[From the Congressional Record-Senate, Jan. 19, 1978]

THE PANAMA CANAL TREATIES-EXECUTIVE N, 95-1

AMENDMENTS NOS. 10, 11, AND 12

(Ordered to be printed and to lie on the table.)

THE PANAMA CANAL TREATIES: AMENDMENTS ARE KEY TO

EFFECTIVE GUARANTEES

Mr. DOLE. Mr. President, it now appears likely that the Panama Canal Treaty proposals will reach the Senate floor for consideration during the 2d session of the 95th Congress. It promises to be an historic debate, and certainly one that will lead to a full examination of our future defense and economic interests in the Western Hemisphere. We should be prepared to spend sufficient time on the issue to fully discuss all major features of the canal treaties, given the broad extent of public interest in the matter.

During the past several months, I have devoted a good deal of time and attention to the treaty issue. I have studied and reflected upon the fundamental issues that are involved. I have offered fresh perspectives on several provisions of the treaties which appear to be of exceptional significance to the U.S. interests in years to come. In doing so, I hoped to stimulate a more careful consideration of these treaties and their implications for our country.

In this regard, I submitted six treaty amendments and two reservations on September 23. On October 5, in an appearance before the Senate Foreign Relations Committee, I expressed concern about conflicting interpretations of key treaty provisions by Panamanian and American negotiators. Following the release of the CarterTorrijos "statement of understanding" concerning defense and passage rights provisions, I submitted two additional amendments to make those clarifications a part of the neutrality treaty itself on October 17. In late December, I was able to spend a day and a half in the Panama Canal Zone, where I gained additional insight into canal operations and treaty issues in general.

NEW AMENDMENTS

At this time, as in executive session, I propose three additional amendments to the canal treaties, which I hope will be thoroughly considered during the forthcoming debate. In my opinion, these revisions would better protect our ability to defend the Panama Canal against the threat of attack, and would better guarantee our perpetual access to an interoceanic canal in Central America.

Mr. President, I ask unanimous consent that the texts of my three amendments be printed in the Record at this point.

There being no objection, the amendments were ordered to be printed in the Record, as follows:

(759)

AMENDMENT No. 10 (EXEC.) To Ex. N, 95-1

In article XII, strike out paragraph 2.

Renumber subsequent paragraphs accordingly.

AMENDMENT No. 11 (EXEC.) TO Ex. N, 95-1

At the end of article IV, add the following:

6. For the duration of this Treaty and consistent with the other provisions of this article, both Parties agree that, subject to the other provisions of this Treaty, only the Republic of Panama or the United States of America may maintain military forces, defense sites, or military installations in the national territory of the Republic of Panama.

AMENDMENT No. 12 (EXEC.) To Ex. N, 95-1

Before the period at the end of article V, insert a comma and the following: "except that, in order to maintain the regime of neutrality established under this Treaty, the United States of America and the Republic of Panama shall conclude an agreement on the continued availability to the United States of America of any defense site or military installation after the date of the termination of the Panama Canal Treaty, and if no such agreement may have been concluded before such date, the United States of America may continue on and after such date to occupy the defense sites and military installations made available for its use under the Panama Canal Treaty, notwithstanding the termination of the provisions of the Panama Canal Treaty".

Mr. DOLE. Mr. President, the first of these amendments would simply strike that section of the proposed Panama Canal Treaty which prevents the United States from negotiating with any country other than Panama for the right to construct an interoceanic canal in the Western Hemisphere. This is, in my opinion, an unnecessary and unduly restrictive limitation on our ability to safeguard our vital defense interests. Article XII of the treaty, as proposed, affectively binds the United States to construct a new canal in Panama if it should be determined that a modernized canal is desirable for defense or economic reasons. Yet, there is no commitment on the part of Panama to agree to permit construction of the canal, and we are only prevented from constructing one elsewhere.

This amendment is similar to one which I introduced on September 23. However, it is a more direct and simplified approach to this problem. Whether or not Panama is the best location for construction of a new canal is really not the immediate issue. The central question is whether the United States should bind itself, by this treaty, to foreclose all options with respect to a new canal. I submit that this would be a serious mistake on our part, and one which we might well regret prior to the year 2000.

The second of these amendments would amend the basic treaty to provide much the same type of assurance that is given under the neutrality treaty. That is, it would insure that no governments other than those of the United States and Panama may establish a military presence within Panama between the date of treaty ratification and December 31, 1999. This should not be construed as an impractical or unfair imposition upon the Government of Panama. It is a recognition of our mutual interest in protecting the canal and its neutrality from outside interference. In fact, the United States and Panama reached essentially the same agreement under article V of the neutrality treaty, covering the period after December 31, 1999. There should be no reason why our two governments

cannot express agreement on this vital provision. And, given our continuing concern about the threat of Soviet or Cuban military influence in the area, the guarantee should help resolve Senate concerns about the security of the canal during the coming decades.

