ditions, Panama's general reference to the spirit of respect and cooperation can hardly be considered to express a modification of legal rights or duties that would be necessary to make that paragraph a reservation.

It is also worth noting that unlike the statements concerning the understandings of the United States set forth in the Protocol of Exchange, neither of the first two paragraphs of the Panamanian statement purports to reflect an understanding shared by the parties, although, as I have explained, those two understandings were fully consistent with those of the United States. Rather, the two Panamanian paragraphs carefully state that they represent the understandings of Panama.

Finally, Mr. Chairman, we come to the third paragraph of the Panamanian statement, which reads as follows:

The Republic of Panama declares that its political independence, territorial integrity and self-determination are guaranteed by the unshakable will of the Panamanian people. Therefore, the Republic of Panama will reject, in unity and with decisiveness and firmness, any attempt by any country to intervene in its internal or external affairs.

This paragraph is a unilateral political declaration of Panamanian policy and does not purport even to interpret, much less modify, any provision of the treaties.

Moreover, as was true with respect to the other two paragraphs, the Panamanian policy reflected in this declaration is entirely consistent with the so-called leadership amendment and leadership reservation which the Senate added to the Neutrality Treaty and the Canal Treaty. The leadership amendment, which was drawn from the statement of understanding issued by both governments in 1977, was incorporated by the Senate into the Neutrality Treaty as a correct and authoritative statement of certain rights and duties of the parties. It was expressly accepted and reinterated by Panama in its instrument of ratification.

The amendment provides that the right of each party to protect the canal does not mean, nor shall it be interpreted as, a right of intervention of the United States in the internal affairs of Panama. Any U.S. action will be directed at insuring that the canal will remain open, secure and accessible, and it shall never be directed against the territorial integrity or political independence of Panama.

In its leadership reservation to the Canal Treaty, the Senate also added similar language concerning the rights of both parties under the treaties. In doing so, it used the following terms:

Pursuant to its adherence to the principle of non-intervention, any action taken by the United States of America in the exercise of its rights to assure that the Panama Canal shall remain open, neutral, secure, and accessible, pursuant to the provisions of the Panama Canal Treaty, the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, and the resolutions of ratification thereto, shall be only for the purpose of assuring that the canal shall remain open, neutral, secure, and accessible, and shall not have as its purpose or be interpreted as a right of intervention in the internal affairs of the Republic of Panama or interference with its political independence or sovereign integrity.

This reservation, Mr. Chairman, was adopted after the DeConcini condition and was clearly intended to clarify that condition. These actions by the Senate were fully consistent with the intent of the

DeConcini condition, as stated by Senator DeConcini himself in introducing the condition.

Through the leadership reservation and amendment-proposed, I should reemphasize, by the Senate and accepted verbatim by the Government of Panama-the two governments agreed to clarify that any action taken by the United States in the exercise of its treaty rights to assure that the canal remain open, neutral, secure and accessible would not have as its purpose or be interpreted as a right of intervention in the internal affairs of Panama. Thus, while the third paragraph of the added Panamanian statement declares Panama's policy of opposition to intervention, the leadership reservation and amendment, by their terms as well as viewed in light of their legislative histories, make clear that the action to protect the canal pursuant to the treaties, including the DeConcini condition, would not be interpreted as a right of intervention in Panamanian affairs. The third paragraph of the Panamanian statement is therefore in no sense inconsistent with the DeConcini condition or any other part of the treaties, much less does it purport to effect any sort of modification of the treaties. Like the other two paragraphs of the Panamanian statement, this paragraph is not a reservation. To sum up briefly on the issue of the validity of the treaties, the President's action in accepting the Panamanian instruments of ratification on behalf of the United States brought the treaties into force as a matter of international law. The argument that the President acted improperly in going forward with the U.S. ratification of the treaties rests entirely on the incorrect assumption that in its three-paragraph addition to its instruments of ratification, the government of Panama proposed some sort of counter-reservation.

As I have indicated, perhaps at excessive length, none of the elements of those three paragraphs purports to modify or exclude the legal effect of any portion of the treaties. Those paragraphs, therefore, do not constitute reservations which would have warranted resubmission to the Senate.

Mr. Chairman, I should also-

Senator EAST. Excuse me.

Mr. DALTON. Yes.

Senator EAST. I hate to interrupt you. Unfortunately, in this institution voting is imposed on top of the hearing process, and the Senate is in the process of voting right now and I must depart.

I would like to leave this option available to you because I know you are under a pressing schedule, as is Dr. Breecher. I did have some questions I would like to ask you, but I must go over and vote and I hope circumstances would allow me to return immediately. But if they do not, in terms of back-to-back votes, I shall have to stay, and I know that presents enormous inconveniences for witnesses, particularly those who have already testified.

I am sorry; I have no alternative for the rest of you. I would like for you to wait until we can return. What I would like to do, not to cut you short, is to allow a staff member to receive the balance of your testimony here.

Mr. DALTON. Fine.

