27. even though the United States felt that the rejection was made by duress and did not represent the will of the Panamanian nation, all United States troops then in the territory of Panama were withdrawn in a matter of hours. They were withdrawn precisely because of the respect of the United States for the sovereignty of Panama. The logic of sovereignty is inescapable. A nation has the right to determine its internal and external affairs without outside interference. The movement of foreign troops within its territory is an internal affair, even when regulated by treaty. The interpretation of treaties, particularly as the treaties affect its own territory, is also an internal affair. Because of the inviolability of sovereignty under international law, no outside nation can assert its foreign interpretation of such treaties in contravention of the sovereign's interpretation. Once we Thus, even if we believe that Panama has violated the Panama Canal treaties, even if we believe that Panama has violated the regime of neutrality, we have no right to use military force to remove what we interpret to be a violation. surrender the exercise of sovereign rights, we must act only in concert with the new sovereign, or we face check-mate. Our only legal alternative is mediation, conciliation, arbitration; but Panama is not obliged to accept the results of any of those processes. 28. So long as the United States exercises sovereign powers in the Canal Zone, Panama has no legal right to object to our actions in that territory. Conversely, once Panama exercises sovereign powers in that territory, we have no legal right to object. The logical box is air-tight. That is why it was important, in my judgment, for the United States to maintain that the 1903 Treaty was a cession of sovereignty en bloc, as well as a transfer of territory. Without the successful assertion of such rights, we would have no grounds for the successful operation and defense of the Canal. Similarly, once the negotiators began with the premise that sovereignty was to be conceded to Panama, the United States shifted to a position of weakness. The best that could be hoped for was an explicit concession by Panama to the United States of the unilateral right to defend the Canal. This, in itself, would be a dubious base for defense, because it would be a concurrent assertion of sovereignty by two different nations over the same territory. It involves a fundamental contradiction, even if the primary sovereign accedes to such a concession by treaty. The primary sovereign would still have a right to renounce the treaty, or to contest an action under the treaty. The only advantage to the United States is one of pragmatism: the United States could act first in an emergency, and then sort out the legal consequences later. 29. Such a concession must be explicit, rather than implicit. If it is merely implicit, there is no agreement in law. AngloSaxon legal traditions are inclined to supply meaning to the law to make it work, if explicit sanction is missing; but Latin American legal traditions, based on code law, presume exactly the opposite rule of interpretation. If agreements are not spelled out exactly, the courts cannot supply a solution, no matter how logical in the implications of the language. When different cultural traditions govern the same negotiators, a collision is inevitable. The method the negotiators chose was to carefully avoid making any explicit recognition of a unilateral right of defense. The rights of both nations were stated in parallel form, as though both would always operate concurrently and cooperatively. The treaties simply omitted considerations governing the operation of these rights if it should happen that they would be exercised in opposition to each other. The negotiators apparently hoped that such disagreements would never arise; or perhaps they simply allowed for the legal effect of the doctrine of sovereignty, namely, that the will of Panama would supersede the rights of the United States. The proponents of the treaties constantly interpreted the parallel rights language of the treaties as a unilateral right; but they assiduously opposed any attempt to have unilateral rights written into the text. The desperate acceptance of "independently" in the DeConcini reservation, however, smoked out Panamanian discontent over any legal commitment to United States unilateral rights. 30. 2. LEGISLATIVE HISTORY OF UNILATERAL DEFENSE RIGHTS The struggle over the question of unilateral United States defense rights for the Canal began in 1975. Up until that time, the Department of Defense had insisted upon the retention of a Canal Zone under the new treaty that would leave the United States with a defined territory of jurisdiction, if not sovereignty, similar to other overseas bases. The State Department negotiators insisted, however, that Panama would never accept such a concept. Instead, the State Department began negotiating with the Department of Defense and the National Security Council, developing the notion of "combined defense" of the Canal, in which United States and Panamanian forces would work cooperatively in all aspects of defense, with the Zone itself being dismantled into operational units. The then Deputy Secretary of Defense, Mr. William P. Clements Jr., was delegated to go to Panama to discuss this with Torrijos. Mr. Clements testified before the Armed Services Committee on February 1, 1978, as follows: "In September of 1975, General Brown and I went to Panama and spent 2 days there and met with General Torrijos and his staff. Assistant Secretary of State Rogers went with us and we had a thorough, ongoing discussion while we were there, as you can imagine. We were joinged by the President of Panama, President Lakas, and also by the U.S. Ambassador to Panama, Mr. Bill Jordan. "This was a fruitful trip in the spirit that we im- 31. "General Torrijos understood this; he agreed that the security aspects of this had to be clear, and that the rest of the treaty could be accommodated to this basic building block. * "Subsequently, a security clause acceptable to the Pentagon was evolved. The Department of Defense attorneys helped significantly in this. Ben Forman was the drafter of that particular clause. It was processed through the Interagency Group, including the State Department and the NSC staff at the White House, and that particular clause was included in the then existing draft of the treaty. "I would like to insert in the record that particular clause that was included, and I will read it to the committee: "'In the event of any threat to the neutrality of the Canal, the Parties shall consult concerning joint and individual efforts to secure respect for the Canal's neutrality and security through diplomacy, conciliation, mediation, arbitration, the International Court of Justice, or other peaceful means. If such efforts would be inadequate or have proved to be inadequate, each Party shall take such other diplomatic, economic or military measures as it deems necessary in accordance with its constitutional processes.'" Mr. President, the first sentence in the Clements clause is merely a face-saving device; the real operative part is the last sentence. It is both prospective and retrospective; that is, it covers either threats which have occurred or which could occur. It is not limited to peaceful methods of conciliation, which obviously would be too time-consuming in a crisis. If such methods "would be inadequate" then each Party can take such steps-and the operative phrase is "military measures"--"as it deems necessary." Thus without using the word "unilateral" the clause would have given unilateral rights. In the questioning which followed, I asked Mr. Clements the following: "Mr. HELMS. Does that clause...give the United States |