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Mr. Meeker, will you step forward, please?
Mr. MEEKER. Thank you. Mr. Chairman.

Senator ALLEN. Mr. Meeker, we appreciate your coming before the subcommittee to give us your views. We look forward to your testimony. You may proceed as you see fit.

TESTIMONY OF LEONARD MEEKER, CENTER FOR LAW AND SOCIAL POLICY

Mr. MEEKER. I appreciate the invitation to come today to talk about the question of the constitutional authority of the President and the Senate to conclude a new treaty with Panama making fundamental alterations in the rights of the United States in relation to the Panama Canal and the Canal Zone without participation of the Congress as a whole.

Here I would like to emphasize that the issue concerns not the power of the President alone to make such a treaty bringing about such alterations. The issue is whether the President and the Senate, together-two-thirds of the Senate-have the power to make a treaty to this effect.

For purposes of discussion now, I would assume that a new treaty might follow the general outlines of the eight points which were set forth in a joint statement of principle by the Governments of the United States and Panama. I refer to a statement made in February 1974.

The principles provide clearly for a termination of U.S. jurisdiction in the Canal Zone. They also go on to provide that Panama, in its capacity as territorial sovereign, would grant to the United States for the duration of the new treaty the right to use the lands, waters, and air space that may be necessary for the operation and maintenance, protection, and defense of the canal and the transit of ships. Thus, initially a new treaty under those principles would not transfer the canal and its operation to Panamanian control.

Another portion of the principles states that the Republic of Panama shall grant to the United States the rights necessary to regulate the transit of ships through the canal and to operate and maintain, protect, and defend the canal and undertake any other specific activity related to those ends, as may be agreed in the treaty.

Thus, rights of defense in relation to the canal would also be included in a treaty following those principles.

To go back to the beginning, we might look for a moment at the terms of the 1903 Convention between the United States and Panama concerning the canal.

Under article II of the Convention, Panama grants the United States, in perpetuity, the use, occupation, and control of a zone of land and land under water for the construction, maintenance, operation, sanitation, and protection of said canal.

Then, article III characterizes the grant in these terms:

The Republic of Panama grants to the United States all the rights, power, and authority within the Zone mentioned and described in Article II of this agreement, which the United States would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power, or authority.

These provisions thus constitute a broad and sweeping grant. They do so in perpetuity. Nevertheless, they did not bring about an outright cession of territory to the United States. The United States did not acquire sovereignty over the Canal Zone.

Almost from the time when the treaty was concluded the United States has recognized that Panama retains titular sovereignty over the zone.

In American law the zone has a unique status. For some purposes, under some legislation enacted by Congress, the zone is treated as a territory, possession, or part of the United States. For other purposes, under other legislation, it is treated not as a part of the United States or as a territorial possession, but as if it were part of a foreign nation. However, I think for our purposes today we may consider that the Canal Zone is comprehended within the subject matter covered by article IV, section 3, clause 2 of the Constitution. That provision reads: "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."

Here I think we might pause just for a moment to look at two aspects of U.S. rights in the Canal Zone. We acquired, by treaty, rights of administration under the 1903 convention. We also acquired property rights both the right to public lands by virtue of the treaty, plus also property rights to private lands which were purchased subsequently.

I would understand the constitutional provision to cover both territory under the administration of the United States, and also other property in which the U.S. Government has property rights as opposed to jurisdiction.

I think it may be agreed that Congress does have power, as far as the United States is concerned, to dispose of the Canal Zone. Congress could authorize the President to negotiate an agreement with Panama incorporating provisions based on the eight points of the 1974 joint statement of principles. On the other hand, Congress could pass a joint resolution approving such an agreement after it was made by the President.

The question that remains is whether such a new agreement with Panama can be made on the part of the United States without the approval of the Congress. In my view, such an international agreement can be made through a treaty negotiated by the President and advised and consented to by the Senate under article II, section 2, clause 2 of the Constitution.

In other words, the power of the Congress under article IV, section 3, is not exclusive.

