SECTION 2. _in Other Waters_

In Other Waters

THE SUEZ CANAL

Sir,--Your correspondent "M.B." has done good service by calling attention to the misleading nature of the often-repeated 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 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, T. E. HOLLAND. Brighton, October 4 (1898).

THE SUEZ CANAL

Sir,--Your correspondent "M.B.," if he will allow me to say so, supports this morning a good case by a bad argument, which ought hardly to pass without remark.

It is impossible to accept his suggestion that the article which he quotes from the Treaty of Paris can be taken as containing "an international official definition of neutralisation as applied to waters." The article in question, after declaring the Black Sea to be "neutralisée," no doubt goes on to explain the sense in which this phrase is to be understood, by laying down that the waters and ports of that sea are perpetually closed to the ships of war of all nations. It is, however, well known that such a state of things as is described in the latter part of the article is so far from being involved in the definition of "neutralisation" as not even to be an ordinary accompaniment of that process. Belgium is unquestionably "neutralised," but no one supposes that the appearance in its waters and ports of ships of war is therefore prohibited. The fact is that the term "neutralisée" was employed in the Treaty of Paris as a euphemism, intended to make less unpalatable to Russia a restriction upon her sovereign rights which she took the earliest opportunity of repudiating.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, October 6 (1898).

THE SUEZ CANAL

Sir,--Will you allow me to reply in the fewest possible words to the questions very courteously addressed to me by Mr. Gibson Bowles in his letter which appeared in The Times of yesterday?

1. It is certainly my opinion, for what it is worth, that the full operation of the Convention of 1888 is suspended by the reserves first made on behalf of this country during the sittings of the Conference of 1885. These reserves were texually repeated by Lord Salisbury in his despatch of October 21, 1887, enclosing the draft convention which, three days later, was signed at Paris by the representatives of France and Great Britain, the two Powers which, with the assent of the rest, had been carrying on the resumed negotiations with reference to the canal. Lord Salisbury's language was also carefully brought to the notice of each of the other Powers concerned; in the course of the somewhat protracted discussions which preceded the final signature of the same convention at Constantinople on October 29, 1888.

2. All the signatories of the convention having thus become parties to it after express notice of "the conditions under which her Majesty's Government have expressed their willingness to agree to it," must, it can hardly be doubted, share the view that the convention is operative only sub modo.

3. Supposing the convention to have become operative, and supposing the territorial Power to be neutral in a war between States which we may call A and B, the convention would certainly entitle A to claim unmolested passage for its ships of war on their way to attack the forces of B in the Eastern seas.

4. The language of the convention, being as it, is the expression of a compromise involving much re-drafting, is by no means always as clear as it might be. But when Mr. Gibson Bowles is again within reach of Blue-books he will probably agree with me that the treaty need not, as he suggests, be "read as obliging the territorial Power, even when itself a belligerent, to allow its enemy to use the canal freely for the passage of that enemy's men-of-war." The wide language of Art. 1 (which is substantially in accordance with Mr. Gibson Bowles's reminiscence of it) must be read in connection with Art. 10, and without forgetting that, in discussing the effect of an attack upon the canal by one of the parties to the convention, Lord Salisbury wrote in 1887, "on the whole it appears to be the sounder view that, in such a case, the treaty, being broken by one of its signatories, would lose its force in all respects."

Your obedient servant, T. E. HOLLAND. Oxford, October 9 (1898).

THE CLOSING OF THE DARDANELLES

Sir,--Now that the pressure upon your space due to the clash of opposing views of domestic politics is likely to be for the moment relaxed, you may, perhaps, not think it inopportune that attention should be recalled to a question of permanent international interest raised by the recent action of the Turkish Government in closing the Dardanelles to even commercial traffic.

I cordially agree, as would, I suppose, most people, with your leading article of some weeks since in deprecating any crude application to the case of the Dardanelles and Bosporus of dicta with reference to freedom of passage through straits connecting two open seas. It would, indeed, be straining what may be taken to be a general principle of international law to say that Turkey is by it prohibited from protecting her threatened capital by temporarily closing the Straits.