My third amendment would insure that the United States has the authority to maintain a limited military presence within Panama following the expiration of the basic treaty-that is, after the year 1999. In my opinion, our ability to retain at least one or two base areas within the former Canal Zone will be vital to our ability to defend the neutrality of the canal at that time. This arrangement could be concluded under a separate base agreement, much like the United States currently has with the Government of Spain. My amendment would establish the basic authority for that agreement, and provide the necessary incentive for concluding such an agreement prior to the year 2000.

By doing so, we are not attempting to perpetuate a colonial presence in Panama. And we are not challenging the desire of the Panamanian people to establish control over the Canal Zone area. Instead, we are simply suggesting that, in order to facilitate our continuing defense responsibilities under the neutrality treaty, we be permitted to maintain a few basic defense installations on terms that would be acceptable to both the United States and Panama. As allies, and as mutual guarantors for the regime of neutrality, the United States and Panama should be able to reach an accommodation on this crucial point. In addition, I feel that this provision would substantially facilitate favorable Senate consideration of these treaties.

TREATY REVISIONS

Mr. President, when I first proposed certain treaty amendments and reservations last September, I expressed my conviction that this treaty must be modified directly through amendments or reservations in order to effectively insure that such changes would be recognized as legally binding in years to come. I emphasized this point again when I testified before the Senate Foreign Relations Committee on October 5. I still believe that, in order to prevent any misunderstandings in the future, we must resolve our misgivings about these treaties by directly amending the treaty language, or by attaching substantive reservations to the resolution of ratification.

I base my convictions on the authority of several scholars of international law, who have studied and analyzed historical precedents and the subtleties of international agreements.

One such expert in the field is Mr. Elmer Plischke, professor and head of the department of government and politics at the University of Maryland. In his book, "Conduct of American Diplomacy" (1967), Professor Plischke cites the following:

Amendments and reservations are differentiated in that the former constitute actual textual changes and, as such, even if acceptable to the President, require renewed negotiations to induce other signatories to accept them and thereby mutually incorporate them into the authentic text of the treaty

Reservations, on the other hand, are formal declarations accepting the treaty subject to specified interpretations, limitations, qualifications, or conditions, rather than requiring textual changes. • While other signatories must also be willing

to accept the reservations, they do not need to consider a draft revision, and the acceptance may be either express or tacit.

Prof. Louis Henkin, former consul to the U.S. Department of State and currently professor of law at Columbia University, also has provided clarification on the subject of treaty modifications in his book, "Foreign Affairs and the Constitution" (1972). Professor Henkin makes these observations:

In many cases the Senate has given its consent (to a treaty) with reservations. Whether the Senate insists on a modification in the terms of a treaty, or on a particular interpretation of it, or on some limitation of its consequences, reservation usually requires renegotiation one might say, the Senate withholds consent from the treaty presented to it but indicates what revised treaty will earn its consent, and gives it in advance to a treaty as so revised.

Sometimes the Senate can be persuaded to achieve clarification or even some modification of a treaty provision without entering a reservation, by expressing instead its "understanding" of the provision. If that understanding is communicated to the other party and is accepted or acquiesced in there is no issue and the treaty need not be reopened. There is danger, however, of failure of communication that may engender doubt and controversy as to whether the parties agreed to the same terms.

Based on these particular assessments, it would seem likely that the approval of substantive amendments could conceivably necessitate renegotiation of certain treaty provisions by interested parties. However, I am not nearly so concerned about that prospect as I am about the danger associated with treaty understandings, cited by Professor Henkin and others. That is the prospect that the understanding adopted by one party to a treaty may be misunderstood by the other party. It would be far better that the differences between Panama and the United States over the wording of this treaty be taken under review at this time for further negotiations, than that such differences be glossed over now and result in an international confrontation at some later point in time.

Although some may seek to "beg out" with understandings at this stage, I suggest that we might well end up only deluding ourselves while creating difficulties for a future President and a future Congress.

AMPLE PRECEDENT

Some will suggest, I suspect, that we are blazing a new trail or following an uncharted course in proposing substantive revisions to the treaties already negotiated by our able diplomats in the executive branch. This, of course, ignores both our constitutional mandate and ample historical precedent.

Article II, section 2 of the U.S. Constitution clearly gives the Senate the responsibility of "advice and consent" on treaties negotiated by our Chief Executive. And, in fact, we have every justification, from a historical perspective, for doing so.

Since the founding of this Nation, the Senate has directly amended numerous international treaties concluded by the executive branch. Of these, 73 treaties were ratified and enacted into law with Senate amendments intact. Over the same period of time, one treaty was enacted into law with Presidential amendments, 28 treaties were ratified with Senate reservations, and 16 treaties were ratified with Presidential reservations.

It seems to me that this data is important for two reasons: First, it indicates that there is abundant precedent for Senate initiative