Treaty power can be concurrent with the legislative power of Congress when the subject matter is appropriate for international negotiation. The legislative history of the "property clause", and its placement in article IV of the Constitution, strongly suggest that the original intent of the provision was to deal with Federal/State relations and not to restrict the authority of other branches of the Federal Government. The immediate historical context involved rights in land then known as the Northwest Territory, and the provision appears to have been intended to authorize Congress to deal with lands without prej udice to the claims of the States and the United States. Article IV of the Constitution includes a number of other important provisions dealing with relations between States and between States and the Federal Government including the admission of new States and the full faith and credit clause. There is a long line of case holding that, Congress, rather than the States or the President, has the power to dispose of public property, but none of the cases of which we are aware deal with or even discuss the treaty power. We have been unable to discover any evidence that the framers intended this provision of the Constitution to delimit the power of the President to make treaties with the advice and consent of the Senate. Therefore, the Department of State believes that in this instance the legislative and treaty powers are concurrent. The most pertinent judicial decisions concerning article IV and the treaty power relate to Indian tribes. These cases, although arising in a different context, support the power to make a sale or grant of land by treaty without an act of Congress. There is broad language to that effect in the opinion of the Supreme Court in the case of Jones v. Meehan, 175 U.S. 1, 10-21 (1899).8 In treaty practice there are many precedents that tend to support the authority to dispose of property of the United States by treaty. In addition to the Indian treaties, which were approved by the Supreme Court on several occasions, a number of important boundary treaties with Great Britain, Spain and Mexico have ceded rights to land claimed by the United States. It now appears to be generally accepted that a treaty that adjusts a boundary or territorial dispute can be self-executing and need not be implemented by statute. Another use of the treaty power was the 1959 U.S. agreement to return to Austria property vested during World War II in the Office of Alien Property. The agreement was See, eg., U.S. v. Schooner Peggy 1 Cranch 103 (1801); U.S. v. Percheman, 7 Pet. 51 (1833); Hijo v. U.S., 194 U.S. 315 (1904); Cook v. U.S., 288 U.S. 102 (1933); Bacardi Corp. v. Domenech, 311 U.S. 150 (1940); see generally ALI, Restatement of the Law Second, Foreign Relations Law of the United States, sec. 141. See, e.g., Butte City Water Co. v. Baker, 196 U.S. 119 (1905); United States v. Mid west Oil Co., 236 U.S. 459 (1915); United States v. City and County of San Francisco, 310 U.S. 16 (1940). 7 Indian tribes formerly were recognized as independent nations with whom the United States could contract by treaty. Worcester v. Georgia, 6 Pet. 515 (1832); United States V. 43 Gallons of Whiskey, 93 U.S. 188 (1876). Holden V. Joy, 84 U.S. (17 Wall.) 211, 247 (1872) ; U.S. v. Brooks, 51 U.S. (10 Harvard) 442, 460 (1850). United States-Spain Treaty of Amity, Settlement and Limit of 1819 (Florida Treaty); United States-Great Britain (Webster Ashburton) Treay of 1842; United States Great Britain Treaty in Regard to Limits Westward of the Rocky Mountains of 1846 (Oregon Treaty); United States-Germany-Great Britain Treaty in Respect to the Samoan Islands of 1899; United States-Cuba Isle of Pines Treaty of 1904; United States-Mexico Boundary Treaty of 1933 (Rio Grande), 1963 (Chamizal) and 1970 (Rio Grande and Colorado River). atified as a treaty, and no legislation was necessary to execute its Cerms. In the specific context of Panama, the precedents look two ways. In 1936 the United States renounced, by treaty, rights granted the United States in the 1903 Convention to the "use, occupation and control" of lands outside the Canal Zone "which may be necessary and convenient" for the construction of the canal and certain other purposes.10 Similarly, the 1955 treaty with Panama released some parcels of land to Panama without prior congressional authorization. On the other hand, article V of the 1955 treaty made the transfer of other Canal Zone lands to Panama "subject to the enactment of legislation by the Congress"." In 1943 utility networks in the cities of Panama and Colon were transferred by executive agreement and joint resolution of Congress.12 This very brief review of the constitutional issue leads us to the conclusion that the United States can by treaty dispose of U.S. property rights. The treaty power in this area is concurrent with the Congress power under