including actions aimed at internal threats, including actions in a situation in which Panama was on the other side and including actions which at least in part took place in the territory of Panama.

Now, in reaching that conclusion, there are really three sets of legal kinds of considerations that we have to use as a yardstick.

The first of those is the bilateral agreement between the parties themselves. I think that agreement does in essence what I have just said. It is not intervention, by the way. I don't think that was intended. It is a narrow right. It is the kind of right to go in for particularly narrowly drawn purposes.

Incidentally, I must say that if the understanding were not present, though the kind of interpretation I have given you would not be inconsistent with article IV of the treaty, I would find article IV ambiguous on that point.

Now, if we go to the second basis it is the question of the United Nation Charter and here I think I would agree with Professor Baxter. It is basically an external threat. It is something permitted under article 51 of the charter and if it is an internal threat it is something that is permitted under article II-IV because it is not aimed at the territorial integrity or political independence of Panama.

The third is the OAS system, and basically that sets out the fundamental principles of the charter. There are some modifications we can discuss if you would like. My conclusion is this would basically be the

same.

QUESTION OF MODALITY TO EXPRESS UNDERSTANDING CLEARLY

Now, on the third and final point, the question of what modality to express this understanding clearly in the agreement, there are a number of choices. One could be a unilateral understanding by the United States in the agreement. That would not, from my personal standpoint, meet the test of clarity of making sure that Panama has agreed to the same thing that we have.

A second possibility is a signed memorandum of understanding or a signed exchange of notes which is appended to the treaty or accompanies the treaty and accompanies it in Senate advice and consent. That is something that was done in the last treaty we had with Panama.

The Eisenhower-Remon Treaty used a signed joint statement of understanding and, in my judgment, that would meet all the legal criteria of incorporating this fully. It would be the simplest thing to do. All it requires really is a signature and a joint statement to be sent down by the administration with respect to that, and I personally would favor that as the best of the modalities.

A third is the question of reservation and there it could be a unilateral reservation. Once again, you have the difficulty that the other side has not necessarily accepted it, so it is ambiguous.

Next would be a reservation which both sides have accepted. If you have a reservation which both sides have accepted, then I don't think that is a problem from an international legal standpoint, but there is still an implication, which is unfortunate, that in fact the language of the treaty was wrong and the reservation is making a change in that

language and that could create some problems with the question of do you hold another plebiscite or if you don't hold another plebiscite you have admitted in essence that there has been a needed change, that the language was not right, it is not being interpreted, it is being reserved

too.

With respect to the amendment you get into many of the same problems as the reservation except you do not have the implication necessarily that in fact the language was wrong and you are not having an interpretation you are changing. There is still an overtone of that. The amendment, however, does not do anything more from an international legal standpoint than the joint statement of understanding. I would like to stress that. The joint statement of understanding would have precisely the same legal effect in protection for the United States as would the amendment.

Senator JAVITS. As would also an agreed upon reservation?

Mr. MOORE. That is correct, with both sides agreeing to it. But there is the one last point, and I am sorry I have exceeded my time, so I shall stop with this. On the question of the amendment, and I think it also follows on the question of the jointly agreed reservation, as opposed to the joint memorandum of understanding, we are in those cases in a sense taking a risk of what the other side does with it on the plebiscite issue. If no plebiscite is held, we have admitted in a sense in those cases that the language was wrong, it is an interpretation, it is a change. If a plebiscite is held, then we may have the situation of this one being called "the Yankee plebiscite, we had to have it because it was forced upon us." We have already had one plebiscite. That could create some problems and if no plebiscite is held at all then you get to the question of whether this change is something that introduces a lack of clarity.

I am not saying strongly that we should not do any of these things. I think this is one of the questions that the Senate must decide, but my own preference is for a joint memorandum of understanding. [Mr. Moore's prepared statement follows:]

PREPARED STATEMENT OF JOHN NORTON MOORE1

Mr. Chairman, it is a pleasure and a privilege to meet with this Committee to discuss the proposed Panama Canal Treaties. The decisions to be made by the Senate in considering advice and consent to these treaties will be of profound importance for all Americans.

