Maps of the Land and Water Areas for the Operation and Defense of the Panama Canal Referred to in the Agreements in Implementation of Article III and IV of the Panama Canal Treaty.

Exchange of Notes Relating to Postal Services.

Exchange of Notes Relating to Use of Commissary and Post Exchange Facilities. Letter Describing Application of the Wholesale Price Index Referred to in Paragraph 4(A) of Article XIII of the Panama Canal Treaty.

Letter Regarding Termination of Article XVII of the United States-Panama Air Transport Services Agreement.

3. Documents Which are not Implementing Agreements and Concern Activities of the United States Government in Panama not Directly Related to the Panama Canal Treaty.,

Agreement on Certain Activities of the United States of America in the Republic of Panama.

Agreement Pursuant to Article VI of the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.

Note Regarding Economic and Military Cooperation.

Exchange of Notes Relating to Air Traffic Control Services.

Note Regarding the Establishment of the Panama Bureau of the United States Foreign Broadcast Information Service.

Exchange of Notes Relating to the Gorgas Memorial Institute of Tropical and Preventive Medicine, Incorporated, and to the Gorgas Memorial Laboratory.

Exchange of Notes Relating to Scientific Activities in Panama of the Smithsonian Tropical Research Institute.

Exchange of Notes Relating to Custodianship of the Barro Colorado Native Monument by the Smithsonian Tropical Research Institute. Sincerely,

HERBERT J. HANSELL.

DEPARTMENT OF STATE,

Hon. JOHN SPARKMAN.

Washington, D.C., February 8, 1978.

Chairman, Committee on Foreign Relations, U.S. Senate.

DEAR MR. CHAIRMAN: This is in response to a request from your staff for clarification regarding the content of certain documents published in connection with the Senate's consideration of the Panama Canal Treaties.

First, the "Agreed Minute" to the Panama Canal Treaty constitutes an integral part of that Treaty and was accordingly bound together with the signed original text. The Agreed Minute was contained in the initial reproduction of the Treaty provided to members of the Senate by the Department, and in various public documents subsequently published by the Department. Unfortunately, the particular printing reproduced at pages 201-220 of the Committee's recent report (Exec. Rept. No. 95-12) did not include the Agreed Minute, and we regret any inconvenience this may have caused the Committee.

Second, we understand that some confusion has developed as a result of a printing error appearing on page 38 of the Committee print of the President's transmittal message (Exec. N). That document incorrectly identifies the Protocol to the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal as "Annex B". "Annex B" to the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal is in fact comprised of the maps which appear at pages 216-218 of the Committee's report, which correctly identifies them as such. Sincerely,

DOUGLAS J. BENNET, Jr.
Assistant Secretary
for Congressional Relations.

EXCERPTS FROM THE REPORT OF THE COMMITTEE ON FOREIGN RELATIONS ON THE PANAMA CANAL TREATIES (SEN. Ex. REPT. 95-12)

II. COMMITTEE RECOMMENDATIONS

On January 26, the Committee concluded its hearings on the proposed Panama Canal agreements. Senator Robert C. Byrd, the Majority Leader, appeared before

the Committee and testified in support of the agreements. In concluding his prepared statement, the Majority Leader addressed the Chair, and expressed "the hope that this Committee, in its recommendations to the Senate, will provide guidance as to how best to meet the concerns that many of us have about the treaties. *" He also cautioned the Committee not to create a situation that "would undercut all that has been done to move us toward a successful resolution of this matter." Following the Majority Leader's presentation, Chairman Sparkman suggested to the Committee that it approve the following course of action:

"Under the circumstances, it seems like it would be the best procedure for the committee to make its recommendations to the Senate on amendments, reservations, or understandings in the committee report, but not as specific proposals in the resolution of ratification. As I understand it, that is in conformity with the wishes of the Majority Leader and the Minority Leader, I believe.

"This will allow the committee to make its views known to the Senate on specific amendments, reservations and understand ings, and at the same time permit all members of the Senate to have maximum participation in the shaping of the Senate's action on these treaties. There will, of course, be recorded votes in the committee on any major proposal presented, and these votes will be recorded in the committee report.