article IV of the Constitution. This does not mean that the United States cannot dispose of property rights, as in the Canal Zone, by a combination of treaty and implementing legislation, but only that it is not required by the Constitution to do so in this manner. We recognize that there is another point of view on this question, and I wish to assure this committee that no final decision has been taken by this administration concerning the procedure to be followed in the case of new Panama Canal treaties. What will be the most appropriate procedure in the case of the new Panama Canal treaties can only be decided when the treaty package is established so that we are no longer talking in hypothetical terms and on the basis of all relevant considerations at that time. Mr. MURPHY. Thank you very much, Mr. Salans. 10 United States-Panama General Treaty of Friendship and Cooperation (1936), article II. "Similar rights to construct a canal and naval base in Nicaragua, together with a 99year lease to the Corn Island, granted in the 1914 United States-Nicaragua (ByranChamorro) Treaty were relinquished by a new treaty between the United States and Nicaragua in April 1971." United States Panama Treaty of Mutual Understanding and Cooperation. of United States Relations With Panama, February 20, 1973* U.S. RELATIONS WITH PANAMA TUESDAY, FEBRUARY 20, 1973 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON INTER-AMERICAN AFFAIRS, Washington, D.C. The subcommittee met at 3:30 p.m., in room 2200, Rayburn House | Office Building, Hon. Dante B. Fascell (chairman of the subcommittee) presiding. Mr. FASCELL. The subcommittee will come to order please. Nine years ago last month rioting in Panama brought the first diplomatic crisis of the Johnson administration and led to an agreement by the United States to negotiate a new Panama Canal Treaty. Thus far, no agreement has been reached and canal-related issues continue to disturb and embitter relations between our to countries. Last December Panama made public the previously confidential negotiating positions of both sides in the current round of canal talks. At about the same time a Panamanian diplomatic initiative to have the U.N. Security Council meet in Panama to air the canal dispute met with success. The U.N. meeting is slated to be held in Panama March 15 through 21, and in recent weeks there have been disturbing reports of possible violence in connection with the meeting. In view of these recent developments Deputy Assistant Secretary Hurwitch, whose area of responsibility includes Panama, Central America, and the Caribbean, has agreed to discuss with us the whole range of United States-Panamanian relations. Please proceed, Mr. Secretary. STATEMENT OF ROBERT A. HURWITCH, DEPUTY ASSISTANT SECRETARY FOR INTER-AMERICAN AFFAIRS, DEPARTMENT OF STATE Mr. HURWITCH. Mr. Chairman, it is true that since 1964 the United States and Panama have sought to bring about a new relationship between the two countries with respect to the canal. That we have been unsuccessful to date, I really think has not been due to a lack of desire on either side. Since 1964, as you know, there have been a number of intervening major political events which were not conducive to bringing about the desired results. In 1967, as a result of 3 years of negotiation, both sides initialed draft agreements. It was thought at the time that, at least, a new treaty *United States Relations With Panama: Hearing Before the Subcommittee on InterAmerican Affairs of the House Committee on Foreign Affairs, 93rd Congress, 1st Session, February 20, 1973, pp. 1-5. KF27.F646 1973b. relationship which would replace the outmoded 1903 treaty was at hand or that a new era would indeed come into being starting in 1967. But the then Panamanian Government, as a result of premature disclosure of the contents of the draft initialed agreements, felt it could not submit them for ratification to its legislature. Consequently the United States did not do so. In 1968 General Torrijos assumed power in Panama. It took a time for that Government to get organized, as all governments take time. It was only in the latter part of 1969 that we received indications from the Panamanian Government that it wished to return to the negotiating table. We have always maintained that we are willing to discuss the modification of the treaty. So we responded affirmatively in the latter part of 1969, and have since been discussing with Panama a new treaty. The year 1971 was a very active one-particularly the half year from June to December of 1971, in which I like to believe a great deal of progress was made. I think it would be fair to put this matter in at least one perspective. In so doing I do not wish to minimize the importance for Panama of the new treaty, as well as for the United States. I have said it is in our mutual interest to achieve a new, modernized relationship with regard to the