In considering the Panama Treaties, my statement will be organized in three parts: General views on the nature of United States interests and choices concerning the Canal; analysis of the principal international-legal issues, particularly the transit and defense rights under the Treaties; and analysis of the constitutionally permissible modalities for Congressional approval of the Treaties.

GENERAL VIEWS

The question facing the Senate and the Nation is not whether the Panama Treaties are in all respects ideal. In common with many Americans, and I

1 Walter L. Brown professor of law and director, the Center for Oceans Law and Policy, the University of Virginia. Formerly Counselor on International Law to the Department of State, Chairman of the National Security Council Interagency Task Force on the Law of the Sea, and U.S. Ambassador to the Third United Nations Conference on the Law of the Sea. The views expressed are solely my own and are not made on behalf of and do not necessarily represent the views of any institutional or governmental entity with which I have been associated, including the University of Virginia and the Center for Oceans Law and Policy.

would expect even our treaty negotiators, I do not believe the treaties are ideal. Indeed few are since by definition a treaty is an agreement which, if meaningful, has been bargained for and is the product of compromise. Rather, the question is whether United States interests are better served by the treaties, with any necessary clarifying understandings, or by the context that can reasonably be expected should the treaties fail. I believe the answer to this question is that the treaties better serve our interests and should be ratified, assuming clear acceptance by both sides of the Carter-Torrijos understanding clarifying United States defense rights.

It need not detract from the remarkable achievement of the United States in building the Canal, an achievement in which we can take great pride, to recognize that a treaty suitable in 1903 may not present the most appropriate basis for United States-Panamanian relations in 1978. Every American President since Lyndon Johnson has recognized that fact and has been committed to renegotiation of the 1903 Hay-Bunau-Varilla Treaty. Similarly, Latin American countries, sensitized to issues of equality in United States relations with the hemisphere, have indicated that settlement of the Canal issue with Panama "is a matter of common interest and high priority for Latin America ***."2 The reality is that the United States and Panama have had a significant dispute about the Canal for much of the more than half century since the Canal has been in operation. The core of that dispute has been the question of residual or "titular" sovereignty over the Zone left in doubt by the language of Article III of the 1903 treaty which granted the United States rights within the zone "which the United States would possess and exercise if it were the sovereign of the territory * * * ." Increasingly the dispute has also focused on fairness in

distribution of Canal benefits.

If the United States can settle the long Canal dispute by new agreements with Panama, it is in our interest to do so both to enhance the basis for stable Canal operations and to demonstrate that the strength of a truly great power is not just its firmness but rather its firmness in defense of the common interest. Such new agreements, to be viable and fair, must also protect important United States interests in the Canal. Fortunately it may be possible to recognize both Panamanian aspirations for a new regime and the essential national and common interests in the Canal. Those interests are, I believe, that the Canal will remain open to all vessels, without discrimination, under just and reasonable conditions, and that the United States as builder and principal user of the Canal will retain the right to defend against any threat to assured transit of vessels. Indeed, the United States may remain legally obligated by the Hay-Pauncefote Treaty of 1901 with the United Kingdom to maintain such assured access and neutralization of the Canal.*

Both to deter future conflict and to protect the core national and common interests in the Canal, these access and defense rights should be clearly recognized and endorsed by any new treaties. We should not repeat the mistake of the past and accept ambiguity on core interests as good enough. Instead a good arrangement should reflect a genuine understanding clearly accepted by all parties.

THE INTERNATIONAL-LEGAL ISSUES

The "Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal" is intended to go into effect simultaneously with the "Panama Canal Treaty" and to last in perpetuity, unlike the Panama Canal Treaty which by its terms would expire on December 31, 1999. As such, the "Neutrality Treaty" is the more important and enduring legal basis for permanent access and defense rights. Articles I, II, III and VI of the Neutrality Treaty establish the basis for assured navigational rights through the Canal for vessels of all nations. In my judgment the legal guarantees of transit contained in these articles are strong and in several significant respects stronger for modern conditions than those in

2 Statement of the Latin American Foreign Ministers Conference for Hemispheric Cooperation, held at Bogota, Nov. 16. 1973.

