EXISTING TREATY TIES ABROGATED

[From the Congressional Record, Oct. 27, 1977-S17863]

THE PANAMA CANAL TREATIES-No. 20

Mr. ALLEN. Mr. President, in one of my earlier speeches to the Senate on the subject of the proposed Panama Canal treaties, I emphasized the fact that one of the major flaws of the proposed treaties, is that the new proposed treaties, rather than building on and modifying our existing treaty relationship with Panama, would wipe out that relationship in its entirety and would, in effect, start out completely anew. Now, certainly there are advantages in a fresh start in almost any project, and I would be the last to insist that it would be impossible to start anew in our dealings with Panama, but, Mr. President, if that course of action is to be followed, then much greater care must be given to preserving the substantive rights of the United States than has been given thus far in this new reordering of the structure of the bilateral rights and obligations now existing between the United States and the Republic of Panama.

But because we have had such close diplomatic ties with Panama since the formation of the Republic of Panama in 1903, in my judgment, regardless of the ultimate outcome, we would still make a grave error and would make our task unnecessarily difficult if we were to abolish in toto all existing treaties, protocols, executive agreements, exchanges of letters, and similar notes, memorandums or other documents bearing on the Panama Canal and on the close ties of the United States with Panama. However, Mr. President, near total abolition is exactly what is contemplated by these proposed treaties.

Article I of the proposed Panama Canal Treaty would in one stroke abrogate virtually every document of significance negotiated with Panama in the past 74 years. Article I would wipe out presumably both the good and the bad without discriminating between the two. Article I would, for example, wipe out the present monopoly the United States enjoys with respect to construction of any canal across the Isthmus of Panama and would leave the Soviet Union or any other third nation free to negotiate with Panama for rights to construct a new sea level canal, either within the present Canal Zone or at some other location in the isthmus. It would leave the Soviet Union or Cuba or some other third nation with which Panama might enjoy particularly cordial relations complete freedom to negotiate even for completion of the third locks canal now lying within the canal and initially worked on by the United States prior to World War II.

So, Mr. President, that is one example of an existing right of the United States which would be destroyed by this wholesale meat-ax abrogation of all existing significant treaty ties with Panama. But there are plenty of other rights now enjoyed by the United States which would be lost, presumably forever. Also among the many and valuable rights now enjoyed by the United States which would be destroyed with the implementation of article I is our present right to deny access to the canal to a belligerent vessel of war or any other vessel which is employed by a belligerent power as a transport or fleet auxiliary. The United States obtained this right in an agreement concluded in 1914 between Robert Lansing, then acting Secretary of State, and Eusebio A. Morales, Ambassador Plenipotentiary for Panama. A protocol of the agreement, the protocol of 1914, was signed at Washington on October 10, 1914, and entered into force on the same day. It is found that 38 Statutes at Large 2042. In pertinent part, Mr. President, the protocol reads as follows:

"Hospitality extended in the waters of the Republic of Panama to a belligerent vessel of war or a vessel belligerent or neutral, whether armed or not, which is employed by a belligerent power as a transport or fleet auxiliary or in any other way for the direct purpose of prosecuting or aiding hostilities, whether by land or sea, shall serve to deprive such vessel of like hospitality in the Panama Canal Zone for a period of three months, and vice versa."

In other words, Mr. President, that is a very diplomatic way of saying simply that if either Panama or the United States decided not to allow the passage

of a belligerent vessel of another nation, then that vessel had best go around the horn because it could be a 3-month wait for passage through the canal. In practical effect, the protocol of 1914 gives to the United States the right to forbid the passage of a vessel belonging to a nation at war with any other nation, and the rights set forth in the protocol, when coupled with the territorial interest of the United States in the Canal Zone, guarantee to the United States the legal authority to deny passage to a belligerent vessel belonging to a nation making war on the United States or on an American ally.

Without this protocol, Mr. President, or without the retention of territorial rights in Panama, the United States could find itself in the ridiculous position of having agreed, as a matter of international law pursuant to these proposed treaties, to permit the passage of warships of a nation attacking this country or of a nation invading an ally of this country. One can almost imagine the grim race which might be conducted by American warships and belligerent vessels of an enemy nation-a race which, if won by the United States, would perhaps entitle the United States to move to the head of the line of merchant vessels but which, in any event, if lost by the United States, would entitle the belligerent vessels equally to free and unimpeded passage through the isthmus. The war and the race could presumably be resumed on the other side.

