These five subjects were Constantinople, the Dardanelles, The In the month of June, 1877, the Russian Prime Minister wrote a reply to the note of the English Foreign Secretary, in which, among other matters, he states that Russia considered that so important a maritime passage as the Dardanelles, forming the connecting link between the Black Sea and the Mediterranean, must always be regulated by an international agreement, and not by any one Power alone. At the Congress which produced the recent Treaty of Berlin, the subject of the Dardanelles was introduced in an unsatisfactory manner. It was stated in Article LXIII. of the Treaty of Berlin that the Treaty of Paris of 1856, as well as the Treaty of London of 1871, are maintained in all such of their provisions as are not abrogated or modified by the preceding stipulations. The Treaty of Berlin contains no Article which, in direct and specific terms, mentions the authority of the Porte or of any other Power on the subject of the passage of the Dardanelles and the Bosphorus. At nearly the end of the Congress Lord Salisbury (n) wrote to her Majesty's Principal Secretary of State as follows: "Berlin, July 11, 1878. "Sir, I have the honour to enclose a copy of a declara"tion which I placed upon the Protocol with reference to "the closing of the Straits to vessels of war. "The Second Article of the Treaty of London reserves "to his Imperial Majesty the Sultan 'power to open the "said Straits in time of peace to the vessels of war of friendly and allied Powers, in case the Sublime Porte "should judge it necessary in order to secure the execution 66 (m) Lord Derby, writing to Count Schouvaloff, May 6, 1877, considers this question as "foremost " among English interests. (n) Correspondence relating to the Congress of Berlin, with the Protocol of the Congress, laid before Parliament, 1878, p. 214. 66 66 66 66 : 6 "of the stipulations of the Treaty of Paris.' But the stipulations of the Treaty of Paris will be materially "modified by the Treaty of Berlin. The precise circum"stances, therefore, which would be held to justify the "Sultan in opening the Straits to his allies are left in some ambiguity. The proposed Article, to the effect that the "Treaties of Paris and Londou shall be maintained in all "such of their provisions as are not abrogated by the Treaty "of Berlin,' will not furnish a complete solution of the difficulty for there are important provisions in the Treaty "of Berlin, connected with modifications of that part of the Treaty of Paris which concerns the Black Sea, which may "not necessarily be construed as taking the place of the Treaty of Paris for the purposes of Article II. of the "Treaty of London. The provision that Batoum is to "remain essentially a commercial port is an instance in point. Doubts might hereafter be raised whether the "Treaty of Berlin and the Treaty of Paris had been so incorporated that a breach of this stipulation would be "such a violation of the Treaty of Paris as would justify "the Sultan in opening the Black Sea to his allies. The "Congress, which was approaching the term of its labours, "was disinclined to enter into the discussion of a question "difficult in its character, and upon which protracted controversy would probably have arisen. Under these cir"cumstances I thought it necessary to reserve to England a general liberty of interpreting according to the spirit of existing Treaties the engagements which Article LXIII. "of the Treaty of Berlin will create. 6: 66 66 66 66 The following passages are taken from the Protocols of the Berlin Congress : "With regard to the paragraph relating to the Treaties of "Paris and London, Lord Salisbury remarks that at first 66 66 sight, at a preceding sitting, he had stated that he was not "satisfied with the wording of this Article. These appre"hensions are now partly set at rest by the explanations "offered to the Congress: his Excellency confines himself "to-day to asking that the following declaration, which is binding only on his Government, may be inserted in the "Protocol: Considering that the Treaty of Berlin will " modify an important part of the arrangements sanctioned "by the Treaty of Paris of 1856, and that the interpreta"tion of Article II. of the Treaty of London, which is dependent on the Treaty of Paris, may thus become a "matter of dispute; I declare on behalf of England that "the obligations of her Britannic Majesty relating to the "closing of the Straits do not go further than an engage"ment with the Sultan to respect in this matter his Majesty's independent determinations in conformity with "the spirit of existing Treaties' (o). 