[From the Congressional Record-Senate, Apr. 18, 1978]

THE PANAMA CANAL TREATY

Mr. ROBERT C. BYRD. Mr. President, the final hour of debate on the Resolution of Ratification for appoval of the treaties will begin at 5 p.m. today.

UNANIMOUS-CONSENT AGREEMENT

Mr. President, I ask unanimous consent that if there is any time prior to 5 o'clock that is available for debate, in other words, if time has been saved prior to that time, prior to the hour of 5, so that a few minutes exist, in addition to the 1 hour, that those minutes be equally divided and placed under the control of Mr. Laxalt and Mr. Sarbanes.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mr. ROBERT C. BYRD. Mr. President, has the final hour of debate today, which will run between 5 and 6 o'clock, been divided, and, if so, how?

The ACTING PRESIDENT pro tempore. The first 15 minutes are allotted to the proponents of the treaty, the next 30 minutes are allotted to the opponents, and the final 15 minutes to the` proponents.

Mr. ROBERT C. BYRD. I thank the Chair and I thank the distinguished Senator for yielding to me.

The ACTING PRESIDENT pro tempore. Under the previous order, the Senator from Arizona (Mr. DeConcini) is recognized, as in legislative session, for not to exceed 30 minutes.

Mr. ROBERT C. BYRD. Mr. President, I have taken 2 minutes of the Seantor's time, but I yield him 15 minutes in the beginning.

CLARIFICATION OF AN ASPECT OF SENATE DEBATE ON PANAMA

CANAL TREATIES

Mr. DECONCINI. Mr. President, I ask this Chamber's indulgence for a few moments to help clarify an aspect of the Senate debate on the Panama Canal treaties that has become, in my view, extremely distorted.

An amazing amount of controversy has surrounded the language I asked the Senate to add to the resolution of ratification on the Neutrality Treaty. The language, which has become known as the DeConcini amendment, is meant to clarify certain rights that the United States retains under the new arrangement that will govern the Panama Canal.

What puzzles me, Mr. President, is that suddenly the public debate has focused on whether it is appropriate for the United States to retain the right to keep the canal open regardless of the reasons that may lead to its closure. Frankly, I believed that there was no disagreement in principle on this point. I believed that it was accepted by the Panamanians, that it was accepted by the administration, and that it was accepted by the Foreign Relations

Committee and the Senate leadership. It has come as quite a shock to me that this is apparently not the case.

Let me be more specific, Mr. President. On February 3, the Senate Foreign Relations Committee ordered its report on the Panama Canal treaties to be printed and distributed to Members of the Senate to aid them in their consideration of the treaties. Since only Senator Griffin dissented from the report and appended minority views, I must assume as I believe all of us assumed-that the rest of the Foreign Relations Committee agreed with the report.

As it turns out, Mr. President, a number of Senators who are fairly senior members of that committee have publicly raised serious questions about the principle behind the DeConcini amendment. The reason why this is perplexing, Mr. President, is that the Senate Foreign Relations Committee report on the treaties endorsed that principle.

On page 6 of the "star print," the committee begins its discussion of the so-called leadership amendments to the treaty. After stating that the committee recommended the adoption of the "leadership amendments," it goes into a statement of the intention behind those amendments.

The report states:

The meaning of these amendments is plain. The first amendment relates to the right of the United States to defend the Canal . . . It allows the United States to introduce its armed forces into Panama whenever and however the Canal is threatened. Whether such a threat exists is for the United States to determine on its own in accordance with its constitutional processes. What steps are necessary to defend the Canal is for the United States to determine on its own in accordance with its constitutional processes. When such steps shall be taken is for the United States to determine on its own in accordance with its constitutional processes. The United States has the right to act as it deems proper against any threat to the canal, internal or external, domestic or foreign military or non-military. Those rights enter into force on the effective date of the treaty. They do not terminate.