A good deal of vague reference has, however, been made in the discussions which have taken place upon the subject to "Treaties" under which it seems to be thought that trading ships enjoy, in all circumstances, rights of free navigation through the Straits in question which they would not have possessed otherwise. I should like, therefore, with your permission, to state what seem to be the relevant Treaty provisions upon the subject, whether between the Powers constituting the European Concert collectively, or between Russia and Turkey as individual Powers.

As to what may be described as the "European" Treaties, it is necessary, once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris of 1856 and its annexed Convention; Art. 2 of the Treaty of London of 1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878. These articles have exclusive reference to the "ancient rule of the Ottoman Empire," under which, so long as the Porte is at peace, no foreign ships of war are to be admitted into the Straits. There are, however, two articles, still in force, of these "European" Treaties which may seem to bear upon the present inquiry. By Art. 12 of the Treaty of Paris:--

"Free from any impediment, the commerce in the ports and waters of the Black Sea shall be subject only to regulations of health, Customs, and police, framed in a spirit favourable to the development of commercial transactions."

And by Art. 3 of the Treaty of London:--

"The Black Sea remains open, as heretofore, to the mercantile marine of all nations."

It is submitted that these provisions relate solely to commerce carried on by vessels already within the Black Sea, and contain no covenant for an unrestricted right of access to that sea.

As between Russia and Turkey individually, Treaties which are still in force purport, no doubt, to give to the former a stronger claim to free passage through the Straits for her mercantile marine than that which can be supposed to be enjoyed by other Powers. By Art. 7, for instance, of the Treaty of Adrianople of 1829, the Porte recognises and declares the passage of the "Canal de Constantinople," and of the Strait of the Dardanelles, to be entirely free and open to Russian merchant vessels; and goes on to extend the same privilege to the merchant vessels of all Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is still more explicit, providing that "the Bosporus and Dardanelles shall remain open in time of war as in time of peace to the merchant vessels of neutral States arriving from or bound to Russian ports." The rest of the article contains a promise by the Porte never henceforth to establish a "fictitious blockade, at variance with the spirit of the Declaration of Paris"; meaning thereby such a blockade of ports on the Black Sea as had been enforced by Turkish ships of war stationed at the entrance to the Bosporus.

It may well be doubted whether these articles, containing concessions extorted from Turkey at the end of wars in which she had been defeated, ought not, like so many other provisions of the Treaty of San Stefano, to have been abrogated by the Treaty of Berlin. They are of such a character that, in the struggle for existence, Turkey can hardly be blamed for disregarding them. As was said long ago, "Ius commerciorum aequum est, at hoc acquius, tuendae salutis." The imperious necessities of self-preservation were recognised both by Lord Morley and by Lord Lansdowne in the debate which took place on May 3, although Lord Lansdowne intimated that

"the real question, which will have to be considered sooner or later, is the extent to which a belligerent Power, controlling narrow waters which form a great trade avenue for the commerce of the world, is justified in entirely closing such an avenue in order to facilitate the hostile operations in which the Power finds itself involved."

It is, I think, clear that the solution of a question at once so novel and so delicate must be undertaken, not by any one Power, but by the Concert of Europe, or of the civilised world, which must devise some guarantee for the safety of any littoral Power which would be called upon in the general interest to restrict its measures of self-defence. In the meantime, we may surely say that the case is provided for neither by established international law nor by "European" Treaties; and, further, that the Treaties between Russia and Turkey, which do provide for it, are not such as it is desirable to perpetuate.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 22 (1912).

THE CLOSING OF THE DARDANELLES

Sir,--I am reminded by Mr. Lucien Wolf's courteous letter that I ought probably to have mentioned, in alluding to the Treaty of San Stefano, that it is doubtful whether Art. 24 of that Treaty is in force. It was certainly left untouched by the Treaty of Berlin, but the language of the relevant article (3) of the definitive Treaty of Peace of 1879 is somewhat obscure, nor is much light to be gained upon the point from the protocol of the 14th séance of the Congress of Berlin, at which Art. 24 came up for discussion.

The earlier Treaties, however, which were revived beyond question by Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full rights of passage between the Black Sea and the Ægean, exercisable, for all that appears, in time of war as well as of peace, although these Treaties contain no express words to that effect. Such rights, I would again urge, if enjoyed by one Power, should be enjoyed by all; upon terms to be settled, not by any pair of Powers but by the Powers collectively.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 5 (1912).

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