The treaty power has very large scope. A unanimous Supreme Court stated in 1924:

The treaty making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend so far as to authorize what the Constitution forbids, it does extend to all proper subjects of negotiation between our government and other nations.1

It seems plain that the future of the Panama Canal and of the zone are a proper subject of negotiation between the United States and

1 Asakura v. Seattle, 265 U.S. 332, 341 (1924). The Court cited an earlier statement to the same effect in DeGeofroy v. Riggs, 133 U.S. 258, 267 (1890).

Panama. U.S. occupation and administration of the zone have been a source of controversy and at times conflict in recent years between the United States and Panama. Early in 1964 there were riots and loss of life over this issue. In the aftermath Panama broke diplomatic relations with the United States. Panama on a number of occasions has raised this question for international debate in the United Nations and in the Organization of American States. Thus, it seems clear that United States relations with Panama will be determined by the success of the now long-continued negotiations for a new treaty. Our relations with the other American republics also are affected by the outcome.

The constitutional provision in article IV, section 3, on disposition of territory or other property, is expressed as a grant of power to Congress and not a prohibition on actions by other branches of the Government to dispose of territory or property.

The provision in article IV, section 3, begins: "The Congress shall have Power." This is in sharp contrast to the provisions set forth in article I, section 9, which includes the two following provisions:

No money shall be drawn from the Treasury but in consequence of appropriations made by law.

No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever from any king, prince, or foreign state.

Those provisions do contain the kind of words of prohibition referred to by the Supreme Court in its line of cases dealing with the treaty power.

On the other hand, article IV, section 3, granting to Congress power to dispose of the territory or other property of the United States contains no words of prohibition that could be contravened by a new treaty on the future of the Panama Canal and the Canal Zone.

Instead, the "territory or other property" cause parallels the provisions of article I, section 8, of the Constitution. That section contains these provisions:

The Congress shall have power to lay and collect taxes, duties, imposts, and excises . . . And to regulate commerce with foreign nations. . . . And to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

It has become well established that congressional powers such as these in article I, section 8, are not exclusive powers of the whole Congress. Treaties have been made dealing with tariffs. Numerous treaties of friendship, commerce, and navigation have also been concluded. In the field of copyright protection a multilateral treaty, the Universal Copyright Convention, was concluded in the 1950's, and a 1971 revision of it entered in force for the United States in July of 1974.3

Thus, over a long period of time powers of Congress under article I, section 8, have been treated as concurrent with the power of the President and the Senate to make treaties. The practice has been long and it has been extensive. It has been sustained by the Supreme Court. Similarly, the power of Congress under article IV, section 3, clause 2, is properly considered concurrent and not exclusive. Specifically in regard to the disposition of territory as between nations, the treaty

2 See George E. Warren Corp. v. United States, 94 F. 2d 597 (2nd Cir. 1938). 36 U.S.T. 2731; 25 U.S.T. 1341.

4 See, e.g., Cook v. United States, 288 U.S. 102 (1933).

process has been used many times to settle territorial claims through cession and counter-cession of territory.

Examples of this are the 1819 treaty with Spain concerning Florida, the 1846 treaty with Great Britain settling the boundary of the Oregon territory, the 1933 convention with Mexico to rectify the Rio Grande River boundary, and treaties with Panama in 1936 and 1935, under which the United States renounced the right to use, occupy, and control portions of the land granted to the United States by the 1903 treaty.5

In regard to the conveyance of title to lands-the property interest in them the Supreme Court has stated that a treaty can convey to a grantee good title to lands belonging to the United States without an act of Congress.

On the general subject, the American Law Institute has commented as follows on affirmative grants of power to Congress in the Constitution:

The mere fact, however, that a Congressional power exists does not mean that the power is exclusive so as to preclude the making of a self-executing treaty within the area of that power.'

In other words, a treaty that is law in the United States without the need for any implementing legislation, is what that means.

Thus, my conclusion is that the President and the Senate acting together under article II, section 2 of the Constitution can make a treaty revising or replacing the 1903 Convention with Panama so as to effectuate a new treaty based on the 1974 joint statement of principles.

Such a treaty might be followed by implementing legislation enacted by Congress, but neither authorization nor approval by Congress of the treaty is required. The treaty can be complete in itself and selfexecuting.

Thank you, Mr. Chairman.

