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The treaty was signed by Secretary of State Hay and Bunau-Varilla November 18, 1903. Its text was cabled to the provisional government and also sent by ship. On November 26, 1903, the provisional government stated that the treaty would be ratified. It was unanimously approved by the provisional government of the New Republic of Panama on December 2, 1903, even though Amador and Boyd had previously and only temporarily been opposed to it for reasons which are not clear. The United States Senate ratified the treaty on February 23, 1904, by a vote of 66 to 14. J. The treaty
The United States was empowered to construct a canal through a zone ten miles in width. Colon and Panama City were not to be a part of the zone. However, sanitation, sewerage, water supply and maintenance of public order in these terminal cities were placed under United States control. Four little islands in the Bay of Panama-Perico, Naos, Culebra, and Flamenco—were granted to the United States. In addition, the United States had the right to expropriate any additional land or water areas "necessary and convenient" for the construction, operation, sanitation or defense of the Canal. In return, the United States guaranteed the independence of Panama. The treaty granted to the United States "all the rights, power and authority * which the United States would possess and exercise if it were the sovereign of the territory *** to the exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority." The State Department contends that this did not put the United States in the place of the sovereign. This amounts to stating that no nationneither the Republic of Panama nor the United States is sovereign.
The questions of sovereignty and title were presented squarely before the United States Supreme Court in the case of Wilson vs. Shaw, 204 U.S. 24 when it ruled on these questions. In its opinion, the Court stated inter alia : "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 **" The territory whereby the Canal Zone was ceded to the United States was ratified by an Act of Congress (33 Stat. 2234).
The Panama Repu had been born under the protection of the United States. It brought the conspirators what they most wanted not only for themselves but for all the people of Panama. Manuel Amador, its first president, inaugurated February 20, 1904, presided over what he described as boom times and an end to centuries of plague. A new nation had been born free of debt. It was a nation with an endowment in the form of $10 million in gold. The government set aside $ 750.000 for working capital; $2 million for public works. Six million was invested profitably in first mortgages on New York City real estate, the income from which provided adequate revenues for the Republic.
III. THE PENDING TREATIES—THE PANAMA GOVERNMENT AND DEFENSE
A. What would be their immediate effect?
The American people thus far, to the extent that they have been informed at all, have been given the impression that the treaties would he gradual in application. In what amounts to the most important respect of all, in my opinion, this is not so.
If the Panama Canal Treaties were to be ratified by the United States Senate, chief among the immediate results would be:
(1) Article I would provide that the Isthmian Canal Convention between the United States of America and the Republic of Panama signed in Washington November 18, 1903 would be immediately terminated and totally superseded. Whatever rights in and to the Canal Zone which the United States would have following the effective force of the treaty would rest entirely upon new and limited grants made by Panama to the United States.
Clearly there is no moral basis on which to predicate Panama's demand for surrender of the Canal Zone and termination of the 1903 Treaty. Let us now turn to the practical aspects.
(2) The United States would acknowledge the Republic of Panama as sovereign over the territory of what is now the Canal Zone.
(3) The Canal Zone would cease to exist.
(4) United States citizens in the former Canal Zone (employees, military personnel and their dependents) would no longer be under United States jurisdiction. All of them would be under the civil and criminal jurisdiction of
Panama. Unless waived by Panama, offenses by any of them would be tried and upon conviction sentenced by Panama.
(5) The United States would cease to have police power in the former Canal Zone.
(6) All police, fire protection, street maintenance, street lighting, street cleaning, traffic management and garbage collection in the former Canal Zone will be provided by Panama. (United States pays ten million dollars per year for this, adjusted upward for inflation in Panama.)
(7) Defense of the Canal becomes joint under a combined Board of senior military officers of equal numbers of Panamanian and U.S. officers.
(8) The Panama Railroad and all other land and fixed properties (not specifically otherwise delineated in the implementary agreements for the life of the new treaty) become the absolute property of Panama at once.
(9) Article III provides that the Republic of Panama, as territorial sovereign, migrants to the United States the rights to manage, operate and maintain the
Panama Canal in accordance with the terms of the Panama Canal Treaty and its related agreements.
