Note 325 — Chapter I · STATE TERRITORY

This does not mean that the United States have a right permanently to fortify the canal. Such a right has likewise been deduced from article 23 of the Hay-Varilla Treaty of November 18, 1903, which runs:—"If it should become necessary at any time to employ armed forces for the safety or protection of the canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the right, at all times in its discretion, to use its police and its land and naval forces or to establish fortifications for these purposes." However, it would seem that by this article 23 only temporary fortifications are contemplated. On the other hand, if read by itself, article 3 of the Hay-Varilla Treaty, according to which the Republic of Panama grants to the United States all the rights, power, and authority which the United States would possess and exercise if she were the sovereign of the territory concerned, could be quoted as indirectly empowering the United States to fortify the Panama Canal permanently. But the question is whether article 3 must not be interpreted in connection with article 23. The fact that article 23 stipulates expressly the power of the United States temporarily to establish fortifications would seem to indicate that it was intended to exclude permanent fortifications. The question of the fortification of the Panama Canal is discussed by Hains (contra) and Davis (pro) in A.J. III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough, and Kennedy in A.J. V. (1911), pp. 298, 615, 620.