States and Great Britain. But the main provisions of these conventions may also be said to constitute rules or principles of the Law of Nations which would operate even in the absence of such agreements. It can at least be said that canals which constitute international highways are free and open to the warships as well as the merchant vessels of all nations in time of peace on terms of entire equality. There should be no discrimination in conditions or charges of traffic and these must be just and equitable.40 The same rights or privileges probably extend to warships for purposes of innocent (i.e. inoffensive) passage even in time of war.
Marginal Sea, Bays or Gulfs, Lakes or Seas, and Straits. -- * Barclay , in 27 1. L. A ( 1912), 81 ff., and in 12 and 13 Annuaire, 104 ff. and 125 ff.; Bluntschli, Arts. 302-10; Bonfils, Nos. 491-511, 516-19; Bower, in 7 (3d ser.) J. C. L. ( 1925), 137 ff.; Bry, Préis élémentaire de droit int. public ( 1906), Nos. 130-37, 139-41; Brown, in 17 A. J. ( 1923), 89-95, and in Proc. Am. Soc. I. L. ( 1923), 15-31; * Bynkershoek , De Dominio Maris ( 1702), cap. 2, and Questionis juris publici ( 1737), I, 1, c. 8;1 Calvo, §§ 353-75; Caratheodory, in 2 Holtzendorff Handbuch, 378-85;* Charteris, in 23 and 27 I. L. A. ( 1908 and 1912).____________________
The control of the Suez Canal by Great Britain rests partly upon her occupation of Egypt and partly upon her ownership of nearly half of the shares in the Suez Canal Co.; that of the United States over the Panama Canal upon the construction and ownership of the Canal, and upon the "grant in perpetuity" by the Republic of Panama of "the use, occupation, and control of a zone of land, and land under water" of the width of ten miles in the Isthmus of Panama. Art. 2 of Treaty of 1903. See Supp. to 3 A. J. ( 1909), 130.
In 1912 Congress passed an Act exempting our coastwise trade from tolls on the Panama Canal. Great Britain protested on the ground that this exemption was a violation of the Hay-Pauncefote Treaty. After considerable controversy, President Wilson (in 1914) finally secured the repeal of the Panama Canal Act.
The main question involved was whether the words "all nations" (who were assured the free and open use of the Canal on terms of entire equality) were susceptible of being interpreted "all nations except the United States."
For legal arguments on both sides of this question, see especially Proc. Am. Soc. I. L. ( 1913), passim. The arguments are briefly summarized by Jones, Caribbean Interests of U. S. ( 1916), ch. 11. For references, see Ibid., 362-66.