canal. But I also must say that, since 1903 for nearly 70 years-the United States has served world commerce well, by operating, maintaining and defending a vital international waterway. It has remained open. The tolls have remained modest-never raised. Never has there been discrimination. World commerce, including our own, has benefited by the fact that this major engineering feat was accomplished under most adverse conditions. I think it is also fair to say-without in any way depreciating the great efforts of the Panamanian people and its leadership constantly to improve their condition-that the existence of the canal in Panama has benefited, substantially, that country. Panama, as a result, has become a crossroads of transportation, of commerce, of banking. The indirect benefits Panama has derived from the presence of the Panama Canal run in the neighborhood of $170 million a year, which is an important portion of its foreign exchange earnings. When you use the multiplier effect, the economic benefits are considerably greater. Here are a few other facts: One-third of Panama's gross national product is directly or indirectly attributed to the U.S. presence in the Panama Canal Zone. Forty percent of Panama's total foreign exchange comes from it. One-third of its nationwide employment is directly or indirectly due to the presence of the canal. And its per capita income is the highest in Central America, fourth highest in all of Latin America. Now, as I said, I don't want to give the impression that this is largesse which the United States has given to Panama. Panamanians are a dignified people who, I believe, are ably led today. They have worked hard as well. I ask only that the problems be seen in the perspective of the benefit that the canal has had, not just for the United States, but also for world commerce and last but not least-Panama for nearly 70 years. There is no question in our minds that the 1903 treaty is antiquated. For the United States to have a 10-mile-wide swath of land through the middle of another country, where our laws reign, where people of that country have to submit themselves to our laws and our courts and our police is, I think, an anchronism. I think, looking at it in terms of our own national security, that it is not a secure environment for the United States to have a foreign enclave in another country, in this day and age, in which to operate a canal. I think the greatest security for the United States in the future is to have that kind of environment in which there is friendship and mutual understanding in which the people of the country can live easily with the situation, and hold up their heads with dignity, knowing their laws are the ones that rule their behavior, not those of foreigners. So, from the standpoint of concept and philosophy, we are as eager as the Panamanians to bring about this change. There are many issues involved in this change, and I don't want to bore the committee with all the complexities. But let me try to highlight a few. The Panamanian Government has complained over the years about the existence of a treaty which has a provision for perpetuity—it has no end to it and has asked that any future treaty be one of fixed term not in perpetuity. The United States has agreed that any new treaty will be for a fixed term and not for perpetuity. What is under discussion between the negotiators is: How long-what period of time should the fixed term be? That is a negotiable subject. Of equal importance to the Government of Panama has been the desire to eradicate what it calls a government within a governmentthat is, that there is a police force controlled by a foreign power, namely the United States; courts controlled by a foreign power; namely, the United States; laws that are those of a foreign power; namely, the United States. The United States has agreed that in general these should no longer persist in Panama. For the most part Panamanian law should be paramount, in consonance with the sovereignty of the country. What is at issue is the time frame during which we should phase out of the existing regime into the kind of regime I believe Panama would be satisfied with. Now, when we talk about that time, we have to take into consideration that there are nearly 15,000 people employed by the Panama Canal Company who are used to a certain way of living. I don't think it is fair or reasonable to change abruptly, to take a large number of human beings and confront them one day with a completely different set of rules of the game. There has to be a fair transition, just from the point of view of the psychology of the situation. The Panamanians would like this to have happened yesterday. We would like to take into consideration very fully the psychological problems that will arise in carrying this out. We would like to have the transition extend for a somewhat longer period. Those are two important issues. |