How much plainer could the report of the Foreign Relations Committee be? One thing is certain, however. The Foreign Relations Committee-and, again, I assume that includes all its members save Senator Griffin-asserts broader rights than were asserted in the DeConcini amendment. In other words, the Foreign Relations Committee report goes beyond the rights asserted by my simple clarification.

Perhaps, it could be argued that these rights asserted by the Foreign Relations Committee are partially eliminated by the second paragraph of the "leadership amendment" which reasserts the American intention not to intervene in the internal affairs of Panama. Here again, the Foreign Relations Committee report makes it clear that such is not the case. Referring to the paragraph I just quoted, the report says:

The above described rights are not affected by the second paragraph of the amendment, which provides that the United States has no 'right of intervention . . . in the internal affairs of Pamana,' and which prohibits the United States from acting ‘against the territorial integrity or political independence of Panama.'

The report goes on to be more specific. It states that:

The prohibitions set forth in the second paragraph do not derogate from the rights conferred in the first.

It then asserts that:

Even if a conflict were somehow to arise between the two paragraphs, because the United States has the right to act against "any... threat directed against the Canal", there is no question that the first would prevail. The rights conferred therein are stated in absolute terms and must therefore be construed as controlling.

It is interesting, Mr. President, that the principle endorsed by the Foreign Relations Committee is now being called into question. The impression in some segments of the media is that these Ameri can rights are novel inventions of the DeConcini amendment.

Quite frankly, although I am flattered by the attention of the media during the last few days, I believe it is quite unwarranted. What I proposed in the DeConcini amendment was merely a clarifi cation of the principle articulated by the Foreign Relations Com mittee. It was my feeling-and the feeling of a number of my colleagues-that the "leadership amendment" was not sufficiently clear. Regardless of what the intent of the amendment was, the actual words seemed to be subject to a variety of interpretations. Because it was merely a clarification and not a change in Ameri can policy-policy apparently agreed to, according to the Foreign Relations Committee report, by the Panamanians themselvesnone of the parties involved, including the administration or the Senate leadership had much difficulty accepting my amendment to the instrument of ratification.

It was only after the amendment was accepted overwhelmingly by the Senate that the controversy arose. Reports from Panama have indicated that the amendment ran counter to the meaning and intent of the treaty, and the Panamanian Government took the unusual step of circulating a note among the members of the United Nations implying that the rights asserted by the DeConcini amendment were possibly outside the scope of the United Nations Charter.

In response to the Panamanian reaction, the administration, the Senate leadership, and individual members of the Foreign Relations Committee have suggested that it is imperative that the DeConcini amendment be somehow moderated or modified, or the treaty would either become unacceptable to the Panamanians or to certain members of the Senate who do not want to be associated with the notion that the United States has the right to act independently to keep the canal open.

It seems to me, Mr. President, that the only truly legitimate area of debate is whether the wording of the DeConcini amendment is or is not necessary to achieve the objectives described by the For eign Relations Committee and which I have extensively quoted. It seems to me that those objectives are not in question. The American people and the majority of Senators believe that we have those rights and that they are both legitimate and sanctioned by the Panamanian Government. It is unfortunate that so much time has been expended debating an issue which should not be in contention.

Let me, Mr. President, restate my concerns. What led me to introduce and what I believe led the Senate to accept-my reser vation was a sense that the "leadership amendment" was some

what unclear on a number of points, most especially those relating to American rights to keep the canal open if the threat to it were internal rather than external. Now, it should be noted, once, again, that this right is asserted by the Foreign Relations Committee as inherent in the leadership amendment, and is endorsed by them. Thus, the question is whether the actual treaty and amendment language makes this right sufficiently clear.

At the time that I introduced my amendment, I made the following statement:

I believe I speak for all Senators in stating that it is not our expectation that this change gives to the United States the right to interfere in the sovereign affairs of Panama. The United States will continue to respect the territorial integrity of that Nation. My amendment to the resolution of ratification is precautionary only; and it is based on the long history of American stewardship of the canal. It recognizes the very special relationship that the Panama Canal has to American security. I certainly hope, Mr. President, that if this right is attached to the treaty it will never need to be exercised. Yes, it is important that the American people know that should the need arise, the United States has sufficient legal sanction to act.