"I recognize that this procedure is unusual, and I may say that as a matter of fact I myself would have much preferred following the more usual route. But we are in an unusual situation and we do have the well-expressed views from the Majority Leader and the Minority Leader. For that reason and since it is an unusual problem I think a departure from the standard committee procedure is justified if that is necessary to enable the Senate best to work its will on such an important issue." This procedure had been discussed earlier with the Senate leadership and members of the Committee. Following its formal presentation to the Committee, Senator Case moved its adoption and the Committee approved it without objection.

The Committee does not view the procedure as a precedent-setting departure from established practice. Quite the contrary-the Committee views the procedure as unique, but one which is necessitated because the situation posed by the consideration of the Panama Canal treaties is in many ways unique.

This point was made clear in the following exchange between Senator Pell and the Majority Leader on January 26:

Senator PELL. Thank you, Mr. Chairman.

I have no questions and no real statement except to say that I hope this procedure would not become a precedent. I recognize the political imperatives that call for every member of the Senate to vote in order to show his position to his own constituents at home on the matter.

With the inclusion of the recommendations listed below, the Committee's support for the treaties is virtually unanimous—with 14 members supporting ratification and only one opposing.

Because the Committee firmly believes that ratification of the treaties will best serve our national interests, it agrees to depart from standard practice and to include its recommendations in the Committee's report instead of in the resolutions of ratification.

In the Committee's view, the ultimate purpose is to serve the national interest by gaining ratification of the treaties in a manner that is fully acceptable and legally binding on both parties. To achieve this objective, two-thirds of members of the Senate present and voting must consent to ratification. In the Committee's opinion, the likelihood of securing this vote will be enhanced substantially by permitting the full Senate to work its will on the treaties and the resolutions of ratification without any formal encumbrances on them.

In taking this course of action, however, the Committee by no means intends to denigrate the importance of the specific recommendations listed below. Indeed, the Committee's strong support for the treaties is based, in large part, upon the recommendation approved overwhelmingly by the Committee. Without them, particularly the amendments to the neutrality treaty, many members of the Committee might have considerable reluctance in urging the Senate to ratify this agreement. But the Committee explicitly did condition its favorable recommendation with respect to the resolution of ratification accompanying the Panama Canal Treaty upon the Senate's approval of the resolution of ratification accompanying the Treaty Concerning the Permanent Neutrality and Operation of the Canal.

Conversely, the Committee believed it undesirable to make any recommendations beyond the ones it approved. During its mark-up sessions, members of the Committee considered all of the amendments, reservations and understandings which had

been introduced up to that point, plus additional measures offered by the members themselves. It either rejected or set aside all of them except for two amendments and four understandings (two of which are identical). The two amendments approved by the Committee serve to incorporate the language of the Carter-Torrijos communique into the neutrality agreement.

The adoption of these Committee amendments made many other amendments moot, such as those offered by Senator Hollings, and Senator Dole, and Senator Bentsen. Their amendments were designed for the same purpose and each of the Senators along with the Majority and Minority Leaders-deserve much of the credit for underscoring the importance of this issue. The Committee wishes to express its gratitude to all of them.

All of the other measures presented for consideration were rejected by the Committee. In the Committee's view, this action was necessary because the adoption of any of them would serve only to cripple the treaties and to render them unacceptable. Additionally, approval of any of these provisions would seriously raise the prospect of requiring the Government of Panama to hold another plebiscite. In the Committee's view, it is desirable to avoid such a requirement to the maximum extent possible. The recommendations listed below accord with this view and do not run the risk of requiring another Panamanian plebiscite. The Committee's opinion in this regard is based on conversations with General Torrijos and other Panamanian officials, plus spokesmen from our own executive branch.

A. Amendment incorporating in article IV of the Neutrality Treaty the rights of defense set forth in Carter-Torrijos joint statement

The Committee recommends that article IV of the Neutrality Treaty be amended by adding at the end thereof the following:

A correct and authoritative statement of certain rights and duties of the Parties under the foregoing is contained in the Statement of Understanding issued by the Government of the United States of America on October 14, 1977, and by the Government of the Republic of Panama on October 18, 1977, which is hereby incorporated as an integral part of this Treaty, as follows:

"Under the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (the Neutrality Treaty), Panama and the United States have the responsibility to assure that the Panama Canal will remain open and secure to ships of all nations. The correct interpretation of this principle is that each of the two countries shall, in accordance with their respective constitutional processes, defend the Canal against any threat to the regime of neutrality, and consequently shall have the right to act against any aggression or threat directed against the Canal or against peaceful transit of vessels through the Canal.

