57. "Mr. HATCH. Does this reservation mean that the United States may not use military force to defend the Canal? "Mr. CHURCH. No. "Mr. HATCH. Does the United States have the unilateral right, pursuant to this reservation, to send troops to keep the canal open under this reservation, or must the Panamanians agree to such sending of troops? "Mr. CHURCH. Each country, under the treaty, has the obligation to keep the canal open and, in accordance with the terms of the leadership amendments as well as the terms of the pending reservation, that choice can be made by each government. "Mr. HATCH. Can it be made unilaterally is my question; and can we, without Panama's permission, send in the troops? "Mr. CHURCH. I think I answered the question. "Mr. HATCH. Specifically, I think I interpret your answer to be that we can. "Mr. CHURCH. The Senator is correct. "Mr. HATCH. If the Canal were to be closed and the Panamanians were to be opposed to an effort to sent in the troops, would this amendment prevent us from sending such troops? "Mr. CHURCH. This reservation does not undo the previous action of the Senate. Mr. President, this statement, by the distinguished Floor manager of the treaties, the statement that "this reservation does not undo the previous action of the Senate," is critical to our present inquiry. It demonstrates without any doubt that the new leadership amendment, to the second treaty, did not in any way cancel or undo the DeConcini reservation to the Neutrality Treaty. It shows the clear understanding of the Senate that the United States must have the unilateral right to defend the Canal. 58. Moreover, that interpretation is not merely the understanding of the Senate itself; it is also the understanding of the President of the United States. In a letter to the distinguished Senator from Massachusetts, Mr. Brooke, under date of April 17, the President said: "It is abundantly clear, therefore, that the United States can, under the Neutrality Treaty, take whatever actions are necessary to defend the Canal from any threat regardless of its source. "The correlative part of the Memorandum of Understanding, embodied in the leadership amendment to the Neutrality Treaty, makes it quite clear that action of this character must be confined to the stated objective alone, and that it will not be interpreted as a right of intervention in the internal affairs of Panama." In this letter, the President manfully adheres to the basic contradiction imposed upon him by the circumstances, a contradiction which demands that any intervention in the internal affairs of Panama will not be interpreted as intervention in the internal affairs of Panama, if those internal affairs happen to be the threat to the neutrality of the Canal. The President seems to be saying that, if we do intervene to protect the Canal, such intervention "will not be interpreted as a right of intervention." In other words, we will take the action, but we will not interpret it as our right. Nevertheless, the phrase "from any threat regardless of its source" is new language for the President, language as sweeping as the absolutist language of the Foreign Relations Committee report. Logic dictates that "any threat regardless of its source" includes the notion that the Panamanian government, or lack of government, could itself be the threat. The DeConcini reservation still lives. 59. 5. PANAMA'S APRIL 25 REPUDIATION OF THE DECONCINI AMENDMENT It can be seen from the legislative history that the DeConcini reservation was important to the United States Senate's approval of the Neutrality Treaty, a treaty whose ratification is linked legally to the approval of the Panama Canal Treaty as well. Moreover, it is also clear that approval of the Panama Canal Treaty was fundamentally based upon the concept of unilateral United States defense rights for the Canal, the very point which the DeConcini reservation made explicit. Moreover, there was very little disagreement between opponents and proponents of the treaties on this point. Both accepted the fundamental principle of unilateral defense rights; the debate concerned whether or not these rights were properly protected by the treaties and the accompanying reservations. It is unquestionably clear that neither treaty would have been approved if there had been any doubt that the treaties gave us unilateral defense rights. Moreover, no one reading the legislative history can claim that the DeConcini reservation was in any way modified, cancelled, repudiated or superseded by the new leadership amendment. When the DeConcini reservation was first passed, the speech of the distinguished Senator from Arizona made clear that he considered it to cover only threats to the Canal, not Panama's internal affairs. The distinguished Floor leader made the same point. The new Leadership amendment merely restated what was already in the treaties, without resolving the issue of what happens when Panama's internal affairs become the threat to the Canal's opera 60. tions. However, the implication of the language of the new leadership amendment, and the legislative history quoted earlier, show conclusively that the United States believes that it has a right to move in to protect the Canal from any threat, without Panama's consent. Any attempt by Panama, therefore, to repudiate the DeConcini amendment, to minimize it, or to reject its force therefore strikes a blow to the heart of the understanding which the Senate believed to exist between Panama and the United States. Yet this is what Panama said in the Foreign Ministry's communique: "This is what has commonly been called the DeConcini reservation. Obviously its scope departed from the TorrijosCarter declaration because it eliminated the obligation of the United States not to intervene in the internal affairs of Panama and to respect the political independence and territorial integrity of Panama. "As abominable as the DeConcini reservation were the baseless explanations of the same senator, who seeks to revive U.S. intervention in the internal affairs of Panama. Fortunately, the Senate approved the 18 April resolution... which reaffirms respect for the principle of nonintervention in the internal affairs of the countries of America.... "With this last Senate resolution, it is evident that the United States has reaffirmed its international commitments in light of the UN and OAS charters. With it the DeConcini reservation has been rid of its imperialistic and interventionist claws, and the enforcement of the prinicple of nonintervention has been reestablished. "Panama experienced moments of patriotic indignation following the introduction of the so-called DeConcini reservation. Via diplomatic channels the national government firmly expressed its rejection of that amendment as something harmful not only to U.S. relations with Panama but its relations with the entire continent. President Carter and the Senate leaders quickly understood this. The Senate then pointed out that a major tenet of U.S. policy is its 61. adherence to the principle of nonintervention. And this The Foreign Ministry communique says explicitly that "the national government firmly expressed its rejection of that amendment." It states the firm belief that the addition of the new leadership amendment to the Panama Canal Treaty impacted retroactively on the Neutrality Treaty, so that there would not be the slightest doubt that the DeConcini amendment "would not continue in force." Mr. President, the Record shows conclusively that the Government of Panama does not accept the condition added to the Neutrality Treaty by the Senate, a condition that was added as a means of obtaining passage of the resolution of ratification. Moreover, this condition merely made explicit a principle that all factions in the treaty debates agreed to, namely, the right of unilateral military action against any threat to the Canal, even if that threat arose from the internal affairs of Panama itself. Neither the DeConcini reservation itself, nor any Senator in the debate demanded a right of intervention per se; but the whole Senate did demand the right to act to protect the Canal against any threat. In rejecting the DeConcini reservation, Panama has rejected the foundation upon which the treaty structure was built. |