now obligatory on the United States by virtue of thirty-fifth article, treaty of 1846.

2. That the probable opening of an interoceanic canal communication through the isthmus renders still graver these treaty obligations.

That Colombia is bound to concur with the United States in the maintenance of this guarantee of neutrality and sovereignty.

In the value of these considerations the United States concur, and both parties are therefore agreed upon the reasons which render important stipulations in development and explanation of the former treaty.

The United States do not consider it necessary to describe more specifically the boundaries of the territory covered by the guarantee than they were defined and understood at the date of the treaty. Not does it seem desirable to attempt a more precise description of the obligations of the guarantee than the treaty contains. The provisions of the treaty are sufficiently full and accurate in the description of the obligations of the guarantee, and the United States do not desire either on the one hand to limit its existing responsibility or on the other to increase or extend its obligations. Besides which the provisions of any supplemental treaty which may be agreed upon will, by the practical details for the execution of the guaranteee which it may furnish, sufficiently define and limit the character of the treaty obligation for the execution of which it provides.

Article I.

This article declares that all concessions or grants heretofore made or hereafter to be made by the Colombian Government, for the execution of an interoceanic canal, are and shall be subject, in virtue of the guarantee of the thirty-fifth article, to the approval of the United States.

The Colombian minister objects to this, that it is inadmissible so far only as concerns any concession heretofore regularly made by the Colombian Government, for such concession must be considered as an executed contract. He recognizes as not unreasonable the right of the United States to demand the preliminary of their consent to any new concession or to the modification of anyone now existing. Putting aside a discussion of the principle involved in this objection, it would seem quite possible to find ground for substantial agreement by so shaping the practical articles of the proposed supplemental treaty as to protect the rights of the United States accruing under the thirty-fifth article from any invasion by the grants of the concession. For if the sovereignty and character of Colombia are concerned in the maintenance of a contract which, however inadvertently as far as the rights and interests of the United States are concerned, it has regularly and formally executed, that sovereignty and character are none the less concerned in the maintenance of a treaty, which is a higher contract of an older date. Besides, as the text of the concession is now before both governments, it would be convenient to their common interests and obligations under the existing treaty, for the United States to assign the clauses or provisions in the concession which seem objectionable, and for Colombia to undertake for their modification by the grantees, or, if impracticable, accept the protest of the United States as to their being inoperative as against the United States.

Article II.

This article provides that while the sovereignty of Colombia shall not be divested, the use of the said canal shall be as free to the government and citizens of the United States as to the government and citizens of Colombia.

The details of this article need not be recapitulated, for the objection of the Colombian minister seems to be confined to the claim of equality of use of the canal by the government, although the commercial use by the citizens of the United States is not questioned.

The difficulty seems to arise from the provisions of the Wyse concession, which (article 6) declares:

The United States of Colombia reserve to themselves the right to pass their vessels, troops, and munitions of war at all times without paying any dues whatever.

This provision is supposed to confer upon the holders of the concession the right to impose dues upon the vessels, troops, and munitions of war of all other nations, and, therefore, to be incompatible with the right claimed by the United States of the free and equal use of the canal by the government as well as by citizens.

This concession was granted in 1878.

In 1846, in the thirty-fifth article of the treaty of that date, “the Government of New Granada guarantees to the Government of the United States that the right of way or transit across the Isthmus of Panama, upon any modes of communication that now exist or that may be hereafter constructed, shall be open and free to the government and citizens of the United States,” and then goes on to provide that no other tolls or charges for the use of this communication shall be levied upon the citizens of the United States than are levied upon the citizens of New Granada.

The stipulation is clear and explicit that the communication is “open and free to the Government” of the United States, and “open and free to the citizens” of the United States, subject in case of the citizens to the collection of the same dues collected from citizens of New Granada.

And in order to secure themselves the tranquil and constant enjoyment of these advantages * * * the United States guarantee positively and efficaciously, &c.

That is to say, the United States guarantee the neutrality of the isthmus and the sovereignty of Colombia over its territory, upon the express condition that the canal communication shall be open and free absolutely to the government and open and free conditionally to the citizens of the United States, the conditions being the same imposed upon Granadian citizens. Under this article the United States may justly claim that the freedom of use of the canal was theirs absolutely, whether the Colombian Government consented or not to the payment of toll for that use; but all they have asked is that the use of the United States shall be the same as the use of Colombia.