"This does not mean, nor shall it be interpreted as, a right of intervention of the United States in the internal affairs of Panama. Any United States action will be directed at insuring that the Canal will remain open, secure, and accessible, and it shall never be directed against the territorial integrity or political independence of Panama."

(See statement of intent regarding recommendation B, below.)

B. Amendment incorporating in article VI of the Neutrality Treaty the rights of priority passage set forth in the Carter-Torrijos joint statement

The Committee recommends that article VI of the Neutrality Treaty be amended by adding at the end thereof the following:

In accordance with the Statement of Understanding mentioned in Article IV above: "The Neutrality Treaty provides that the vessels of war and auxiliary vessels of the United States and Panama will be entitled to transit the Canal expeditiously. This is intended, and it shall so be interpreted, to assure the transit of such vessels through the Canal as quickly as possible, without any impediment, with expedited treatment, and in case of need or emergency, to go to the head of the line of vessels in order to transit the Canal rapidly."

STATEMENT OF INTENT

The Committee's intent in recommending the adoption of these two amendments to the Neutrality Treaty is that the Carter-Torrijos Joint Statement of October 14, 1977, be made an integral part of the treaty with the same force and effect as those treaty provisions submitted to the Senate initially for its advice and consent.

The Committee had originally voted to include the Joint Statement in a single amendment which would have added as a new article IX to the treaty. Upon being advised by the State Department-contrary to previous advice-that this placement could require a new Panamanian plebiscite, the Committee voted to reconsider the

proposed article IX and voted instead to recommend the addition of that same material, in two parts, to articles IV and VI. This did not represent a "flip-flop"; in each instance the substantive wording was identical to that of the Joint Statement, and each provision-whether placed in one article or in two-would have had precisely the same legal effect, being equally binding internationally. The difference is purely one of cosmetics. If a negligible change in form, with no change whatsoever in substance, could obivate the need for a new plebiscite an eventuality which could complicate vastly the ratification process-then the Committee concluded that it would happily oblige.

The meaning of these amendments, which together constitute the entire Joint Statement, is plain. The first amendment relates to the right of the United States to defend the Canal. (It creates no automatic obligation to do so. See p. 74 of this report.) 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 if 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.

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 Panama," and which prohibits the United States from acting "against the territorial integrity or political independence of Panama." The Committee notes, first, that these provisions prohibit the United States from doing nothing that it is not already prohibited from doing under the United Nations Charter, which proscribes "the threat or use of force against the territorial integrity or political independence of any state" (article 2(4)). The Committee never supposed that the United States, in entering into the Neutrality Treaty, intended to obtain powers that it had previously renounced. The Committee thus does not believe that the provision in question substantively alters existing United States commitments to Panama.

Second, the prohibitions set forth in the second paragraph do not derogate from the rights conferred in the first. The Joint Statement recognizes that the use of Panamanian territory might be required to defend the Canal. But that use would be for the sole purpose of defending the Canal-it would be purely incidential to the Canal's defense; it would be strictly a means to that end, rather than an end in itself; and it would not be carried out for the purpose of taking Panamanian territory. The concepts of the territorial integrity and political independence of Panama are, in short, an integral part of the treaty, so that action directed at preserving the regime of neutrality set forth in the treaty would never be directed against Panama's territorial integrity or political independence.

For these reasons, use of Panamanian territory to defend the Canal would clearly be permissible under the portion of the Joint Statement incorporated in Article IV. This is made clear in an opinion presented to the Committee by the Department of Justice (hearings, part 1, p. 332):

"A legitimate exercise of rights under the Neutrality Treaty by the United States would not, either in intent or in fact, be directed against the territorial integrity or political independence of Panama. No question of detaching territory from the sovereignty or jurisdiction of Panama would arise. Nor would the political independence of Panama be violated by measures calculated to uphold a commitment to the maintenance of the Canal's neutrality which Panama has freely assumed. A use of force in these circumstances would not be directed against the form or character of composition of the Government of Panama or any other aspect of its political independence; it would be solely directed and proportionately crafted to maintain the neutrality of the Canal."

