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view of what these people think, after the fact, of the original HayPauncefote Treaty, and so forth; and not treaties that we have since allowed in the goodness of our heart. Never having been an aggressor or seized for the purpose of seizing, but rather in the spirit of having taken over a defunct canal and indeed having reassured Colombiawhich probably would be the Republic of Panama had we not interceded—and performed the engineering feat and the medical feats that went along with the canal construction and which have maintained my interest, along with my appointment, of many of the Commissioners when I was in the position of Assistant Surgeon General U.S. Army in the Medical Department during World War II; and deal not from what they would like in retrospect or after the fact, but the conceded basis of the original grant in order to get us to perform what we accomplished at that time.
I think in the interest of the world and in the interest of the hemispheric defense that the subsequent treaties and the negotations back and forth are not pertinent, of course they would like to deny sovereignty to us but the fact remains that in the beginning it was clearly established as ours, and as I understand it in legal writ was never set out more clearly than in this instance.
Mr. MORSE. The exchange I just read you was in 1904, it is not very recent.
Mr. Hall. As you know, there have been additional treaties or agreements, concessions since that time. Mr. MORSE. Yes.
Mr. Hall. Gentlemen, I have been there repeatedly. I know how we use it for defense purposes. These have been lessened in keeping with the one world spirit in which we must live and sit down as men of reason and negotiate but I would hope that I can inspire you with the spirit of necessity and that we won't be led astray in these negotiations and that you will make your very important influence felt.
We need no further treaties if we are going to build at their request and in their territory additional canals. I have very real reservations about that as a student of the Canal Zone and as an environmentalist and as a physician and so forth and so on. There is adequacy in updating and modernizing the canal within our own zone with their cooperation and help, and let's maintain our sovereignty which is vital to entire hemispheric solidarity.
Mr. MORSE. Thank you very much, Dr. Hall. You have helped me considerably. Thank you.
Mr. FASCELL. Thank you very much.
Mr. FASCELL. Our next witness is the distinguished Representative from the State of Indiana who is a cosponsor of one of the pending resolutions; namely H. Res. 375, the Honorable David W. Dennis.
STATEMENT OF HON. DAVID W. DENNIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF INDIANA Mr. DENNIS. Mr. Chairman, gentlemen of the committee, the strategic, military and commercial importance of the Panama Canal to the
United States is self-evident from even a cursory glance at the map. History discloses, moreover, that it was our foresight, industry, ingenuity and expenditures which made the canal possible and which have maintained it until today.
The existence of the canal, the direct payments received and the presence of American installations and personnel are of obvious and great economic importance to the Republic of Panama. Panamanian pride and susceptibilities are understandable, as is our own desire to be popular in the hemisphere—a thing which, if truly achievable, would, of course, be of some practical advantage.
None of these considerations, however, should lead us to sacrifice basic, obvious, and important American interests in the Panama Canal. It is the clear duty of any American administration to put American interests first.
It is my own firm conviction, moreover, that friendship neither should nor can be purchased by unjustifiable concessions, and that justice—which most definitely has to include justice to ourselves-is the only firm or lasting basis for true cooperation and understanding. Anything other or less than this may buy us a false and smiling lip service which, be assured, will inevitably be accompanied by an unexpressed but inward contempt on the part of the other party to the bargain.
I am pleased to note that, according to the memorandum entitled "Background on Panama Canal Treaty Negotiations" recently furnished to Members of the Congress by the Department of State, it appears to be the position of our Government that we will not yield on continued U.S. control and defense of the Panama Canal.
It is not at all clear to me, however, how control and defense can be maintained if sovereignty and jurisdiction are yielded; and it seems to me very unwise for us to needlessly create a situation where, by reason of some whole or partial extension of Panamanian sovereignty or jurisdiction, the Government of Panama could, with any shadow of validity, lay claim to some right to participate in or direct the vital matters of actual control and defense.
Neither do I see where the creation of such an anomalous situation could be of any real benefit to the Republic of Panama while, in a time of crisis, it could readily pose difficulties for us. In such a time I would hope, and I believe, that we would proceed to do what was needful; but we might have to do it over legal and diplomatic objections for which no viable basis would seem at present to exist, but which we would have created by our own soft-minded willingness to take counsel of Panamanian susceptibilities.
We consider here a very important matter. I submit that we must be frank and honest as we assess the situation. So doing we must concede, in the light of history, that there can be no real assurance of the stability or
of the future political complexion or character of the Government of Panama. Suppose a Castroite-type of regime one day takes over in Panama. Are we prepared to prevent it? If not, are we prepared to share sovereignty and jurisdiction over the Canal Zone with a regime of this character?
These are not academic questions; and I submit that the best answer is to avoid the worst of the dilemma by retaining for ourselves alone the sovereignty and jurisdiction which we now enjoy, and from which undoubted rights of control and defense axiomatically arise.
As to financial arrangements with Panama, while again advocating a realistic and fair-minded approach. I would nonetheless be generous, and generous even to a fault. This is a generosity the United States can well afford. We cannot, however, afford the prodigal sacrifice of a lifeline of American commercial enterprise and national defense; and, in my judgment, we would we well advised to make this very clear from the outset of negotiations.
This position may not cause us to be loved—which is not a thing, in any case, to be expected. It will, however, cause us to be respected; a more desirable thing, and one which is attainable.
The consequences of such a forthright stand, in my judgment, will be far less difficult, dangerous, and unpleasant, than would be those resulting from a needless surrender of our sovereign rights in the Panama Canal.
Mr. Chairman, the foregoing will, I believe, serve as a general statement of principles applicable to this important problem. I think that I should not close, however, without stating to the committee that I am aware of the fact that there is, and long has been, controversy as to the nature, existence and extent of U.S. sovereignty in the Canal Zone.
