Miss STILL. Mr. Downing? Miss STILL. Mr. Biaggi? Miss STILL. Mr. Bowen? Miss STILL. Mr. Hubbard? Mr. HUBBARD. Ave. Miss STILL. Mr. Snyder? Mr. SNYDER. Aye. Miss STILL. Mr. Ruppe? Mr. RUPPE. Ave. Miss STILL. Mr. Rinaldo? [No response.] Miss STILL. There are seven voting aye. That is a quorum. Mrs. SULLIVAN. What was the vote? Miss STILL. Seven. Mrs. SULLIVAN. It is unanimous. The public will be excused. [Whereupon at 10:45 a.m. the subcommittee proceeded into executive session.] The subcommittee convened in secret session at 10:58 a.m., in room 1334, Longworth House Office Building, the Honorable Leonor K. Sullivan, chairman of the full Committee on Merchant Marine and Fisheries, presiding: EXPLANATORY NOTE OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES The verbatim transcript of the closed session has been deleted in its entirety. However, pursuant to an agreement between the committee, subcommittee, and the witnesses of the Department of State, a generalized summary of the questions asked of the Department of State by Mr. Snyder, as well as a brief summary of the discussions between Mr. Snyder and the witnesses of the Department, are presented in the following paragraphs. Mr. Snyder issued a press release on April 13, which included a portion of his exchange with Ambassador Bunker regarding authorization for the treaty negotiations with the Republic of Panama. Mr. Snyder based his action on a specific unanimous consent authorization, which appears at page 30 of the original transcript of the open hearings of April 8, 1976 and upon the following excerpts from the transcript of the closed session: 1. Following insertion of certain correspondence into the record regarding the 1936 treaty, the following exchange occurred: Mr. MURPHY. Will that be in confidential also? Mr. SNYDER. Public. Mr. MURPHY. I would like it in the public record. Mr. SNYDER. I would like all my questions to be on the record unless they specifically want them off, and they can say so. Mrs. SULLIVAN. All right. 2. At the conclusion of the closed session, in her summary of the subjects covered in the entire closed session, the presiding and Full Committee Chairman (Mrs. Sullivan) made the following remarks: Mrs. SULLIVAN. But I appreciate your answers. I know we have held you a long time. The testimony that you have given, the answers that you have given, except those that Mr. Snyder has asked he does not think are in that category of confidential or secret, will not be printed or made public, and thank you for coming in. On April 12, 1976, one day prior to issuance of his press release, Mr. Snyder sought and received from the Full Committee and presiding Chairman, Mrs. Sullivan, further confirmation as to his right to make public the material contained in the release. This confirmation was expressed in accord with the questioning period during which Mr. Snyder had made his unanimous consent request and received no objection thereto. The Department of State takes the view that the authorization given Mr. Snyder by unanimous consent at page 30 of the original transcript of open hearings of April 8 and the excerpts cited above, taken together, constitute authorization only for the release of Mr. Snyder's questioning concerning the legal interpretation of the 1936 treaty. Thereafter, on April 14, the Department protested to the committee Mr. Snyder's release on April 13 of additional material. Both the committee and/or its individual members and the witnesses from the Department of State have agreed to the release of the summary which follows without prejudice to their positions with respect to the scope of the authorization for disclosure of information. contained in the closed session. In accordance with the agreement between the committee and witnesses of the Department of State, the following generalized summary of Mr. Snyder's questions during the closed session is presented : 1. At one point in the closed session Mr. Snyder engages in a brief colloquy with Minister Bell on the subject of political alignment in the Republic of Panama with respect to the treaty objectives of General Torrijos. Following that brief exchange, Mr. Snyder and the witnesses discuss the 1936 treaty and its relationship to sovereignty. Mr. Snyder asks for copies of legal briefs supporting the State Department interpretation of that treaty. 2. At another point in the closed session, Mr. Snyder has another exchange with the witnesses on the interpretation of particular sections of the 1936 U.S.-Panama Treaty. 