(10) Article XI provides that upon the coming into force of the treaty :
"The Republic of Panama shall resume plenary jurisdiction over the former Canal Zone."
During a 30-month transition period, Panama would permit the authorities of the United States to have the primary right to exercise criminal jurisdiction over
United States citizen employees of the Panama Canal Commission and their i employees and over members of the United States forces and civilian components and their dependents :
(i) for an offense committed during the 30 months within the former Canal Zone and (ii) for any offense committed prior to the effectiveness of the treaty. For the 30-month transition period, the United States shall retain police authority and maintain a police force in the former Canal Zone. The courts may continue to function during the 30-month period except that such courts may not take any new civil cases but may only dispose of pending civil cases." B. What about the transfer of property?
Article XIII provides that upon termination of the new treaty "The United States of America transfers, without charge, to the Republic of Panama, all right, title and interest the United States of America may have with respect to all real property including nonremovable improvements thereon, not already so transferred when the new treaty becomes effective."
The United States not only receives no compensation, it pays the Republic of Panama for having created the Canal. The treaty states that during the period the new treaty is in force, the United States will provide Panamá with a "just and equitable return on the national resources which it has dedicated to the operation, maintenance, protection and defense of the Panama Canal." These payments from revenues require 30 cents per net ton adjusted upward for any increases in tolls over the years. This would amount to from $50 to $60 million per year. In addition, a fixed annuity of $10 million which will constitute a fixed expense of the Panama Canal Commission-over and beyond this, an annual amount of $10 million additional to the extent that operating revenues exceed the expenditures of the Panama Canal Commission. If in any year the expenses do exceed the revenues, this unpaid additional $10 million or any unpaid portion thereof is cumulative, and so that in any year when the operating surpluses exist, such surplus shall be applied to the cumulative backlog. What Panamanian resources ? C. What about defense?
Article IV-Protection and Defense appears to stipulate that the United States during the life of the treaty has the primary responsibility to protect and defend the Canal. As stated above, defense is to be joint. It will NOT be as it is now.
The rights of the United States to station, train and move military forces within the Republic of Panama are very specifically limited by another agreement. This agreement is entitled "Agreement and Implementation of Article IV of the Panama Canal Treaty.” This collateral agreement which is not called a treaty hut which nevertheless would be carried into force by the treaty defines the legal status of our armed forces, the use of areas and installations and the movement of our forces.
With respect to our armed forces, Article VI of this collateral agreement provides inter alia the authorities of the Republic of Panama shall have criminal jurisdiction over the members of the Forces (U.S. Armed Forces), the civilian component thereof and their dependents. Within the perimeter of a defense site, offenses committed by such personnel which are criminal acts according to the United States law are by permission of the Republic of Panama subject to the United States. In other cases, Panama also would agree to waive, subject to review, criminal jurisdiction when an act committed off the base is solely against the property or security of the United States.
Acts committed off the base arising out of an official act or an omission in the course of an official act are subject to Panamanian criminal jurisdiction unless waived. The joint committee will review a certificate of the United States that such an offense was committed in line of duty but there is no provision as to what happens if the joint committee does not agree. Quite obviously, the offense would be subject to Panamanian criminal jurisdiction.
The agreement and implementation of Article IV with certain exceptions is not unlike agreements entered into by the United States governing “Status of Forces" with nations in which we have stationed our forces on bases in a host country, such as for example the Philippines or the Federal Republic of Germany, Italy or Spain, and to some extent the agreement with Japan. Such agreements can work only if the host country so wishes and so desires. In reading this long supplemental agreement of XXII Articles, it would require an exceptional abundance of goodwill on the part of Panamanians to work at all.
Some provisions such as Article XVIII are somewhat ludicrous, for example. It provides that the United States may furnish educational, sanitary and medical services to the members of its armed forces, their civilian components and dependents. For the most part, it is we who have undertaken to teach sanitation to the Panamanians and it is quite difficult to understand why on a military base for the duration of the main treaty it must be by permission. I do not think this is the case in other Status of Forces treaties, some of which in the past I have negotiated myself for the United States. D. Other defense aspects of importance
Of the fourteen military bases now in the Canal Zone, only four will remain available to the United States and these will be under direct Panamanian ciril and political jurisdiction. As previously noted, Article IV of the agreement and implementation of Article IV of the treaty indicates that whereas the U.S. forces have responsibility for control of entry to defense sites, the Republic of Panama may share in the exercise of this control in a manner to be agreed upon in the Joint Committee. Any signs which delineate the existence of a defense site used by the United States are to be in English and Spanish and on each sign it will be necessary to say and state in both languages that “The sign is erected under the authority of the Republican of Panama.”
