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United States has entered into boundary settlement treaties several times in its history, swapping pieces of land here and there without any implementing legislation from Congress. Again, on closer examination, each settlement of a boundary dispute turns out to have been a matter of recognition of the rightness of the claim of our nation or the other one involved, and not a matter of outright cession of territory.
The case of the Ryukyu Islands might be cited, too. We turned these islands back to Japan in 1972, following ratification of a treaty without implementing legislation. In the 1951 peace treaty with Japan, however, the Japanese did not renounce their right or title to the Ryukyus, as they did to certain other pieces of territory, so that when the time came to discuss the matter further there were no serious questions of ownership.
So much for the flaws in the arguments that are put forth to support the idea that the new Panama Canal treaties can be used to turn over U.S. property without special implementing legislation. The strongest evidence to support the opposite assertion in the past record of disposal of U.S. property in the Canal Zone itself.
I have read thousands of words of newspaper and magazine copy and heard many television and radio broadcasts about the Panama Canal treaty issue, but have seen or heard nothing about these cases in the news media. Yet, their significance cannot be underestimated in establishing that legislation will be required of Congress because of its exclusive power to dispose of territory and property.
Back in 1932, our Government wanted to build a new legation building on land inside the Canal Zone. It is not proper, of course to build a legation on one's own territory. So, a bill was passed by Congress to authorize the Secretary of State to adjust the boundary between the Canal Zone and the Republic of Panama in order to turn the land for the legation building over to Panama.
Ten years later, the Senate debated approval by Joint Resolution of an Executive Agreement to transfer some land and property in the Canal Zone to Panama. The very question of whether this should be done by treaty-requiring only Senate ratification-or by Executive Agreement-requiring consent of both houses-was hotly debated. The measure was approved, underscoring Congress' Article IV powers.
Early the next year, 1943, the House Committee on Foreign Affairs held hearings on the land transfer in question. The report adds its weight to the argument for requiring implementation legislation in the current case. It said, "Congressional approval of the Executive commitments to Panama is sought in the form of legislation because there is involved (a) a disposition of property of the United States; and (b) an appropriation of funds, both requiring an exercise of the legislative power, independently of the treaty-making power. Article IV of the Constitution provides that "The Congress shall have power to dispose of . . . the territory or other property belonging to the United States'."
Our 1955 treaty with Panama provided for transfer of real property, stating that some would be transferred immediately and the rest with congressional authorization. During the hearings on the treaty, however, a State Department representative testified that the legislation would be needed in order to implement the transfer of all the property in question.
A number of Supreme Court decisions over the years has reaffirmed the exclusive nature of Congress' power to dispose of territory and property under Article IV of the Constitution.
In the face of all the historical and legal evidence indicating that implementation from the Congress will be necessary in the case of U.S. property in the Canal Zone, it's hard for me to believe that the executive branch would want to circumvent the Congress' rights and responsibilities in this matter. If our foreign policy is to be fully effective, cooperation of the Congress is a vital ingredient.
The constitutional issue is of great importance, but so is the security of the United States and the Western Hemisphere.
I have not yet received a copy of the treaty draft to read, but members of my staff and I have been briefed on its contents by Ambassadors Bunker and Linowitz and other members of the U.S. negotiating team. I believe the ambassadors worked earnestly and hard under difficult circumstances and there are some com
mendable ideas contained in the proposed treaties. But, I also believe they have an overriding-indeed a fatal flaw. They proceed from a false premise, that we can expect reliable, impartial, trouble-free, secure operations of the Canal in the future by relinquishing the rights we acquired in the 1903 treaty.
In that treaty we acquired the rights of sovereignty over the Canal Zone, to the exclusion of the exercise of such rights by the Republic of Panama.
We did not acquire the Canal Zone as we did the Louisiana Purchase or Alaska. Many people think we did, but the fact is that the Canal Zone is unique.
It seems clear, from the language of the 1903 treaty, that the intention of our Government was to acquire a firm, unshakable legal basis for building, operating and defending the canal. The language that says we shall act "as if we were sovereign" underscores the point, for we did not acquire the Canal Zone for the purpose of extracting minerals, tilling the soil or establishing a mercantile colony. It was a single-purpose enterprise. But, the important thing to remember is that only one nation can exert sovereign rights over a given piece of land at one time, and the 1903 treaty made it clear that we would do so in the Canal Zone and that the Republic of Panama would not.