3 Art. III of the 1903 Isthmian Canal Convention (emphasis added).

4 Art. III of the Hay-Pauncefote Treaty pledges free navigation and neutralization of the Canal based on the 1888 Constantinople Convention for the Suez Canal. Art. IV of the Treaty then provides: "It is agreed that no change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the High Contracting Parties under the present Treaty."

effect under Article III of the Hay-Paunchefote Treaty.5 Thus, there is an obligation that the Canal shall be operated "efficiently" and that rules and regulations for transit shall be "reasonable" as well as "just and equitable." In addition, such rules and regulations are “limited to those necessary for safe navigation and efficient, sanitary operation of the Canal." Finally, there is an additional provision in Article VI (1) unmistakably guaranteeing transit rights of United States and Panamanian warships and auxiliary vessels "notwithstanding any other provisions of this Treaty."

There are, however, two ambiguities on transit rights of possible concern. I raise them largely to make a record that in my judgment reasonable interpertation of the Neutrality Treaty requires favorable interpretation on both points. If the Senate is concerned with either ambiguity it would seem an easy matter to further clarify the point as part of a general understanding.

First, it is important that the transit rights provided by the treaty apply from high seas to high seas, that is beginning and ending at the seaward limits of Panamanian Caribbean and Pacific territorial or other oceans claims. At the present time Panama and the United States claim different territorial sea limits. The United States recognizes a three nautical mile territorial sea (as opposed to its 200-mile coastal fisheries claim), Panama claims a 200-mile territorial sea and at least if the Law of the Sea Conference is successful we seem to be heading toward a twelve-mile limit. Pursuant to Annexes A and B of the Neutrality Treaty the treaty area is defined to include Panamanian territorial sea areas around the entrance to the Canal delimited pursuant to the three-mile limit. This is an obvious device to avoid introducing law of the sea hassels in the Canal issue. But as a result it is remotely possible that Panama would feel free to apply the more restrictive "innocent passage" provisions as they claim to apply them beyond the three-mile area out to 200 miles. I do not believe such an interpretation to be sound. By any reasonable test of major purposes the Panamanian guarantees must apply from high seas to high seas regardless of any change in oceans jurisdictional limits. I would be surprised if this were not also the Panamanian interpretation."

Second, since Article VI (1) provides an unambiguous right of transit for United States warships and auxiliary vessels "irrespective of their internal operation, means of propulsion, origin, destination * * * or cargo carried," by negative implication it is arguable that these features could be the basis for discrimination against certain categories of commercial vessels. To avoid this kind of problem we did not accept any such differentiation between warships and commercial vessels in the definition of transit rights in the law of the sea negotiations. Once again, however, I do not believe such an interpretation to be sound. For pursuant to Article III 1(a) all rules, regulations and conditions of transit must still be "reasonable" and "limited to those necessary for safe navigation and efficient, sanitary operation of the Canal." Moreover, Article VI (1) seems intended to provide “expeditions" transit for United States and Panamanian warships and auxiliary vessels and to make transit rights for those vessels doubly clear rather than to provide a standard for discrimination against commercial vessels.

As a final point on transit rights, although the Neutrality Treaty makes no reference to the claim, some have referred to the Canal as a "Panamanian national resource." The notion that an international canal is a national resource is, I believe, unsound and fails ot consider the strong community common interest in access through such canals. The United States has consistently rejected such claims with respect to straits used for international navigation. In addition, the United States has not sought to operate the Canal as a profit venture and I do not believe it would be "just, reasonable and equitable" to seek to extract maximum economic rent at the expense of the international community.