Senator EAST. I did have questions I personally would like to ask. What we could do, if time would not permit you, is I will simply

submit them subsequently to you in written form to the State Department. Then you could respond; that is, to clarify points that you are now making.

I shall be happy to cooperate with you in either way. If you would like to remain and can, that would be fine. If you find it impossible to do that, please feel free to finish your testimony, with staff receiving it, and questions that I might have I shall then subsequently submit to you in written form. Would that be satisfactory to you?

Mr. DALTON. That is quite satisfactory. Thank you, Senator.

[Subsequent to the hearing, Mr. Dalton supplied the following information in response to questions of Senator East and Mr. Harman:]

RESPONSES OF Robert E. DaLTON TO QUESTIONS OF SENATOR JOHN P. EAST Question 1. In international law, U.S. constitutional law, and American diplomatic practice, is it an accepted principle that the texts of a treaty must be identical before a "meeting of the minds" can be considered to have occurred and before the treaty can be considered legally binding on the parties?

Answer. The "meeting of the minds" principle is one taken from the domestic law of contracts. It is not generally applied to international agreements.

Under international law, the text of a treaty includes the various language versions in which it is expressed. When a treaty is authenticated in two or more languages, as the Panama Canel Treaties were, the terms of the treaty are presumed to have the same meaning in each authentic language version. Nevertheless, there are a number of examples of cases in which treaties have been concluded in which the meaning of two language texts differed. An early Supreme Court case recognizes that such agreements are legally binding and illustrates how divergencies may be resolved.

The Spanish and English texts of Article VIII of the Treaty of February 22, 1819, by which Spain ceded Florida to the United States, were not identical in meaning as to the confirmation of the grants to land in Florida made by the King of Spain prior to January 24, 1818. Mr. Justice Baldwin had no difficulty in construing the different texts in the Supreme Court case of United States v. Arredondo, 6 Pet. 691, 741 (1832).

Question 2. Are the instruments of ratification of a treaty part of the text of the treaty?

Answer. No. Instruments of ratification of a treaty are not part of the text of the treaty.

Question 3. If the answer to Question #2 is "no", what is the relationship between the text of a treaty and an instrument of ratification of the treaty?

Answer. Ratification is an international act by which a State establishes on the international plane its consent to be bound by a treaty. Instruments of ratification are customarily exchanged by parties to a bilateral treaty. The exchange evidences the consent of the parties to be bound.

Question 4. What is the legal significance of an instrument of ratification and of the exchange of such instruments?

Answer. Signature of a protocol of exchange is the last legal act required to bring treaties into force. With respect to the Panama Canal Treaties the Protocol of Exchange had the additional legal function of evidencing the acceptance by Panama of the amendments, conditions, reservations, and understandings contained in the Senate resolutions advising and consenting to ratification of those treaties.

Question 5. Is there precedent in American diplomatic practice for the exchange and acceptance of instruments of ratification that differ in their language?

Answer. The exchange of instruments of ratification that differ in their language is not uncommon. For example, while this response was being prepared the United States and the Netherlands exchanged instruments of ratification of the Mutual Assistance in Criminal Matters Treaty of June 12, 1981. The United States instrument contained no reservation; the Netherlands instrument contained a reservation (authorized by the treaty) to the effect that the treaty would not apply to requests for assistance relating to fiscal offenses addressed to the Netherlands Antilles.

Question 6. What is the legal and/or practical significance of the Communique of the Foreign Ministry of Panama of April 25, 1978 in which the DeConcini Reservation is rejected by Panama?

Answer. In the view of the Department of State there is no legal significance to a unilateral communique of a country's Foreign Ministry relating to a provision in a treaty to which the country subsequently expresses its consent to be bound.

Question 7. What is the legal and/or practical significance of public statements of President Omar Torrijos Herrera that appear to negate, nullify, reject, or minimize the DeConcini Reservation?

Answer. From a legal point of view, the issue raised by this question is the same as that raised by question 6. The same result follows.

Question 8. Mr. Dalton stated in the hearing on June 23 that "the draft instruments of ratification proposed by Panama were furnished to the leadership (of the U.S. Senate) and to the Foreign Relations Committee with the paragraphs that were in them by the Executive before the instruments were exchanged. And we received no indication that there was any concern with those or that any other procedures should be offered."

(a) Please provide copies of the draft instruments that were submitted to the leadership and the Foreign Relations Committee.

(b) To which Senators explicitly were these drafts submitted? Please provide copies of any cover letters or explanatory materials that were submitted to the Senators at that time and also any written responses received from these Senators in regard to these drafts at that time.

(c) Does the submission of these drafts to the Senate leadership imply that the Senate has authority to reject these instruments in accordance with the "advise and consent" principle? In other words, (c-1) Why did the State Department believe these drafts should be submitted to the Senate leadership? (c-2) Why did the State Department not submit them to all Senators, and (c-3) If the Senate leadership had found the drafts unacceptable, what would have been the recourse of the State Department?