Mr. President, that cited prospect is obviously farfetched and represents a fact situation which would be, in practice, almost inconceivable. But, Mr. President, the scenario I have described would be, nevertheless, completely permissible within the legal confines of these proposed treaties. Why not be more honest about the matter? Why not lay out on paper exactly what the position of the United States is? Why surrender rights vital to our national security interests while at the same time asserting that we could, through military might, secure the desired result? No, let us be candid with Panama and with ourselves.

We now have the right as a matter of international law to deny passage through the canal to belligerent vessels of other nations. What possible good can I be achieved by setting up the legal fiction that the canal will always remain perfectly neutral and that even in time of a war in which the United States is itself participating, the canal will be available to ships of all nations?

I might point out, Mr. President, that should we in fact adhere at some future date to this legal fiction which would be set abroad in these proposed treaties— should we in fact adhere to the concept that we will guarantee the perfect neutrality of the canal itself in all circumstances-then the United States could find it necessary to tie down in the Caribbean and the Pacific military and naval forces, which might be better utilized elsewhere, solely in order that those forces · could watch the approaches to the Panama Canal.

This argument is not new, and I recognize, Mr. President, that much has changed in naval strategy with the advent of nuclear weapons, but certain basic principles of warfare are going to remain immutable throughout the ages, and certainly in some later war, either conventional or nuclear, in which the United States or an ally of the United States unfortunately might become engaged, in some future unhappy day, we could well expect to see physical control of the Panama Canal as a significant military factor. Prior physical control is the key, because otherwise the United States could face the task of a Normandy-like invasion of the isthmus or the expense and danger of perpetual naval overwatch. So, Mr. President, while we are worried here in the Senate about obtaining an amendment to these treaties to make clear that U.S. warships would have the right of priority passage through the canal, let us not overlook the broader issue of control of the canal during wartime, and let us not overlook this protocol of 1914 which would be quietly wiped out by article I of the proposed Canal Treaty. Let us instead consider protecting our rights to the canal in wartime, and let us consider direct incorporation of the protocol of 1914 into the body of the proposed Canal Treaty so that the protocol may continue in full force and effect in order to guarantee thereby to both Panama and the United States the right to deny effectively the hospitality of the waters of the Republic of Panama or the hospitality of the waters of the Panama Canal Zone to any belligerent vessel of any country. Let us maintain our rights within the legal text of our treaties with Panama and not through the threat of force of arms.

WHEN PRESENT DICTATOR FALLS NEW GOVERNMENT

COULD REJECT TREATIES

[From the Congressional Record, Oct. 28, 1977-S17986]

THE PANAMA CANAL TREATIES-No. 21

Mr. ALLEN. Mr. President, on Tuesday, I talked at some length about the re-pressive character of the Panamanian Government and the impropriety of propping up the current Panamanian dictator through Senate advice and consent toa new treaty relationship which would tend to perpetuate the dictator's regime and which would be rightfully subject to repudiation by a later legitimate Panamanian Government. I emphasized that subsequent repudiation of these proposed treaties by a legitimate Panamanian Government was not in the least conjectural, but was instead a matter of plain record, inasmuch as leading Panamanian exiles have already testified to the House Committee on International Relations that, after the downfall of Dictator Torrijos, these treaties would not be worth the paper on which they are written.

To refresh the memory of Senators on this point, I will quote again from the remarks made before the House committee by Dr. Winston Robles, the chief spokesman for the Panamanian exile community here in the United States. Dr. Robles stated the matter in this fashion:

"Sooner or later the dictator will fall. Then the treaty is going to be rejected by Panamanians and their governments, and all the resentment against the dictatorship will be reflected in future relations between Panama and the United States." Mr. President, Dr. Robles' remarks ought to be heeded. They foretell the great danger for the prospect of long-term friendship with the Republic of Panama and they foreshadow dire problems for the United States should Dictator Torrijos fall from power and thereby cease to be the guarantor of these treaties. The good will of Dictator Torrijos cannot be the linchpin of good relations with the people of Panama.