3. At still another point Mr. Snyder inserts in the record of the hearing a document prepared by the American Law Division of the Library of Congress on the question of the status of the Canal Zone in international law (contained in documents on the 1936 Treaty which follows). Following the request for insertion of the document, Mr. Snyder and Ambassador Bunker engage in a colloquy as to authorization for the negotiations, and the manner in which that authorization was transmitted. Following the colloquy cited above, the ranking minority member asks that copies of documents authorizing negotiation be submitted for the record of the hearing. After the unanimous consent request for the documents and discussion of the request, the questioning period of the ranking minority member shifts to the questions of bureaucratic politics with respect to the negotiations, the stability of the governmental system in Panama, the basic rationale for the negotiations, the cost of the negotiations, and public opinion with respect to the treaty talks. EXCHANGE OF CORRESPONDENCE ON 1936 TREATY During the closed session meeting of the Subcommittee on the Panama Canal, permission was received for the publication of the exchange of correspondence between the ranking minority member of the subcommittee and the Department of State with respect to the interpretation of article III of the 1936 treaty between the United States and the Republic of Panama. The exchange of correspondence follows: MR. MOREY BELL, EXCHANGE OF CORRESPONDENCE ON 1936 TREATY NOVEMBER 14, 1975. Deputy Negotiator, Panama Canal Sector, Department of State, DEAR MR. BELL: At the Republican Conference briefing yesterday, in answer to a question by my assistant as to why the State Department could say the Canal Zone is Panamanian territory-especially in view of the 1907 Supreme Court decision in Wilson v. Shaw-you said it is because of the terms of the 1936 treaty which is the law of the land, and that the State Department has legal opinions to this effect. I am not aware of any language in the 1936 treaty, nor is anyone else of my acquaintance, which could provide a basis for opinions you referred to, that would repudiate the perpetual grants to the U.S.A. by Panama of territorial sovereignty over the Canal Zone, or overturn the above-mentioned decision which specifically stated: "It is hypercritical to contend that the title of the United States is imperfect, and that the territory described does not belong to this Nation. . ." On the contrary, in my opinion, Article II of the 1936 Treaty serves to reinforce that original grant. Because the State Department's rejection of U.S. sovereignty over the Cazal Zone is central to the new treaty it proposes, and to the Congressional a over that treaty which recently have taken place, and will contine * . it is vital that you promptly furnish me with a copy of the leg vil a L opinions to which you referred yesterday. I will be most grateful for your immediate attention and AT T this request. to exercise therein "all the rights, power and authority which it would possess and exercise if it were the sovereign of the territory . . . to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority." The question posed is whether this grant of rights had the effect, under international law, of transferring the territory compris ing the Canal Zone from Panamanian sovereignty to that of the United States. In other words, is the international legal status of the Canal Zone that of Panamanian or of United States territory? It is clearly established under international law that a state may grant to a foreign state the right to exercise exclusive sovereign powers within portions of its territory without effecting a cession of its own sovereignty over that territory. For example, during the latter part of the 19th Century China's leases of naval bases to France, Germany and Russia included grants to the lessees of rights to exercise sovereign powers within the leased areas. (I MacMurray, Treaties and Agreements with and Concerning China, 1894-1919, at 112, 119, and 128). Similarly, Article III of the U.S.-Cuba Agreement of February 16, 1903 relating to Guantanamo Naval Station provides: "While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas . . ." (TS 418; 6 Bevans 1113). A more recent example of one nation being granted sovereign rights within the territory of another is found in Article III of the Treaty of Peace with Japan (3 UST 3169; TIAS 2490) which authorized the United States to "exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of [the Ryukyu and Daito islands]," while Japan retained what Secretary Dulles termed "residual sovereignty" over those areas. (The rights of the United States under Article III were terminated by the U.S.-Japan Treaty of June 17, 1971). 1 With respect to the Canal Zone, the United States has consistently recognized that Panama retains "titular" sovereignty over the area. 66 The truth is that while we have all the attributes of sovereignty necessary in the construction, maintenance, and protection of the Canal, the very form in which these attributes are conferred in the treaty [of 1903] seems to preserve the titular sovereignty over the Canal Zone in the Republic of Panama (Letter from Secretary of War William H. Taft to President Theodore Roosevelt, January 12, 1905.) In essence, while the United States acquired extensive treaty rights to use the Canal Zone and to exercise sovereign powers within it, the area technically remains part of the territory of the Republic of Panama. "The rights of the United States in the Panama Canal Zone offer an example of the most complete transfer of jurisdiction over a territory without its being a cession in the technical international law sense. . ." (Vali, Servitudes of International Law (2d ed., 1958) 254.) This distinction between the right to exercise jurisdiction within the Zone area and its international status was recognized in Article