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JOINT STATEMENT BY THE HONORABLE HENRY
A. KISSINGER, SECRETARY OF STATE OF THE
UNITED STATES OF AMERICA, AND HIS EXCEL-
LENCY JUAN ANTONIO TACK, MINISTER OF
FOREIGN AFFAIRS OF THE REPUBLIC OF PANA-
MA, ON FEBRUARY 7, 1974 AT PANAMA

The United States of America and the Republic of Panama have been engaged in negotiations to conclude an entirely new treaty respecting the Panama Canal, negotiations which were made possible by the Joint Declaration between the two countries of April 3, 1964, agreed to under the auspices of the Permanent Council of the Organization of American States acting provisionally as the Organ of Consultation. The new treaty would abrogate the treaty existing since 1903 and its subsequent amendments, establishing the necessary conditions for a modern relationship between the two countries based on the most profound mutual respect.

Since the end of last November, the authorized representatives of the two governments have been holding important conversations which have permitted agreement to be reached on a set of fundamental principles which will serve to guide the negotiators in the effort to conclude a just and equitable treaty eliminating, once and for all, the causes of conflict between the two countries.

The principles to which we have agreed, on behalf of our respective governments, are as follows:

1. The treaty of 1903 and its amendments will be

abrogated by the conclusion of an entirely new
interoceanic canal treaty.
The concept of perpetuity will be eliminated. The
new treaty concerning the lock canal shall have
a fixed termination date.

2.

3.

Termination of United States jurisdiction over
Panamanian territory shall take place promptly
in accordance with terms specified in the treaty.

4.

The Panamanian territory in which the canal is
situated shall be returned to the jurisdiction of
the Republic of Panama. The Republic of Panama,
in its capacity as territorial sovereign, shall grant
to the United States of America, for the duration
of the new interoceanic canal treaty and in ac-
cordance with what that treaty states, the right
to use the lands, waters, and airspace which may
be necessary for the operation, maintenance, pro-
tection and defense of the canal and the transit
of ships.

5.

The Republic of Panama shall have a just and equit-
able share of the benefits derived from the operation
of the canal in its territory. It is recognized that
the geographic position of its territory constitutes
the principal resource of the Republic of Panama.

6.

The Republic of Panama shall participate in the.
administration of the canal, in accordance with a
procedure to be agreed upon in the treaty. The
treaty shall also provide that Panama will assume
total responsibility for the operation of the canal
upon the termination of the treaty. The Republic
of Panama shall grant to the United States of
America the rights necessary to regulate the tran-
sit of ships through the canal, to operate, maintain,
protect and defend the canal, and to undertake
any other specific activity related to those ends,
as may be agreed upon in the treaty.

7.

8.

The Republic of Panama shall participate with the
United States of America in the protection and de-
fense of the canal in accordance with what is agreed
upon in the new treaty.
The United States of America and the Republic of
Panama, recognizing the important services rendered
by the interoceanic Panama Canal to international
maritime traffic, and bearing in mind the possibility
that the present canal could become inadequate for
said traffic, shall agree bilaterally on provisions
for new projects which will enlarge canal capacity.
Such provisions will be incorporated in the new
treaty in accord with the concepts established in
principle 2.

Senator HELMs. Now these basic principles were even more insidious than the straightforward announcement by President Johnson that he would seek to abrogate the 1903 treaty. For the basic principles implied without ever saying so specifically that the United States did not possess either territory or sovereign powers. Principle 4, for example, begins:

The Panamanian territory in which the canal is situated shall be returned to the jurisdiction of the Republic of Panama. The Republic of Panama, in its capacity as territorial sovereign, shall grant to the United States of America, et cetera.

The Kissinger-Tack agreement put the prestige of the executive branch behind a statement that is historically untrue, profoundly unconstitutional, and an illegal usurpation of power. Whereas the Johnson announcement implied per se that the United States did have sovereign powers, and that they should be abrogated, the Kissinger statement implicitly denied that the United States had sovereign powers, and hence there was no need to speak of abrogation. This was an attempt to end-run the Constitution and the laws of the United States, and to create an accomplished fact. It amounted to a concession of the major point before the negotiations began.

The reaction in the Senate was very intense, as well as in the House. In the Senate, under the able leadership of the distinguished senior Senator from Arkansas, Mr. McClellan, and the distinguished senior Senator from South Carolina, Mr. Thurmond, 39 Senators cosponsored a resolution demanding that our sovereignty remain undiluted in the Canal Zone. As a very freshman Senator a that time, I was proud to be among that distinguished group of cosponsors.