To this day, it is those rights of sovereignty which undergird our ability to operate and defend the canal. We cannot be kicked out summarily on the whim of some Panamanian government.
Once those rights are removed-and they will be removed immediately if the new treaties become effective there is nothing to prevent a Panamanian regime from deciding one day to nationalize the canal and to demand that we leave immediately. That would present us with the very thing the treaty advocates say we want to avoid; confrontation, or its alternative, unceremonious withdrawal in the face of an arbitrary demand.
For more than 60 years we have operated the Panama Canal efficiently impartially and on a not-for-profit basis. The nations of the Western Hemisphere have to come to rely on our stable presence there to make sure that their commerce would get through unhindered.
We cannot be certain, if these new treaties go into operation, that key personnel now operating the canal will not leave a great deal sooner than expected, thus bringing into question the smooth operation of the canal. We cannot be certain that, as the American presence withdraws from the Canal Zone, new demands for accelerated withdrawal will not be made under threat of violence. We cannot be certain that outside influences hostile to hemispheric security will not make their presence felt much greater than before in Panama. We cannot be certain that Americans operating the canal will not be harrassed by an unstable and power-hungry dictator.
Fidel Castro, whose interest in exporting revolution is well known, has made quite a show of his friendship for the current military regime in Panama. And just this summer, a delegation from the Soviet Union visited Panama to look into trade, investigate possible plant locations and even the possibility of opening a bank in Panama. It should never surprise us that whenever the United States withdraws its presence or its strong interest from any area, the Soviets are ready, willing and often able to exploit the situation. Can we believe that the Panama Canal is any exception?
Although the proposed second treaty would continue indefinitely beyond the expiration of the first one in the year 2000, the question must be asked, does it really provide what it says it will, which is the unilateral ability of the United States to step in to defend the canal if its neutrality is threatened? I believe we will make a very grave mistake if we let ourselves be inveighed into debating what the treaties do or do not say. Yes, on paper, we are told we have the right to step in-even after we have turned over control and removed our forces. But will we?
We are told by the treaty advocates, there will be unpleasantness and trouble if we don't accept these treaties. The same people then assure us we can march back in if there is trouble. But once we have said, in effect, "We don't want trouble; we'll give up the canal," have we not also said. "If the Government of Panama, encouraged by leftist allies, plays fast and loose with the treaty," we'll decide-since we are giving it up anyway-"why bother?"
I don't believe such a concern is unjustified, given the recent history of our Nation. We have shown a reluctance to meet the responsibility of free world leadership, even on occasion to abandon allies.
We have been told the canal is declining in terms of military importance and yet all but a handful of our navy ships can transit the canal. The great bulk of
material bound for our forces in Vietnam went by way of the canal. And who can say what shape our navy will take 20 or 30 years from now? It may very well consist in this missile age of small, fast ships relying on quick accessibility from one ocean to another.
President Carter cites a statement by the Joint Chiefs of Staff that the treaty is satisfactory in terms of our defense needs. I mean no disrespect to these fine men. Yet, in a recent letter to the President, four former Chiefs of Naval Operations-now retired and, therefore, free to speak out on this issue-underscored the importance of our keeping active control of the canal. Admirals Arleigh Burke, Thomas Moorer, Robert Carney, and George Anderson said, in part, "As long as most of the world's combatant and commercial tonnage can transit through the canal, it offers inestimable strategic advantages to the U.S.. giving us maximum strength at minimum cost.
"By contrast, the Panama Canal, under control of a potential adversary, would become an immediate crucial problem and prove a serious weakness in the overall U.S. defense capability with enormous consequences for evil."
Our continued presence at the canal inhibits potential adventurers from trying to make international trouble there far better than would a piece of paper granting us the right to return after we had once departed.