Turning to United States defense rights, Article IV of the Neutrality Treaty is the only article in the treaties laying a permanent basis for such rights, alhough the "Canal Treaty" has a much more detailed regime explicitly spelling

5 The transit guarantees of art. III, sec. 1 of the Hay-Pauncefote Treaty are incorporated by reference as the transit standard in the 1903 Hay-Bunau-Varilla Treaty by art. XVIII of that treaty.

As with any lengthy treaty there are, of course, always a myriad of minor ambiguities and I have not sought to identify all of them here.

The United States, of course, would still be free not to recognize the Panamanian 200-mile claim and on sound ground in rejecting it. Moreover, we are not much worse off in this regard than at present under the 1903 treaty whichalso includes no explicit guarantees of transit rights beyond three nautical miles.

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out such defense rights prior to the year 2000. Pursuant to Article IV of the Neutrality Treaty: "The United States of America and the Republic of Panama agree to maintain the regime of neutrality establsihed in this Treaty, which shall be maintained in order that the Canal shall remain permanently neutral, notwithstanding the termination of any other treaties entered into by the two Contracting Parties."

There is nothing in this article inconsistent with the right of the United States, acting alone if necessary, to use force to defend the Canal or transit rights of vessels through the Canal. Indeed it seems consistent with a continuing United States legal obligation in this regard under the Hay-Pauncefote Treaty. That is, we agreed under the Hay-Pauncefote Treaty to guarantee the neutrality of the Canal, including transit rights, and Article IV seems to reenforce that right. Without more, however, this article is only an ambiguous basis for clear recognition of the United States defense rights after the year 2000. Moreover, since this is one of the core United States interests it would seem important to reduce any basis for future disagreement with Panama on this issue.

As such I was pleased to see the Carter-Torrijos "Joint Statement of Understanding" of October 14, 1977. If both Panama and the United States are clear that this understanding reflects the correct interpretation of the Neutrality Treaty then I believe permanent United States defense rights in the Canal are reasonably well protected as a matter of legal right. That understanding seems to contemplate that the United States, acting alone if necessary, can use force to defend against any "threat directed against the Canal or against the peaceful transit of vessels through the Canal."

Any United States action must 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." Similarly it is not "a right of intervention *** in the internal affairs of Panama." This wording seems broad enough to include any external or internal threat to assured transit, including denial by Panama of such rights and including actions on Panamanian territory, provided any such actions are necessary, reasonable, and aimed solely at ensuring transit rights through the Canal. Moreover, I believe retention of such a right by a guaranteeing power is consistent with general international law, including the United Nations Charter and the treaties of the OAS system. In essence the United States as builder and principal user of the Canal has undertaken to guarantee the Canal neutrality, including transit rights through the Canal. As long as any necessary use of force in defense of those rights is reasonable and carefully limited to those objectives it would not seem a "use of force against the territorial integrity or political independence of any state ***." proscribed by both the understanding and the United Nations Charter. Moreover, the legal case would seem even stronger since the treaties and understanding simply retain for the United States a defense right we have had since 1903. With respect to the treaties of the Inter-American System (OAS), however, there may be a potential ambiguity under Articles 20 and 22 of the Revised Charter of the Organization of American States, which is binding on the United States in relations within the hemisphere.

Article 20 provides: "The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever."

Article 22 then goes on to provide that "Measures adopted for the maintenance of peace and security in accordance with existing treaties do not constitute a violation" of this principle. If the defense rights to be retained by the United States and that are now exercisable pursuant to the 1903 treaty,-an "existing treaty" under Article 22-, are properly viewed as continuing under Article 22, as I believe they should be, there is no problem. Moreover, I do not believe that Article 20 contemplated the situation of a specific retention of defense rights by the United States pursuant to clarification of a dispute with Panama concerning sovereignty over the Canal. It might be useful, however, to examine whether any minor changes in the understanding might be desirable to clarify the general interrelation with the OAS system. We should also remember that a Protocol to the Treaty is contemplated that would be open to all nations and that would make clear the continuing United States right, indeed obligation, to "ensure permanent access to the Canal by vessels of all nations . . This Protocol, to the extent signed by our OAS treaty partners, would be later in time than the OAS Charter