III of the Treaty of Friendship and Cooperation of March 2, 1936 (53 Stat. 1807; TS 945), which refers to the Zone as "territory of the Republic of Panama under the jurisdiction of the United States." (This is the provision I mentioned to which you refer in your letter.) Perhaps the most clear description of the nature of the rights the U.S. acquired in the 1903 treaty is that of M. Phillipe Bunau-Varilla, the principal drafter of the document: "I decided to grant to the United States, in the interior of the zone, all rights, power and authority that she would have if she were sovereign, to the entire exclusion of the use of any such rights, power and authority by the sovereign Republic of Panama. The United States, without becoming the sovereign, received the exclusive use of the rights of sovereignty, while respecting the sovereignty itslf of the Panama Republic," (Italics in original.) (Bunau-Varilla, From Panama to Verdun (1940) 158.)" With respect to the domestic law of the United States, the Canal Zone has been treated in various ways for the purpose of defining the applicability to 1 Conference for the Conclusion and Signature of the Treaty of Peace with Japan: Record of Proceedings 78 (Department of State Pub. 4392) (1951). the Zone of specific legislative provisions. For example, the Canal Zone is considered to be an organized territory of the U.S. for purposes of extradition (37 Stat. 569, 48 USC 1330). On the other hand, it is treated as foreign territory for purposes of customs duties (33 Stat. 843, 19 USC 126) and its ports are considered foreign ports for purposes of the transportatin of mail (Luckenbach Steamship Co. v. U.S. 280 U.S. 173 (1930)). Thus, U.S. domestic legislation and court decisions would not appear to provide a basis for any definitive conclusions with respect to the international status of the Canal Zone, nor are they intended to. Rather, such definitions are made for the sole purpose of extending the effect or of exempting the Zone from its application. The often cited case of Wilson v. Shaw (204 U.S. 24 (1907)) must be considered in this context. That case was taken to the Supreme Court by a taxpayer who maintained that the Federal Government could not continue to expend funds lawfully for the construction of an interoceanic ship canal in Panama. He sought an injunction against any further expenditures on the grounds that the U.S. did not have a sufficient legal interest in the Canal Zone to authorize the expenditure of tax money there. The Supreme Court held that the Federal Government did have broad enough power to encompass expenditure of funds for the construction of the Canal and refused to issue an injunction. In speaking of the legal interest of the U.S. in the Zone, the Court said, "It is hypercritical to contend that the title of the United States is imperfect, and that the territory described does not belong to this Nation, because of the omission of some of the technical terms used in ordinary conveyance of real estate." Thus, the Supreme Court did equate the Canal Zone with territory belonging to the United States, but in the context of establishing the authority of the Federal Government to expend funds and to engage in construction work in the Zone. As noted above, the Court has subsequently held the Zone to be foreign territory for other purposes (Luckenbach Steamship Co. v. U.S. (280 U.S. 173 (1930), and such interpretations of the status of the Canal Zone under domestic U.S. law for the purpose of determining the applicability of specific statutes therein are not determinative as to its international status. I hope this information respecting the legal status of the Canal Zone is responsive to your questions. I should add, however, that in my judgment the fundamental question which must be addressed in considering whether a new treaty with Panama is desirable is not that of sovereignty. Rather, the question is whether a new treaty would or would not serve United States interests. The fact that the United States has consistently recognized that the Canal Zone remains territory of the Republic of Panama is no argument in favor of altering our existing treaty relationship with that country. Rather, it is the judgment that that relationship is no longer suited to protecting United States commercial, military and foreign relations interests which has led the United States to enter into negotiations with Panama. Ambassador Bunker. General Dolvin and I would welcome further opportunities to exchange views on the Canal Negotiations with you. Mr. Kozak of the Office of the Legal Adviser, who is serving as Assistant Negotiator in the Panama Negotiations, is prepared to meet with members of your staff concerning the legal aspects of the matter, should you consider that desirable. Sincerely, S. MOREY BELL, Minister, Deputy U.S. Negotiator. To: Honorable Gene Snyder. Attention: Mr. Nonnenmacher. THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., April 6, 1976. From: Kenneth Merin, Legislative Attorney, American Law Division. The attached has been prepared for the personal use of the Member requesting it in conformance with his directions and is not intended to represent the opinion of the author or the Congressional Research Service. |