It is no secret that the Soviet Union believes control over some vital sea lane "choke points" means dominance of the world's oceans. Our presence at one of the busiest and most important of those "choke points" is a definite deterrent. There is another factor at work which could be harmful to the security of the hemisphere because it could further question our willingness to maintain a leadership role. Let us remember that, for much of the time, while these treaties were being negotiated, we were doing so (especially in the last 2 years) under repeated threats of violence. True, the threats slackened off this year, possibly because General Torrijos saw victory ahead. Some may believe the threats were a bluff, but the fact remains that we did continue to negotiate and, apparently, made concessions in the face of threats. The President seemed anxious to speed up and bring the matter to a conclusion in spite of his previous declarations that he would never relinquish effective control of the canal. If we accede to a treaty under such circumstances, will this mark the end of further demands? If there are, indeed, radical guerrillas in Panama (as we are told) ready to blow up the canal if we don't sign a treaty, what assurance do we have that they will be satisfied with the terms of these treaties? Already, the government-sponsored student federation in Panama has issued a manifesto supporting the treaties, but also indicating that "the struggle will continue" so long as there is any American presence at the canal. If they should press Torrijos to ignore these treaties, would we not hear the same arguments from the same people for giving in to those new demands that we are hearing today?
Whether or not these treaties ever go into effect, we can expect trouble from leftist elements in Panama and elsewhere. Yes, failure to ratify the treaty will offer an excuse for demonstrations and riots in Panama and very possibly in the U.S. And, behind the scenes, the Russian Bear will do all it can to destabilize the security of the hemisphere and cause a global whirlwind of unfavorable press aimed at us-not because we didn't ratify the treaty but because that's their normal procedure where we are concerned.
The treaty advocates say failure to ratify and implement these treaties will harm our relations with all of Latin America. Is it possible they believe they are betting on a sure thing? Historically, our Latin American neighbors have felt the need to be somewhat on guard against a United States which to them is the "Colossus of the North." A natural reaction has been to vote as a group on interAmerican matters in international forums. This does not mean, however, that all Latin American nations have identical interests or think alike. As a matter of fact, a surprising number have privately expressed concern about our possible withdrawal from the canal.
Frankly, I believe we can question not only the warnings about possible deterioration in our relations with Latin America if we don't ratify the treaty but also the glowing promises of a new era if we do.
The fact is we do not now have a coherent policy toward our Western Hemisphere neighbors. And we should because, over the next few decades, our continued
prosperity, possibly even our survival will be closely linked to that of our neighbors within this hemisphere. I do not believe these treaties are a substitute for such a policy. I do believe that the U.S. negotiating from strength and not meekly yielding legitimate rights and responsibilities out of a desire to avoid unpleasantness, can be truly helpful to the people of Panama and to all the hemisphere. Some of our neighbors need aid we are in a position to give. With others, the need is for increased technology and trade; and with some, unhindered access to capital for needed development. Once our Government recognizes that we must all sink or swim together maybe we'll stop some of our self-defeating practices. It is self-defeating to throttle a nation's ability to obtain capital because it doesn't run its internal politics precisely as we would like. It is self-defeating to keep a neighbor from buying weapons for its police force because someone in Washington sees terrorists as mere political dissidents. Thus, we encourage more terrorism and hurt a nation's chances for economic recovery.
Our neighbors in Latin America ask that we learn enough about them to have some understanding. Sometimes, there problems are similar, sometimes different but each nation is deserving of understanding.
What especially do the Panamanians want? That isn't an easy question to answer since there is no elected government, nor can we be sure a plebiscite of the people on the treaties would give an accurate answer in view of the nature of the government.
We are left with some educated guesses about the wants of the Panamanian people. Thanks in large part to the canal, the Panamanians have the highest per-capita income in Central America and the third and fourth highest in all of Latin America. But their economy is near bankruptcy. They are plagued by inflation and unemployment while natural resources lie undeveloped.
Contrary to what has been implied about my own position, I do not believe that in rejecting these treaties we should simply demand the status quo and not seek answers to problems regarding our relations with the people of Panama. Early in this century, we realized our dream of a waterway connecting two great oceans. Panama, then a neglected province of Colombia, also realized a dream-to be free and independent. The two dreams were inter-related. Many in our country thought the canal should be in Nicaragua. The Panamanians knew their only chance to have independence and prosperity lay in the canal being built in Panama. And so it was that Panama ratified the Hay-Bunau-Varilla Treaty months before it was ratified by our own Government.