Finally, 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.

The meaning of the recommended amendment to article VI is equally clear. This provision-extracted verbatim from the Joint Statement-confers upon United States warships and auxiliary vessels the right to go "to the head of the line" in an "emergency". What constitutes an emergency, and when one exists, is for the

United States and the United States alone to determine. The provision could hardly be more explicit.

Like the recommended amendment to article IV, this amendment, if adopted by the Senate, will become an integral part of the treaty, of the same force and effect as all other provisions. The Committee is informed by the Department of State that the Government of the Republic of Panama has concluded that no new plebiscite will be required for the approval of the two amendments. Together, they comprise the verbatim text of the Joint Statement, which was read by General Torrijos to the people of Panama live on national television three days before the October 23 plebiscite. (See p. 478 of part 1 of the hearings for a list of Panamanian newspapers in which the Joint Statement appeared prior to the holding of the plebiscite.) It thus is clear that the Panamanian people were fully apprised of the Joint Statement prior to the plebiscite, and were accorded a full opportunity to consider its provisions before approving the treaties.

C. Understanding regarding the requirement to conclude a prisoner transfer agreement (article IX (11), Panama Canal Treaty).

The Committee recommends that the resolution of ratification to the Panama Canal Treaty be amended by striking out the period at the end thereof and inserting in lieu thereof a comma and the following: "subject to the following understanding:

'Any agreement concluded pursuant to article IX, paragraph 11 with respect to the transfer of prisoners shall be concluded in accordance with the constitutional processes of both parties"

STATEMENT OF INTENT

Article IX (11) of the Panama Canal Treaty provides as follows:

"11. The Parties shall conclude an agreement whereby nationals of either State, who are sentenced by the courts of the other State, and who are not domiciled therein, may elect to serve their sentences in their State of nationality.'

The Committee intends, through the above understanding regarding this provision, to make clear (1) that any agreement negotiated on this subject be submitted to the Senate as a treaty for its advice and consent to ratification; and (2) that should the Senate not give its advice and consent to the ratification of such an agreement, the United States will not be in violation of this provision.

As paragraph 11 of article IX is drafted, it can be construed as authority for the President to enter into a prisoner transfer agreement with Panama as an executive agreement. This, in the Committee's judgment, would be undesirable; United States practice with respect to such agreements, limited though it is, has been that they be concluded as treaties. Sound policy reasons underlie this procedure. Prisoner transfer arrangements are significant international agreements; they involve important foreign policy judgments regarding the criminal justice systems and human rights practices of the countries proposed as parties to such arrangements. The Treaty Clause requires that, normally significant international commitments be made with the concurrence of two-thirds of the Senate. Acting on the basis of his sole constitutional authority, the President would be without the power to enter into such an agreement. By removing any possibility that this provision may be relied upon as a source of authority for the conclusion of such an agreement, and by requiring that the agreement be entered into "in accordance with the constitutional processes" of the United States, this addition to the resolution of ratification will state the understanding of the Senate that any such agreement must be submitted to the Senate as a treaty, which is the mode contemplated by our "constitutional processes".

The understanding will, moreover, clarify the international commitment undertaken by the United States in this provision. As paragraph 11 has been drafted, it could be construed as requiring the United States to enter into a prisoner transfer agreement, and would thereby place the United States in violation of this treaty should the United States elect not to do so. Obviously, the authority of the Senate to advise and consent to a treaty is meaningless if it is required to be given; the authority to disapprove is implied if our "constitutional processes" are to be upheld. The effect of the reference to "constitutional processes" is thus to make clear that a right of choice is maintained. Although this understanding should not be interpreted as suggesting a disinclination to advise and consent to such a treaty, paragraph 11 should not be construed, pursuant to it, as circumscribing the authority of the Senate to exercise the full measure of its constitutional discretion.