The fundamental treaty between our country and the Republic of Panama--the Hay-Bunau-Varilla Treaty of 1903—provides an article II thereof, as follows:
The Republic of Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed.
Article III of this treaty provides: The Republic of Panama grants to the United States all the rights, power and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority.
The Panamanian position has been, and is, as I understand it, that this language operates to grant only some sort of a limited jurisdiction dealing with construction, maintenance, operation, and protection of the canal, and that the words "if it were sovereign," in article III, imply that the United States is, in fact, not sovereign in the Canal Zone.
Responsible American officials have also recognized, on occasion, that this form of grant implies that a “titular” sovereignty remains in Panama.
The United States has always maintained, however, that all of the actual powers and attributes of sovereignty were and are granted to us by this treaty and are to be exercised by us alone; and the continued existence of these same American rights has been recognized by both parties in and by the modifying treaties of 1936 and 1955.
When it is considered that, under the treaty, we are granted "in perpetuity” the “use, occupation, and control” of the Canal Zone, and
further that we are granted "all the rights, power, and authority.” within the Zone "which the United States would possess and exercise if it were sovereign,” and this “to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights,” it seems very clear that, wherever “titular" sovereignty may reside, the full attributes of sovereignty are ours, and that any sovereign rights exercised in the Panama Canal Zone must be exercised solely by the United States.
Any argument, therefore, regarding the locus or existence of some "titular" sovereignty seems to be largely academic, and the considerations already advanced in favor of the retention of existing American sovereignty over the canal remain entirely appropriate.
Clearly, I submit, it is the rights, the power, and the authority of sovereignty which alone make sovereignty valuable. These rights we unquestionably have; and it is shocking that we should seriously consider their surrender, either to any other nation, or to any international organization or authority.
Mr. FASCELL. I thank the gentleman and I particularly appreciate him getting to what I consider the crux of the whole dispute. You have made a very cogent presentation.
In light of your own discussion and based on what you have just stated, I am immediately drawn to the proposition that the whole question was ducked in the treaty. I know the gentleman is a distinguished lawyer so we don't have to play around with the use of words and who intended what. You tell me in your opinion whether or not in the language of the treaty they didn't duck the whole question of who owns the land.
Mr. DENNIS. Of course I was not there, Mr. Chairman.
Mr. DENNIS. I think it is entirely possible. This is just kicking around thinking, but it is quite possible that neither party really wanted to come to the mat with that.
Mr. FASCELL. They didn't want to come to grips with it?
Mr. FASCELL. I am with you as far as the attributes of the sovereign in terms of the sole exercise of the power. I don't think there is any question about that. I think the whole issue boils down simply to who owns the land. That is just my opinion based on a quick analysis of the issue which you presented so ably.
If that is the case, what is the meaning of the United States unilaterally authorizing or allowing the Panamanians to fly the Panamanian flag ? That is an act of sovereignty over that land? What does that mean legally or diplomatically if we have to resort to force or world opinion or some international court?
Mr. DENNIS. It seems to me, Mr. Chairman, that when we have a question as to sovereignty which is rather debatable and not clearly drawn that
Mr. FASCELL. Might as well take your best position and hang on.
Mr. DENNIS. It would be a mistake, I would say as a lawyer, or anyone, I think, would say, to concede such a thing, for instance, as flying the Panamanian flag; which, it would certainly be argued, was a recognition on our part that the sovereignty was there. Now I certainly would not do it but I come back to the main thrust of my argument which is, that we have everything that makes sovereignty worthwhile.
Now let's say, for the sake of argument, that because we don't absolutely own the land that perhaps article IV that Dr. Hall refers to does not apply and that the Senate can do this by a treaty. I am saying they should not do it; but whatever we have is valuable, it is the only thing that makes sovereignty worthwhile, and why surrender it and throw it away when we have it? That is why I think both Houses of the Congress, at least are certainly entitled to express our sense and feeling that that is a thing that should not be done.
Mr. FASCELL. I have felt for a long time that we ought to do something about changing that constitutional provision on ratification. I have given some thought to it and I think the time has come when all of us ought to look at this more closely. We should resubmit the entire matter to the American people and let's see if we cannot get into the 20th Century on it.
Mr. MAILLIARD. I want to join the chairman in saying I think our colleague has laid it out very plainly here. I don't know whether there is anything comparable in domestic law but it would seem to me if I were allowed all the privileges of ownership and they were denied to anybody else that it is just as good as if I own it.
Mr. DENNIS. I would say so. That is nothing to throw away.
Mr. MAILLIARD. The question of implementing legislation being required, I think the precedent has pretty well been established after the 1955 treaty that it was necessary to pass implementing legislation to carry out the provisions of the treaty and we did do it. So I would hope that precedent would prevail here.
Mr. DENNIS. I think that is a good point.
There is one question in my mind though as to the difference in one section. You referred in some instances to sovereign rights exercised in the Panama Canal Zone and in others the exercise of that sovereignty over the canal. We are dealing with two things, the canal and the canal zone. As I understand, most of the negotiations are going forward based upon our position or this country's position that we should definitely operate the canal, that we should have the right of expansion and that we should have the right to defend but no more than is necessary to do those things.
Mr. DENNIS. Well, I think there is probably some truth to that. I don't think we have ever, as far as I know, completely given up on the idea that we should defend and operate and so on, but under these treaties which were proposed a couple of years ago, as I remember just looking at them briefly, we were actually going to transfer management of the canal and government of the zone to an international authority made up of-I forget what it was called.
— Mr. FASCELL. It was a binational commission.