So, Mr. President, Dr. Robles' remarks ought to be taken into account. Since these treaties depend-and let us face the matter honestly-since these treaties depend only on the word of a smalltime gangster dictator, will we not soon see a vested interest in guaranteeing that this same smalltime dictator remains in power, or that his successor regime remains in power, in perpetuity? Do we not run the risk of ratifying these treaties of becoming in perpetuity the champions of a repressive government, rather than the consistent and active proponents of human rights in Panama, in the United States, and in all countries? Certainly, even a casual student of these proposed treaty arrangements would recognizethat the United States, after ratification of these treaties, would have a heavy stake in seeing continued the Torrijos dictatorship, since virtually every provision of significance does depend on the continuance in power of the military regime now dominating Panama.

This latter point has not been lost on commentators who have followed this debate. Last Friday, the Washington Star carried a particularly perceptive editorial by Charles Bartlett which was entitled, "The Case for Delay on Panama." Mr. Bartlett suggests a third alternative to ratification or rejection of the Panama Canal treaties. Of course, Mr. President, in my judgment, these treaties should be promptly rejected, out of hand and without embarrassment, becausethese treaties are so laden with substantive and technical defects as to make them unworthy of favorable action in the Senate and, indeed, except for the gravity of the situation, unworthy even of efforts to correct by amendment the many obvious errors and the even more numerous latent flaws. But, Mr. President, notwithstanding my own opinion on this subject, I do feel that the third option suggested by Mr. Bartlett should receive close scrutiny inasmuch as his suggestion would at least prevent the United States from assuming the role of guarantor of the Torrijos dictatorship, one of the most repressive regimes ever to govern a nation in the Western Hemisphere. Mr. Bartlett suggests simply that the Senate defer action on the Panama Canal treaties until Torrijos loosens his death grip on the people of Panama.

Mr. President, Charles Bartlett describes his idea-and this may well, indeed, also be the idea of others, including some Members of the Senate—he describes his idea in this fashion:

"This strategy contemplates a delay as long as the three years which preceded Senate approval of the 1936 treaty. It has its roots in varied doubts on the character and intentions of President Omar Torrijos."

Mr. Bartlett apparently feels that delayed action on the treaties could cause some semblance of basic human rights to be reestablished in Panama. I, for one, believe it will take more than a delay in ratification of these treaties to reestablish democracy in Panama, but perhaps delay would cause some steps in the right direction to be initiated. In reviewing the recent public relations offensive launched by Dictator Torrijos, Mr. Bartlett seems to doubt that any significant steps have in fact been taken by the dictator to improve human rights in Panama, and he notes that the so-called free debate which preceded the plebiscite held last Sunday "could be the start of a new era or a mere gesture to propitiate the U.S. Senate." Mr. Bartlett rightfully suspects this plebiscite was held strictly for stage effect here in the United States, and in further discussing the dim prospects for real progress in improving human rights in Panama, he goes on to point out the following:

"The signs are not encouraging, Gerardo Gonzalez, the former Communist leader who is now Torrijos' vice President, has asserted in recent days that Panamanians would not have had a new treaty if they had persisted in "the farce which in the past they considered democracy." He termed elections "a complex and repudiated system which divided Panamanians into groups."

So, Mr. President, the Vice President of Panama, Gerardo Gonzalez, a former Communist, is not impressed with an electoral process which tends to divide voters into groups-presumably into groups not enamored of Torrijos' proMarxist regime. Former Communist Gonzales-I assume he is no longer a Communist because that is what Mr. Bartlett reports-former Communist Gonzalez would undoubtedly prefer to see these treaties promptly ratified here in the Senate without delays so that the pro-Marxist regime now in power can fully consolidate its authority on the cash and prestige thereby bestowed. This last factor is also noted by Mr. Bartlett, who describes the matter this way:

"If the treaty is ratified and the government begins to draw the $80 million per year which it anticipates in tolls and fees, the regime will have no further need to consider democratization. The national guard, already badly corrupted in the top ranks, will be expanded to snuff out the last resistance to a left-wing dictatorship.

*

"The great virtue of delay is that it will oblige Torrijos to show more of his hand. "I am one of the most radical of men," he has been saying in Europe. He has certainly been radical in visiting upon a small republic such authoritarian exotica as torture, forced expatriations and a blackout of free expression. Relentless greed is his only major shortcoming as a hardline Marxist."