Senator ALLEN. Thank you very much, Mr. Meeker. We appreciate your fine testimony.

I note here on page 5 of your prepared statement that you indicate that the treaty process has frequently been used to settle territorial claims through cession. Is it true that many of the cessions of the land of foreign nations involve-as you say-mere claims? Were they boundary line disputes in sort of a give and take situation?

It does seem that in that type of case, in that type of treaty in which the United States got something in return for giving something else, possibly that did not take a congressional act. However, the disposition or conveying of land to a foreign power does seem to have a different rule applicable to it.

I notice on page 6 you cite in your footnotes Holden v. Joy wherein the treaty gave title without an act of Congress. I believe that in that case there was actually, though, an act of Congress, was there not? What they said may have been just mere dictum.

5 Article V of the 1955 treaty provided for the conveyance of certain lands "subject to the enactment of legislation by the Congress." But Articles VI and VII were self-executing and provided for the transfer of other real property immediately following ratification. Congress recognized the effectiveness of these self-executing articles when it enacted legislation in 1957 to implement Article V. Section 102(b) of the 1957 statute referred to property conveyed "by operation of Article VI or VII of the Treaty."

Holden v. Joy, 84 U.S. 211, 247 (1872) (upholding treaties with an Indian nation under which lands were exchanged by the United States).

7 Restatement (second) of the Foreign Relations Law of the United States, Section 141, Comment f, illustration 8 (1965); see also Henkin, Foreign Affairs and the Constitution (1972) 140-42, 148-51.

Mr. MEEKER. That is correct. There was an act of Congress which was enacted subsequently-2 years after the making of the treaty. I think that because of the confirmation which Congress gave to the treaty you would properly conclude that the Supreme Court's expression on this was dictum rather than holding.

Going back to the earlier question about the treaties settling territorial claims, I agree with you, Mr. Chairman. Those treaties are on a point that is a little bit different from what we are talking about here. I would, however, draw attention to the two treaties with Panama—both in 1936 and 1955—in which the United States did reconvey to Panama some of the lands that had been covered by the original grant in 1903.

In the 1955 treaty, with respect to part of the lands, the provision in article V was for the conveyance of lands subject to the enactment of legislation by the Congress. That shows that with respect to those lands covered by Article V the President and the Senate considered that action by Congress would be requisite and that the conveyance would not be effective in the absence of an approval by Congress.

However, in articles VI and VII there were other provisions for the transfer of other real property immediately following ratification of the treaty and without any legislation by the Congress. In fact, when Congress implemented article V it recognized the self-executing character of articles VI and VII by referring to the property there as "property conveyed by operation of article VI or VII of the treaty."

I would take that as a recognition by Congress that in that instance the treaty had been effective itself in articles VI and VII to convey some lands even without the approval of Congress.

Senator ALLEN. Did not articles VI and VII deal with the boundary lines? Would not those two articles fall into the same category as these other boundary line adjustments that we have been referring to?

Mr. MEEKER. I believe not, Mr. Chairman. It related to some lands which had been included in the original grant and which the United States considered it no longer needed to administer. Therefore, it was being returned to Panama.

Senator ALLEN. I do not agree with you, and I believe you should reexamine the two articles in question.

I notice that Mr. Henry F. Holland, who was Assistant Secretary of State at the hearing on the treaty before the Committee for InterAmerican Affairs, testified to the Senate Committee on Foreign Relations that even Articles VI and VII should, in fact, have been made subject to full congressional approval. That specific statement was placed in the record by Mr. Holland. Even though boundary adjustments were involved, Mr. Holland felt that the transfers contemplated by articles VI and VII should have had congressional approval. Is that not correct, or do you know?

Mr. MEEKER. That, perhaps, was his opinion. Why it was not done that way I do not know. In fact, though, it was done this way and it was accepted not only by the Senate but by the whole Congress.

Senator HATCH. Could I interrupt for a second, Mr. Chairman?
Senator ALLEN. Yes.

Senator HATCH. I have a copy of the exchange between Senator Morris and Mr. Holland. During hearings in the 84th Congress, first session before the Senate Foreign Relations Committee on the Treaty of Mutual Understanding and Cooperation with Panama, pages 60

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