Usurpation is a process which seem to blind the usurpers to the consequences of their actions. Now the very set of basic principles, odious as they were, were exactly the sort of thing which should have been brought to Congress for approval before they were signed. If Congress had chosen to adopt those principles as guidelines under article IV, then the negotiators could have safely assumed that they would get a treaty acceptable to the Senate and the House.

But the Secretary of State and the President were not willing to take the risk of submitting such basic principles to the Congress for fear that they would precipitate an intense debate resulting in rejection or amendment. They chose, therefore, to ignore article IV, and continue negotiations, despite the fact that a group of Senators large enough to block the treaty had declared themselves opposed to their work. They had set themselves upon a course that may well end in tragedy and disaster.

The direction of the negotiations soon became evident. In December 1975 another document emerged-so-called conceptual agreements amplifying the Kissinger-Tack principles. These went into more detail, but confirmed the worst fears of those opposed to the surrender of sovereignty. For although the American people had been promised "practical control” in lieu of sovereignty, it was plain that even “practical control” would vanish almost immediately upon ratification, leaving only a mixed control for approximately 3 years. More recent news accounts confirm the extent to which the conceptual agreement has been carried out in the present negotiations.

Mr. Chairman, on December 4, 1975, in a statement on the Senate floor, I made an extensive analysis of the hitherto "secret" conceptual agreements, and I ask unanimous consent that it be made part of my testimony today. It will make very interesting reading, I believe, when final drafts of the new treaty become available.

[Senator Helm's floor statement follows:]

[From Congressional Record, Dec. 4, 1975)

THE PANAMA CANAL NEGOTIATIONS AND ALLEGED ACCEPTANCE BY PANAMA OF

U.S. CONTROL Mr. HELMs. Mr. President, recent news reports have suggested that the Panama Canal negotiations have been proceeding smoothly, and that the State Department negotiating strategy has been practical and successful. In recent weeks, State Department spokesmen have been trying to win converts to their theory that the wholesale granting of concessions to the Republic of Panama will increase respect for the United States, and secure the peaceful, safe, and efficient operation of the Panama Canal for generations to come.

NEW YORK TIMES ARTICLE

Yesterday's New York Times carries one such account. It reports that our chief negotiator, Ambassador Ellsworth Bunker, announced in Los Angeles that Panama had accepted the premise that the United States would retain "primary responsibility” for the operation and defense of the canal in the proposed new treaty. The headline was even more enthusiastic, saying that “Panama Accepts U.S. Control of the Canal." It is not fair to charge Ambassador Bunker with the work of a headline writer, but it is true that the headline gives the general impression which most people would get from reading the article. In fact, Ambassador Bunker is not the only State Department spokesman who has left audiences with the impression that the United States would retain significant control of the canal as a result of the negotiations.

But for those who have followed the negotiations closely—or who even read the news accounts of Ambassador Bunker's speeches closely—the story is considerably different. If the United States retains only "primary responsibility"instead of all the attributes of sovereignty which we now exercise—then we have indeed opened the door for the complete loss of any effective control.

Indeed, when one speaks of "primary responsibility” one admits that jurisdiction is split into primary and secondary, and a split responsibility inevitably will give way to paralyzing disputes, with nobody really in control.

The key is in the Ambassador's admission that there would be "growing participation of Panamanian nationals at all levels in day-to-day operations” of the canal. This means that there would be a diminishing proportion of employees loyal to the United States in the canal organization. The preponderance of U.S. citizen-employees in the canal organization today are in the skilled trades, executive level decisionmaking jobs, and in designated “security positions." These are the categories which have the responsibility for making the canal work. If we do not have employees loyal to the United States in these capacities, there is no way on Earth that the United States can retain control, or even "primary responsibility.”

SECRET WORKING PAPERS

Moreover, I have seen some of the secret working papers which apparently are the basis of Ambassador Bunker's concept of "primary responsibility.” I have no reason to doubt the authenticity of these papers. They are written in the special Orwellian rhetoric of the negotiations. They even contain many phrases which the Ambassador and his spokesmen have been using in public. It may be that some of these proposals have been discarded by the negotiating team.

If they have been discarded, then the American public deserves a clear state ment from the Ambassador as to which ones have been discarded. The truth is that these kinds of proposals make the concept of "primary responsibility," with its connotations of adequate U.S. control, a mockery.

What develops from this working paper is a concept of shared responsibility which is incompatible with effective or decisive action, and is geared toward a constant lessening of the small amount of control proposed to the United States for the first 3 years. Indeed, within 3 years' time, U.S. practical control of operations and protection of its employees would be phased out. Thus for only 3 years of the 25-year treaty would our control be anything more than nominal. Let us look at the defense, administrative, and jurisdictional aspects of "primary responsibility” outlined in this working paper :

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