The emplacement of any type of nuclear armament whatsoever is prohibited to the United States under paragraph 6 of Article IV of the agreement and implementation of Article IV of the treaty.
Even within defense sites, the Panamanian flag occupies the position of honor and is flown on each of them. Flying the flag of the United States is permitted but the joint committee will determine the manner of displaying the flags. At the entrance to a defense site, only the flag of Panama will be flown. E. There is no right to intervene after treaty expiration
Much has been said by the State Department and by The President concerning long-term defenses. It has been unequivocably asserted that even following the expiration of the proposed new treaty, the United States will have the right to defend and protect the neutrality of the Canal.
It is alleged that a grant of right to the United States to this effect is contained in the auxiliary agreement entitled "Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal." No such right is granted and no such right would exist authorizing the United States to intervene for the defense or the neutrality of the Canal after the pending treaty expires. All it says in this regard is found in Article IV: "The United States of America and the Republic of Panama agree to maintain the regime of neutrality established in this treaty, which shall be maintained in order that the Canal shall remain permanently neutral * *." F. What about enemy ships in time of war?
Whereas now in time of war, as in the past, the United States could deny entry and passage of the vessels of any nations with whom we might be in a
state of war, once this treaty and its collateral and subordinate agreements have been ratified, no such right will exist. The proposed agreements specifically authorize the passage of the vessels of war and auxiliary vessels of any and all nations in peace or war.
Dr. Romulo Escobar Bethancourt declares that the United States has no right to deny passage to an enemy vessel. He denies that the United States has any right to guarantee the neutrality of the Canal. He denies that the United States may say when the neutrality of the Canal has been violated. He stated publicly :
"We did not want that with the excuse of neutrality, the United States would maintain a guarantee over the State of Panama. This was another cause of discussion that kept the negotiations detained until the United States gave up on the idea of having a guarantee of neutrality over the Canal."
United States officials say that we have some sort of an "understanding" with the Panamanians that Article IV means that the United States does have a “right.” Dr. Escobar, the chief negotiator, and the real center of power in Panama says this is not so.
It will be recalled by many that Mr. Kissinger said that he had an understanding with the Soviets as to the meaning of a certain critical provision of the SALT I Treaty. It developed, however, that the Soviets denied that there was any such understanding and certainly did not restrain themselves from action respecting strategic weapons and missile sites that would have been a direct violation of the alleged "understanding." G. Does this treaty generate friendly relations with Panama!
If we have opened up a new era of cordial relations with Panama, how is it that Dr. Escobar continues to defame and slander the United States before his own people in Panama at every conceivable opportunity ? With combustible rhetoric he continually incites the students into confrontation and does so with regard to the period after the treaties take effect. He characterizes the United States as a reluctant and imperialist nation. On August 12, 1977, he advised these students that if they are disenchanted with what he described as some of the "ugly features” of the new treaties, they should strike out on their own. In this enlightening address, Dr. Escobar said to the students :
“In the past when we set bombs against our oligarchy (in Panama), when we challenged the regimes established in our country we never asked anyone for permission, you have never asked anyone for permission * * *. When one wants confrontation, one puts his knapsack on his back, his bomb at his waist and goes to stage the confrontation."
The United States personnel (military, civilian and dependents) will be totally subject to the sovereign power and jurisdiction of the Republic of Panama. Fixed installations and the property not temporarily and specifically otherwise designated will be immediately theirs.
There is nothing in any of the treaties that could possibly prevent the Panamanians from nationalizing the entire operation whenever it chose as did Egypt, contrary to its obligation in the case of Suez. When Britain, France and Israel undertook to enforce the commitments of Egypt, it was the United States that prevented these nations from so doing. We thus laid the foundation not only for what is happening to us now but for that which will lie ahead whenever the Panamanians consider it in their special interest to do so. The Panamanians largely despise the United States. They remember the precedent of Suez.