Mr. Bartlett concludes with this thought:

"A Marxist dictatorship would be a poor epitaph for the sage of America's role in Panama, and the best hope of avoiding it may be foot-dragging by the Senate." Indeed, Mr. President, perpetuation of a Marxist, pro-Castro dictatorship in Panama is not a result many Members of the Senate, if any, would wish to see as our country's crowning achievement in the Isthmus of Panama, and I do, therefore, respectfully commend to my colleagues for active consideration Mr. Bartlett's thesis that prolonged delay-perhaps delay on the order of the Senate's wise and lengthy consideration of the genocide treaties-prolonged delay of that -order might be the best method of stimulating Panama's political evolution toward freedom and might, additionally be the best way of preserving the national security interests of the United States in this strategic and vital waterway.

Mr. President, I yield back the remainder of my time and I suggest the absence of a quorum.

Mr. ROBERT C. BYRD. Mr. President, will the Senator withhold his suggestion? Mr. ALLEN. I am delighted to.

Mr. ROBERT C. BYRD. I believe the Senator from Wyoming is ready to proceed under his order.

Mr. HANSEN. Mr. President, first, let me compliment the distinguished Senator from Alabama for his very perceptive observations and comments this morning. I hope that Senators will take time to read in the RECORD what our good friend from Alabama has so succinctly observed this morning.

Mr. ALLEN. I thank the distinguished Senator.

NO PRIORITY TRANSIT OF U.S. WAR VESSELS

[From the Congressional Record, Nov. 1, 1977-S18295]

THE PANAMA CANAL TREATIES-NO. 22

Mr. ALLEN. I thank the chair. Mr. President, on October 19, 1977, the subject of my Panama Canal talk-and I might say that was my 21st talk on this subject-was the visit to the White House made recently by Panamanian Dictator Omar Torrijos. I discussed in detail the lack of clarity in the unsigned joint communique issued at the conclusion of the dictator's visit, and I pointed out its failure to resolve any of the many ambiguities in the proposed Panama Canal treaties.

Specifically, Dictator Torrijos and President Carter had discussed the right of the United States to intervene in Panama to defend the canal after 1999and the right of U.S. naval vessels to priority passage. As I explained in my remarks at that time, the so-called agreement reached by the two leaders has done virtually nothing to clarify existing ambiguities in both areas and, in fact, would further cloud both issues by introducing additional conflict in the separate interpretations of these treaty provisions by the two governments.

Of course, Mr. President, former Ambassador Linowitz and other administration spokesmen have either asserted or implied that the United States does have the right to intervene in Panama to protect the neutrality of the canal and that U.S. warships do have the right of priority transit of the Isthmus of Panama. These assertions have been made, Mr. President, notwithstanding the words of the treaties which seem certainly to indicate otherwise. In other words, Mr. President, former Ambassador Linowitz and other proponents of the treaties have insisted that the treaties have a meaning which would be viewed favorably here in the Senate and which might be acceptable to the people of the United States, but, Mr. President, unfortunately for proponents of these treaties, the Panamanians have refused to lie low while the documents are being sold up here in the United States. The Panamanians have been quite frank in stating their interpretations. In fact, Mr. President, starting back in August-in fact, on August 10, 1977, and again on August 24, 1977-Panama's chief treaty negotiator, Dr. Romulo Escobar Bethancourt, choose to publicize in Panama the exact limitations on the rights of the United States to take military action to protect the canal and to maintain its neutrality and on the rights of U.S. war vessels to priority passage. Fortunately. Dr, Escobar's remarks were subsequently made available to the Senate and have served to highlight the differing interpretations given to these very important defense provisions. Senators read with some amusement Dr. Escobar's rather indelicate comment:

"If the gringos

Referring to the United States

"If the gringos with their warships say, 'I want to go through first,' then that is their problem with the other ships."

Indicating that Dr. Escobar felt confident that we had no right of priority passage. That was not very diplomatic, Mr. President, but certainly clear in its meaning. Here we have expressed in no uncertain terms exactly how the Panamanians would view this so-called right of expeditious passage which has been trumpeted by certain of our treaty negotiators as a great diplomatic achievement. Similarly, Mr. President, we learned from Dr. Escobar's remarks-as early as August 10, 1977, back before we had even been told what was in the treatiesthat Panama agreed to United States intervention to defend the canal only in the event such intervention was directed against "third countries"-not against Panama. We were even more baffled when we learned that former Ambassador Linowitz on the same day refused to comment on or to correct Dr. Escobar's assertion.

So, Mr. President, these differing interpretations, have been in the works for some time now; in fact, these differences were quite evident even preceding