66 66 "Count Schouvaloff reserves the right of inserting in the "Protocol a counter-declaration, if necessary." He afterwards exercised this right; for it appears from the Protocol of the next and last sitting but one of the Congress, "Count Schouvaloff, referring to the declaration "made in the preceding sitting by Lord Salisbury on the "subject of the Straits, demands the insertion in the Pro"tocol of a declaration on the same subject presented by "the Plenipotentiaries of Russia: The Plenipotentiaries "of Russia, without being able exactly to appreciate the "meaning of the proposition of the second Plenipotentiary (0) Correspondence relating to the Congress of Berlin, &c., laid before Parliament, 1878, p. 270; Protocol, 18; Sitting of July 11, 1878. Ib. p. 213: "Considérant que le Traité de Berlin changera une partie importante des arrangements sanctionnés par le Traité de Paris de 1856, et que l'interprétation de l'Article II du Traité de Londres qui dépend du Traité de Paris peut ainsi être sujet à des contestations: "Je déclare de la part de l'Angleterre que les obligations de sa Majesté Britannique concernant la clôture des Détroits se bornent à un engagement envers le Sultan de respecter à cet égard les déterminations indépendantes de sa Majesté Impériale, conformes à l'esprit des Traités existants." "of Great Britain respecting the closing of the Straits, "restrict themselves to demanding, on their part, the "insertion in the Protocol of the observation, that, in their opinion, the principle of the closing of the Straits is an "European principle, and that the stipulations concluded in "this respect in 1841, 1856, and 1871, confirmed at present "by the Treaty of Berlin, are binding on the part of all "the Powers, in accordance with the spirit and letter of the existing Treaties, not only as regards the Sultan, but also "as regards all the Powers signatory to these transac"tions"" (p). So the matter ended as far as the Congress at Berlin was concerned. One of all the Powers announced a particular exposition of a portion of the Treaty about to be made, "binding only on his Government." It would be difficult. to maintain that this exposition in a Protocol can affect the plain meaning of Article LXIII. of the Treaty. CCVI. There is another class of enclosed seas to which the same rules of law are applicable-seas which are landlocked, though not entirely surrounded by land. Of these, that great inlet which washes the coasts of Denmark, Sweden, Russia, and Prussia, the Ostsee as the Germans call it, the Baltic Sea according to its usual appellation, is the principal (9). (p) Correspondence relating to the Congress of Berlin, &c., laid before Parliament, 1878, pp. 277, 243: "Les Plénipotentiaires de Russie, sans pouvoir se rendre exactement compte de la proposition de M. le Second Plénipotentiaire de la Grande-Bretagne concernant la clôture des Détroits, se bornent à demander de leur côté l'insertion au Protocole de l'observation, qu'à leur avis, le principe de la clôture des Détroits est un principe européen, et que les stipulations conclues à cet égard en 1841, 1856, et 1871, confirmées actuellement par le Traité de Berlin, sont obligatoires de la part de toutes les Puissances, conformément à l'esprit et à la lettre des Traités existants, non-seulement vis-à-vis du Sultan, mais encore vis-à-vis de toutes les Puissances signataires de ces transactions." (q) Heffters, 143, n. 2. CHAPTER IX. PECULIAR CASE OF THE ISTHMUS OF CENTRAL AMERICA. CCVII. The most remarkable, and perhaps the most important, instance of the establishment of the jus transitûs innoxii is afforded by the recent Convention between Great Britain and the United States respecting the Isthmus of Central America, which connects the great highways of the world, the Atlantic and Pacific Oceans. The Treaty concerns the formation of a ship-canal, or of a railway over this strip of land. This Treaty, both on account of its immediate object, and the principle which it expressly recognizes and recites, is of such vast importance, both to the present and future interests of mankind, that it is necessary to state the provisions in extenso. 66 The preamble set forth that, "Her Britannic Majesty "and the United States of America being desirous of consolidating the relations of amity which so happily subsist "between them, by setting forth and fixing in a Convention "their views and intentions with reference to any means of "communication by ship-canal, which may be constructed "between the Atlantic and Pacific Oceans by the way of the "river St. Juan de Nicaragua, and either or both of the "lakes of Nicaragua or Managua, to any port or place on "the Pacific Ocean," &c. The Articles were as follows:-" Art. 1. The Govern"ments of Great Britain and the United States hereby de"clare that neither the one nor the other will ever obtain or “maintain for itself any exclusive control over the said ship"canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity 66 |