We have nothing to be ashamed of and much to be proud of. We created one of the great wonders of the world and it is doubtful any other nation could have done so. More than that, however, we have managed the canal fairly for all nations at no profit to ourselves and with great economic benefit to Panama. Not only did we deal fairly with the governments of Panama and Colombia, we also bought every piece of privately owned land in the Canal Zone in fee simple from the individual owners. And may I point out the Canal Zone is not flanked by "Berlin Walls." The people of Panama can go in and out of the Zone freely at all times.
But times change and the Panamanians have a growing feeling of nationalism. We, on the other hand, cannot weaken our ability to provide security for our nation and the entire Western Hemisphere. Can ways be found to satisfy some of their national aspirations without compromising our ability to meet security requirements?
Though I believe that the basic flaw of the proposed treaties requires that they not be ratified, there are alternatives we should examine.
Let us explore, for example, broadening participation in canal policymaking. The proposed basic treaty calls for a governing board with five U.S. and four Panamanian directors till the year 2000, when it expires. An alternative to consider would be a board comprised of a group of permanent U.S. seats, another group of permanent Panamanian seats and a third group of term seats to be rotated among canal-using nations. Another possibility might be to have that third group made up of representatives of our neighbors, the nations of North and South and Central America. In the case of the first alternative, the international directors might be drawn from a Panama Canal Users Association to be set up at the same time the plan is activated. Nations paying dues into such an association for the benefit of canal improvements might have as one privilege
discounts on tolls under an advised and increased toll system designed to operate the canal in the black.
The proposed treaties call for an increase of the money we pay Panama annually from $2.3 million to an average income from canal operations of as much as $80 million. There is no assurance this would benefit the Panamanian people. A modernization program-the Terminal Lake-Third Locks plan could definitely help the people. It would be approximately 10 years in the building and cost between $1 and $2 billion. We could make certain that Panama workers and contractors were engaged extensively in the program which would directly benefit the people and the economy of Panama.
Such a modernization of the canal would make it capable of handling all but a possible few supertankers. This could have important implications for the cost of moving Alaskan oil to Gulf Coast refineries. Then, too, increased speed of transit and general traffic would mean increased toll revenues which could further benefit Panama through a sharing formula.
These are two alternatives for discussion. I'm sure there are more available for a United States willing to do what it can for a neighbor, without abdicating its own responsibility to permanently provide an open waterway for all the world's shipping and a guarantee of security for the Western Hemisphere.
In conclusion, I would like to touch on the subject of human rights. The con cept of individual human freedom is deeply ingrained in us here in the U.S. Though I believe the best way to help human rights flourish elsewhere is to set the best possible example in our own country, I realize that some idealists believe we should be more assertive in getting others to follow our example. Now that a high standard of sensitivity to human rights has become a cornerstone of our government's policy, I think it is not only fair but mandatory to raise the question with regards to the repressive regime in Panama with which we have been negotiating. And, I do not accept our negotiators' effort to characterize it as merely authoritarian.
Human rights criticism, public and private, has been leveled at a number of nations in the Western Hemisphere which have always been friendly toward us, yet I cannot recall a single word of criticism by any representative of our government toward Panama in this regard. Yet, Freedom House, which is recognized internationally as an impartial monitor of the status of human freedom, rates Panama as one of 67 nations in the world that is "not free". They rate 42 as "free" and 48 as "party free". In its annual survey, Freedom House rates political rights on a scale of one to seven, with seven being least free. They rate Panama as a seven. They rate civil rights on a similar scale, and Panama receives a six.
Documents have been widely circulated in this country, with names, dates, places, and details of alleged violations of human rights by the regime in Panama. I, personally, have received a letter from a Panamanian businessman who was forced, at gunpoint, from his automobile some months ago and sent into exile because he had dissented.
Can we afford a double standard in this most fundamental of areas? I don't think so, for to do so says to the world that we are cynics, using the issue of human rights only as a tactic to produce specific political results. Worse, it may say to those who hold out hope of reduced oppression and ultimately the restoration of freedom that Americans are, when you get right down to it, hypocrites. The recent history of our negotiations with the Panamanian dictatorship does nothing to dispel such concerns. So, I leave you with this question: can we separate canal negotiations from human rights when those rights as we know them are severely limited in Panama?
Finally, what conclusions are to be drawn about these treaties? Let me reiterate that:
The Panama Canal is vital to our security and that of the Western Hemisphere;
We provide the one sure guarantee that the commerce of the world will have continued access to this waterway;