Answer. During the entire period when the Panama Canal Treaties were under consideration, there was close consultation between the Executive Branch and the Senate. The Department official responsible for these consultations was Herbert J. Hansell, the Legal Adviser. The nature of the consultations was informal; they were not handled by letter. Draft texts of the instruments of ratification and the protocol of exchange were given to the staff of the leadership and the Foreign Relations Committee by Mr. Hansell under the circumstances described in the Department's response to items 1-6 of the August 2 questions. Copies of the text furnished to the Committee staff are attached.

Question 9. When did the State Department first become aware of the Panamanian intention to add the three paragraphs to their instruments of ratification? Answer. The Department first discussed with Panama the text of their proposed understandings in May, 1978.

Question 10. What was the response of the State Department to Panama at that time?

Answer. It is not the Department's practice to disclose the nature of confidential diplomatic consultations with foreign governments.

Question 11. When and how, if at all, did the State Department undertake to make the American public aware of the Panamanian intention to add the three paragraphs?

Answer. The Department provided copies of the instruments and protocol to the press for release on the date of signature and subsequently printed them in the State Department Bulletin and the Treaty Series.

Question 12. Article 2, section 1(d) of the Vienna Convention on the Law Treaties defines a "reservation" as: "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." Under this definition, why are the three paragraphs of the Panamanian instrument of ratification not a reservation? Answer. This question was discussed in extenso in the testimony of Robert E. Dalton in the hearing on June 23, 1983 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary.

Attachments: Drafts of instruments of ratification of Panama Canal Treaty.

Attachment A. Draft U.S. Instrument of Ratification of the Treaty on the
Permanent Neutrality and Operation of the Panama Canal

JIMMY CARTER, PRESIDENT OF THE UNITED STATES OF AMERICA

To all to whom these presents shall come, greeting:

Considering that: The Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (Neutrality Treaty) was signed at Washington on September 7, 1977; and

The Senate of the United States of America by its resolution of March 16, 1978, two-thirds of the Senators present concurring therein, gave its advice and consent to ratification of the Neutrality Treaty, subject to the following:

(a) AMENDMENTS:

(1) At the end of Article IV, insert the following:

"A correct and authoritative statement of certain rights and duties of the Parties under the foregoing is contained in the Statement of Understanding issued by the Government of the United States of America on October 14, 1977, and by the Government of the Republic of Panama on October 18, 1977, which is hereby incorporated as an integral part of this Treaty, as follows:

"Under the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (the Neutrality Treaty), Panama and the United States have the responsibility to assure that the Panama Canal will remain open and secure to ships of all nations. The correct interpretation of this principle is that each of the two countries shall, in accordance with their respective constitutional processes, defend the Canal against any threat to the regime of neutrality, and consequently shall have the right to act against any aggression or threat directed against the Canal or against the peaceful transit of vessels through the Canal.

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"This does not mean, nor shall it be interpreted as, a right of intervention of the United States in the internal affairs of Panama. Any United States action will be directed at insuring that the Canal will remain open, secure, and accessible, and it shall never be directed against the territorial integrity or political independence of Panama.'.'

(2) At the end of the first paragraph of Article VI, insert the following:

"In accordance with the Statement of Understanding mentioned in Article IV above: 'The Neutrality Treaty provides that the vessels of war and auxiliary vessels of the United States and Panama will be entitled to transit the Canal expeditiously. This is intended, and it shall so be interpreted, to assure the transit of such vessels through the Canal as quickly as possible, without any impediment, with expedited treatment, and in case of need or emergency, to go to the head of the line of vessels in order to transit the Canal rapidly."."

(b) CONDITIONS:

(1) Notwithstanding the provisions of Article V or any other provisions of the Treaty, if the Canal is closed, or its operations are interfered with, the United States of America and the Republic of Panama shall each independently have the right to take such steps as each deems necessary, in accordance with its constitutional processes, including the use of military force in the Republic of Panama, to reopen the Canal or restore the operations of the Canal, as the case may be.

(2) The instruments of ratification of the Treaty shall be exchanged only upon the conclusion of a Protocol of Exchange, to be signed by authorized representatives of both Governments, which shall constitute an integral part of the Treaty documents and which shall include the following:

"Nothing in the Treaty shall preclude the Republic of Panama and the United States of America from making, in accordance with their respective constitutional processes, any agreement or arrangement between the two countries to facilitate performance at any time after December 31, 1999, of their responsibilities to maintain the regime of neutrality established in the Treaty, including agreements or arrangements for the stationing of any United States military forces or the maintenance of defense sites after that date in the Republic of Panama that the Republic of Panama and the United States of America may deem necessary or appropriate." (c) RESERVATIONS:

(1) Before the date of entry into force of the Treaty, the two Parties shall begin to negotiate for an agreement under which the American Battle Monuments Commission would, upon the date of entry into force of such agreement and thereafter, administer, free of all taxes and other charges and without compensation to the Republic of Panama and in accordance with the practices, privileges, and immunities associated with the administration of cemeteries outside the United States of America by the American Battle Monuments Commission, including the display of the