17. treaty. Panama's reaction is particularly disturbing because it runs contrary to the information given to the Senate as to Panama's attitude. The Senate had been led to believe that the Nunn Reservation was consistent with the negotiations and our understanding of Panama's attitude. Even the Senate leader ship was under that impression, as was evident in the following exchange on March 15: "Mr. KENNEDY. May I ask the Senator, again the floor manager, whether there has been any indication from the Panamanian Government as to the acceptability of this particular reservation? "Mr. SARBANES. I would have to say to the Senator in response to that question that we have no definitive indication. "Mr. KENNEDY. But it is the Senator's position that this reservation is completely consistent with the other provisions of the treaty and with the understandings and negotiations which have taken place between the United States and Panama? "Mr. SARBANES. I respond to that in the affirma "Mr. KENNEDY. In the amendment of the Senator from Georgia, it is very clear that the purpose is to maintain the regime of neutrality established in the treaties. Those words have great weight in terms of establishing both the purpose and tone of this reservation. "As I understand from the debate yesterday and from the statements today, that is the purpose of this reservation. Without this particular reservation, without other treaty arrangements--even with the agreement of the Panamanian Government and the Untied States--this treaty would preclude the opportunity for joint agreement to U.S. military presence for the purpose of maintaining the neutrality of the canal. This is really the purpose and the focus of this reservation. "Do I understand the Senator from Georgia correctly? 29-400 (pt. 3) O 79 123 18. The Nunn Reservation imposes no additional burden upon Panama. However, it significantly alters the effect of Article V to permit an exception to Article V in the future, if both parties agree. For the Panamanian government now to declare "with total emphasis" that Article V "has not been changed" is to make a mockery of the Senate's proceedings. Indeed, it is more than that; it is a repudiation of the reservation itself. B. THE DECONCINI RESERVATION TO THE NEUTRALITY TREATY Mr. President, the DeConcini Reservation No. 83 was passed by the Senate on March 16 by a vote of 86 to 13, as an amendment to the resolution of ratification of the Neutrality Treaty. substantive portion of it was as follows: The "Notwithstanding the provisions of Article V or any other provision of the Treaty, if the Canal is closed, or its operations are interfered with, the United States of America and the Republic of Panama shall each independently take such steps as it deems necessary, in accordance with its constitutional processes, including the use of military force in Panama, to reopen the Canal or restore the operations of the Canal, as the case may be." Although this Reservation is entirely consistent with the purposes of the Neutrality Treaty and the responsibilities of the United States under that Treaty, the Amendment made explicit a point that was before only implicit. Panama chose to take offensc at the Senate's action and the Senate's debate, and the partisans of Panama felt it necessary to sponsor a so-called "leadership amendment" to the Panama Canal Treaty restating United States policy. The Senate passed the "leadership amendment" to the Panama 19. Canal Treaty on April 18, by a vote of 73 to 27. Cosponsored by the distinguished Majority Leader, Mr. Byrd, the distinguished Minority Leader, Mr. Baker, and by Senators DeConcini, Church, Sarbanes, Sparkman, Javits, Leahy, and Gravel, the substantive portion read as follows: "Pursuant to its adherence to the principle of nonintervention, any action taken by the United States of America in the exercise of its rights to assure that the Panama Canal shall remain open, neutral, secure, and accessible, pursuant to the provisions of this Treaty and of the Neutrality Treaty and the resolutions of advise and consent thereto, shall be only for the purpose of assuring that the canal shall remain open, neutral, secure, and accessible, and shall not have as its purpose nor be interpreted as a right of intervention in the internal affairs of the Republic of Panama or interference with its political independence or sovereign integrity." There is, on the surface, no conflict between the language of the two reservations. Both are limited solely to actions designed to open the Canal or to keep it open, pursuant to the regime of neutrality which both nations are pledged to maintain. The scope of the DeConcini resolution is limited to actions taken the Canal or restore the operations of the Canal." "to reopen Although the DeConcini reservation authorizes the United States to "take such steps as it deems necessary," the authority thereby granted is not unlimited, but rather is strictly constrained by the stated purpose, namely, "to reopen the Canal or restore the operations of the Canal." Indeed, if anything, the leadership amendment to the second treaty goes beyond anything the DeConcini reservation threatened, for it goes beyond the question of keeping the canal "open" and adds three new substantive grounds for action, namely, keeping 20. the Canal "neutral," "secure," and "accessible." It is thus far more wide-ranging in offering motives for action, gives a far broader range for interpretation of any given set of cirstances affecting the Canal's operations, and offers a blank check for anything the United States may wish to do. For if the logic of the leadership amendment is examined closely, its plain meaning is that both parties have agreed in advance that any United States action, including intervention in Panama's internal affairs, shall not be interpreted as "intervention" so long as such intervention has as its purpose keeping the Canal open, neutral, secure and accessible. Thus the leadership amendment to the second treaty in no way cancels or amends the original DeConcini reservation. Although it appears to offer a legal fiction to redefine intervention as "non-intervention," it does nothing to make the DeConcini reservation inoperative in any way. And, especially, it leaves intact something in the DeConcini reservation that is of the utmost importance to the legal status of any action, including military action, that the United States may wish to take in the future for the purpose of keeping the Canal open. It leaves intact the DeConcini reservation's use of the word "independently." says that the United States and Panama "shall each independently take such steps as it deems necessary." On this key word hinges the right of the United States to take unilateral action to fulfill1 our responsibilities under the treaties. Without that word, our security rights with regard to the Canal are worthless. 21. Without that word, the withholding of consent by Panama is sufficient to make any action we take illegal. When doubts The Administration constantly maintained that the right of independent action was implicit in the treaties. arose, the Administration maintained that the right of independent action was implicit in the so-called "leadership amendments" to the first treaty. When the argument of implicitness was still not enough to secure the last two or three votes needed for approval, the Administration permitted the distinguished Senator from Arizona to use the word "independently" in his reservation, thus making explicit at last the central issue in the defense arrangements. It is therefore vital that Panama accept the DeConcini reservation for there to be a meaningful agreement on central treaty issues. But Panama insists that the DeConcini reservation is somehow cancelled by the reservation made to the second treaty. The Panamanian Foreign Ministry communique states flatly: "It is necessary to stress that the Senate's definition of U.S. policy in this reservation covers both treaties, which are mentioned specifically in the reservation, so that there would not be the slightest doubt that the DeConcini amendment added to the Neutrality Treaty would not continue in force." If the President of the United States does not uphold the full force and effect of the DeConcini reservation for "independent" United States action to maintain the neutrality of the Canal, then he will be breaking the very commitment upon which the treaty structures were approved by the Senate. |