And it surely must have occurred to the Colombian minister that, if this right to levy toll upon the Government of the United States by the holders of the concession be admitted, the United States might find themselves not prevented from discharging the obligation of their guarantee, but annoyed and encumbered with heavy impositions and burdensome regulations whenever Colombia might require the use of their vessels, troops, or munitions of war in execution of the guarantee.

It cannot be supposed that the United States ever contemplated such a condition; and the language of the Colombian minister in reference to the obligation of the Colombian Government to maintain its concession once guaranteed would sufficiently justify the United States in declining to believe that the Colombian Government has ever intended or would now undertake to subordinate the provisions of the elder treaty to the stipulations of the later grant.

If this error has been inadvertently committed, it is for the Colombian Government to correct it; and, should that government deem it needful, no difficulty ought to be anticipated in obtaining from the holders of the concession the requisite consent.

Article III.

This article recognizes that, in order efficaciously to execute its guarantee, the United States should be provided with a necessary base both for military and naval operations, and refers the method of such preparation to a future convention.

The Colombian minister, both in his project and conversation, accepts the principle of this article. He desires to limit its execution by the condition that in time of peace, and when no hostile exigency is apparent to the two governments, the occupation of military positions should be entrusted to the Colombian Government, with such provision for the preservation of war material and fortifications as the United States might desire.

This suggestion would not be unfavorably received if confined to fortifications along the line of construction and perfected in detail by a convention. It could scarcely apply to naval stations, coal depots, or dock-yards, which would from their character have to be held in continuous possession and occupation by the power using them.

But it would seem that there is no important difference on this article. Its principle is recognized by both governments; it contains in itself provision for a convention to regulate details; and it is certain that neither the United States nor Colombia will desire to go to the heavy expense of military preparation without absolute necessity and the fullest opportunity for concerted action.

Article IV.

This article provides that in time of peace the canal shall be free and open to the mercantile marine of all nations, upon payment of tolls and compliance with the regulations which may be established therefor under the supervision and with the consent of the two governments.

This consent of the two governments, as a preliminary to the establishment of tolls and regulations, is supposed to interfere with the right conferred by the concession upon its holders to determine the tolls and make the necessary regulations for the use of the canal.

Still waiving the question whether the consent of the United States to any concession is not made requisite by the thirty-fifth article, and assuming that the tolls and regulations do not infringe upon any right of the Government of the United States secured by the older treaty, this objection might be considered and obviated by an acceptance on the part of the United States of the tolls and regulations as ascertained by the concession, if found reasonable, with the understanding or stipulation, however, that, in case of difference between the holders of the concession and the Colombian Government, the Government of the United States shall be consulted and its consent obtained to any change or settlement.

Article V.

This article provides that the canal is closed, as matter of right, in time of peace and war, to the naval vessels or military transports of all nations, without the consent of the two governments.

It is suggested by the Colombian minister that this is also an infringement of the right secured to the holders of the concession to levy tolls, &c., on the naval vessels of all nations except Colombia.

Article 5 of the concession does not seem to warrant this construction. Why it does not apply to the United States Government has been already stated.

As to other nations, all that article 5 strictly and properly interpreted gives to the holders of the concession, is the right to levy toll upon the war vessels and transports of all nations except Colombia, if they are allowed to pass. But there is no obligation assumed by Colombia that they shall be allowed to pass. That is a question which, as to every nation other than the United States, Colombia must decide according to her interests, and it cannot be supposed that Colombia has in this article so far abdicated not only her sovereignty but her duty to regard what may be great political and territorial interests, as to deprive herself (in connection with her guarantor) of the right forever, under any and all circumstances, of closing the canal in times of peace to all war vessels. If this construction be correct then the right of the holders of the concession to levy tolls, when such vessels pass, is not taken away by the preservation of the right of Colombia to decide that “when.”

Besides which, this article contains a declaration that both governments will agree that the canal shall be open to the harmless use of war vessels in time of peace, subject to such cautionary regulations as they may agree upon. And this would seem to remove the practical difficulty suggested as arising from article 5 of the concession.