Those, Mr. President, were my words at the time the amendment was introduced and acted upon. They continue to be my sentiments today. Furthermore, I know there is nothing in my reservation that goes beyond the words of the Foreign Relations Committee, and I believe those words reflect the intent of the Congress. My only quarrel today as well as in the past has been what I perceive as ambiguity in the drafting of the leadership amendment. The Foreign Relations Committee report believes that the leadership amendment accomplishes the stated objectives; I do not. However, I assert no new right, but neither will I accept any changes in those words that derogate from the rights we have clearly established in our action on the Neutrality Treaty.

I thank the Chair, I yield back the remainder of my time, and I suggest the absence of a quorum.

The ACTING PRESIDENT pro tempore. The clerk will call the roll. The assistant legislative clerk proceeded to call the roll.

Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

THE PANAMA CANAL TREATY

The ACTING PRESIDENT pro tempore. Under the previous order the Senate will now resume consideration of the resolution of ratification of the Panama Canal Treaty which the clerk will state. The legislative clerk read as follows:

Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Panama Canal Treaty, together with the Annex and Agreed Minute relating thereto, done at Washington on September 7, 1977 (Executive N, Ninety-Fifth Congress, first session).

The Senate resumed consideration of the resolution of ratification of the Panama Canal Treaty.

The ACTING PRESIDENT pro tempore. The Senator from Kansas is recognized to call up a reservation on which there will be 30 minutes of debate equally divided between the Senator from

Kansas and the manager of the treaty with vote in relation thereto to occur at 10:25 a.m. this morning.

The Senator from Kansas.

UP RESERVATION NO. 33

Mr. DOLE. Mr. President, I send to the desk an unprinted treaty reservation for the resolution of ratification and ask that it be stated.

The ACTING PRESIDENT pro tempore. The reservation will be stated.

The legislative clerk read as follows:

The Senator from Kansas (Mr. Dole) proposes unprinted reservation No. 33. Mr. DOLE. Mr. President, I ask unanimous consent that reading of the reservation be dispensed with.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

The reservation is as follows:

Strike out the period at the end of the resolution of ratification and insert in lieu thereof the following: "subject to the following reservation:

"Before the date of exchange of the instruments of ratification of the Treaty, the two Parties shall have agreed that the Panama Canal Commission shall reduce the amount of the annuity payable to the Republic of Panama under paragraph 4(b) of Article XIII of the Treaty by the product of such amount and a fraction, the numerator of which is the number of days during the calendar year the Canal is not navigable and the denominator of which is 365.".

Mr. DOLE. Mr. President, very briefly and very quickly, because the Senator from Kansas knows there is a mountain of work ahead of us today before the final vote on the Panama Canal Treaty, as my colleagues are well aware, article XIII of the Panama Canal Treaty provides, for the Government of Panama, "a fixed annuity of 10 million U.S. dollars to be paid out of canal operating revenues." The reservation I am proposing would simply condition Senate ratification on the following point-that this fixed annual annuity shall cease during any period in which the canal is inoperable. That is, the annuity would be reduced by an amount proportionate to the number of days of the year that the canal is not open for transit.

Mr. President, it would clearly be unfair and irresponsible to guarantee continued payments to Panama during a time in which the canal is closed, since that payment is understood to come from canal toll revenues in the first place. This is a logical reservation on our part, and one that I am sure any rational Panamanian would understand.

There are any number of reasons why the canal could be closed for temporary periods during the next 22 years. It could be a result of a national catastrophe, such as an earthslide or earthquake. It could be due to a functional breakdown involving the intricate machinery of the lock system. Or it could be the result of intentional sabotage by either internal or external sources. Certainly, we hope none of these conditions develops. But if they should it is likely that the canal would be closed to all traffic for several days, during which time there would be no operating revenues derived from the canal. Why, then, should the Panama Canal Commission