As noted, the treaty provides for joint defense under a joint Board composed of equal numbers of Panamanian and U.S. officers. No one is in command. As in all such cases, the host country which will also be the sovereign possesses the absolute power of decision. This would seem to place a high premium on friendly relations, shared objectives and philosophies, and an abundance of goodwill. Is it there? Consider the following:
At Fort Cimmaron, there is a Panama National Guard Training Center. The soldiers in training have a chant. Perhaps for them, it is similar, for example, to the chant of U.S. Army Airborne units : "Airborne, Airborne All the way." It is different, however, in Panama. It goes like this:
"Qne Muera Gringo
Gringo Al Paredon"
"Death to the gringo
Mutual trust? Joint defense: A friendly climate with an abundance of goodwill ?
When Torrijos was returning from the treaty signing ceremonies convened with such fanfare, he had something else on his mind other than a feeling of warmth and cooperative friendship with the United States. The English translation of a message sent to Castro as reported by the Spanish news agency on September 10, 1977 follows:
"In returning to my country and flying over the sky of Cuba, I salute you with my everlasting friendship; I wish that the Cuban people under your wellaimed direction will continue its forward march towards progress. In Latin America, your name is associated with the sentiments of dignity that is channeled to the termination of all forms of shameful colonialism."
The friendly words of the head of the Panamanian government? Friendly to the United States, that is?
IV. OTHER VITAL CONSIDERATIONS
We are soothingly assured that the Canal in reality is obsolete and really is not important to our security or our economy. It is true that our thirteen largest aircraft carriers cannot transit the Canal. All the rest of our surface and undersea naval ships can do so and plans for future construction of frigates, cruisers and destroyers will all remain canal-configured.
The Canal is one of the four vital choke points of the world. The Canal as a U.S. waterway which we are free to use and deny to our enemies in wartime gives the United States a striking, strategic advantage that Russia can never have. Geography dictates that the Soviets divide their navy into four separate fleets incapable of mutual support or reinforcement. Only between the Indian Ocean and the Mediterranean via the Suez Canal can the Soviets shift warships as they frequently do.
We have relied heavily on the Panama Canal in every serious military crisis of the century as a means of concentrating our fleet in areas of greatest danger. We need the anchorage facilities there that we now have. We need the airfields there.
I have heard it argued that it is obsolete because supertankers cannot transit the Canal. Supertankers? No supertanker can even enter any port of the United States. Supertankers were designed expressly to go around the Cape of Good Hope. If we were relegated to Drake Passage around Cape Horn or through the Straights of Magellan through the Tierra del Fuego, a very hazardous route, our defense would be impaired as would our seala ne life lines. Our Alaskan oil will go through the Panama Canal. Very large tankers, in fact most of the tankers afloat in the world, can transit the Canal. The first Alaskan oil cargo will shortly transit the Canal. B. What do the Soviets say about the canal!
I quote from the edition of the Weekly Review of the Intelligence Digest of August 24, 1977 published by Intelligence International Ltd., 17 Rodney Road, Cheltenham, Gloucestershire, England:
"Perhaps the most revealing insight into Communist strategy involving the Panama Canal has come from a Soviet Army officer, a Major Sergei Yuworor, writing in the official Soviet military organ Red Star. As reproduced in the Cuban magazine Bohemia. Major Yuworov wrote: 'Due to its privileged location as the juncture between South America and the rest of the continent, including the Canal that permits United States warships to operate simultaneously in the Atlantic and Pacific, it-the Canal Zone-must be considered by the Soviet Union as a priority Zone. A second zone (from which to attack Panama) is the Central American Isthmus, located to the north of Panama. The Canal itself can be attacked as well from Colombia.' As a third choice, Yuworov points to 'converting Cuba, and implicitly Puerto Rico, into bases from which Moscow's plan can be consummated.'”
Quite a mouthful from a Soviet officer writing in the Red Army's official journal!
On the question of defense, it is absurd to say that by ceding the Canal to Panamanians, our capacity for defending the Canal and guaranteeing its security will be increased. With the property in the hands of an irresponsible government or a government dominated by Marxists as Panama's government is, it could