We would like the American Law Division of the Library of Congress to supply us with their legal opinions on the following Issues: 2. The constitutionality of a Panamanian national holding a high The legality of the Panama Canal Treaty under international 3. Not subvant hou~) The first two issues are usually discussed together in any debate on the Panama Canal Treaty, and have been the subject of testimony before the Panama Canal/OCS Subcommittee of the House Merchant Marine and Fisheries Committee on numerous occasions. The first issue arises because of language that is contained in the Treaty itself. Article III (3) of the Treaty states that the United States will operate the Panama Canal through the establishment of a U.S. Federal agency (the Panama Canal Comssion). In addition, the Treaty also states in Article III (3) (a) that four of the nine members of the Board of the Commission shall be Panamanian nationals proposed by Panama and appointed by the U.S. Government. Article III (3) (c) further states that a Panamanian national shall serve as the Deputy Administrator of the Federal agency until 1990 when a Panamanian national shall become the Administrator, serving through the year 2000, when the Canal will become the property of Panama. The implementing legislation, P.L. 96-70, reflects these provisions, and states that the President shall nominate and appoint the U.S. and Panamanian nationals. The Board positions are superior positions requiring U.S. Board members only to be confirmed by the Senate. It is also interesting to note that Panamanians, being foreign nationals and not subject to our Constitution, cannot be tried for treason against the U.S., and obviously cannot be removed from office for such reason as can a U.S. citizen. 1 It is because of the above, and the fact that the Panamanians cannot bind themselves to our Constitution, as required by Article VI, Section 3 of the U.S. Constitution, that we feel a constitutional question exists. The second question concerns the validity of the Treaty itself. We do not need to outline for you all the provisions of own to find out the truth concerning the validity of the Panama Canal treaties. The important point that Dr. Breecher brought out in his March 26 testimony before the House subcommittee was the fact that Panama inserted a three-paragraph-long, unilateral reservation, misleadingly called an understanding, in both of their instruments of ratification, as well as the protocol of exchange that took place in Panama on June 16, 1978. Mr. Chairman, you have already stated this counterreservation, so I will not repeat it. This unilateral counterreservation clearly alters and modifies the legal effect of the DeConcini condition, as Panama makes clear that any U.S. action taken to reopen the canal, if it is closed, would be in self defense-article 18 of the OAS Charter—and only with Panama's cooperation. On the other hand, the DeConcini condition guarantees the U.S. right to intervene militarily and unilaterally, should the canal be threatened or closed. For example, last year on January 20, 1982, 3,000 Panamanian dockworkers demanding higher pay struck the Panama Port Authority, paralyzing loading and unloading of ships at the cities of Balboa and Cristobal, located at each end of the Panama Canal. By this unilateral act, Panama clearly showed they have the capability of closing the strategic canal that could threaten U.S. security. The Miami Herald reported on Friday, January 22, 1982: Three thousand dock workers demanding higher pay struck the Panama Port Authority, paralyzing loading and unloading at the cities of Cristobal and Balboa at either end of the waterway. What would the United States do if these 3,000 dock workers decided to go on strike again, but this time shutting down the Panama Canal instead of the ports? Does the United States have the unilateral right in international law to enforce the DeConcini condition by using U.S. military force to reopen the canal? Would the American people support intervention in Panama, knowing they do not have the right to intervene? Also, would the Government of Panama cooperate by permitting U.S. military forces to reopen the canal, as outlined in Panama's counterreservation to the DeConcini condition, a counterreservation that President Carter never accepted? If Panama decides not to cooperate, would Panama then call upon their Third World friends in the region to help them stop U.S. forces from crossing picket lines? The question today before the Subcommittee on Separation of Powers is whether or not Panama's counterreservation makes the treaties invalid based upon the United States never accepting Panama's counterreservation in their instrument of ratification, as required by article 20-2 of the 1969 Vienna Convention on Law of Treaties. The primary point in the State Department's position paper entitled "State Department Position on Ratification of Panama Canal Treaties" is: The Department's view, in sum, remains that the three-paragraph_statement in Panama's instruments of ratification does not purport to modify the legal effect of any portion of the treaties, and therefore is not a reservation requiring Senate ap STATEMENT OF PHILLIP HARMAN Mr. HARMAN. Mr. Chairman, my 40-page statement is a lengthy one and covers many pertinent points. However, I will keep it as short as possible. Mr. Chairman and members of the Subcommittee on the Separation of Powers, I am Phillip Harman, chairman of the Committee for Better Panama and United States Relations. I appreciate this opportunity to appear today and present my views on one of two subjects that never before have been discussed in a Senate hearing. One is whether or not the Panama Canal treaties have been ratified in international law, and the other is whether or not nonresident aliens can be civil officers of a U.S. Government agency, such as the Panama Canal Commission. My statement pertains only to the nonratification of the Panama Canal treaties in international law. The last time I appeared before a Senate hearing was on October 11, 1977, when I testified before the Senate Foreign Relations Committee regarding the Panama Canal treaties. At that time, I told the Senate committee that I had been politically involved with Panama longer than any other American, having headed an antiCommunist task force in that country from 1956 to 1968, as well as being related to the founder of the Republic of Panama, Jose Agustin Arango. Since 1968, the year the Panamanian nation was seized by gunpoint, I have devoted all of my time and efforts in regard to Panama and what is happening in that country. Regarding President Reagan and Panama, I briefed the President about Panama on September 18, 1975, just before the start of his 1976 campaign for the Presidency. As it was his first briefing ever on Panama, I found him extremely interested in what I had to say, and in particular about the military seizure of the country that could have a profound effect on the future security of the Panama Canal. Although President Reagan has said since assuming the Presidency that he would honor the canal treaties, he should take into consideration that the hearing today will prove conclusively that the treaties are not ratified in international law. In regards to the documented invalidity of the treaties, I have enclosed in my statement a draft act to amend Public Law 96-70, the law that implements the 1977 Panama Canal treaties. On March 7, 1979, I attended a House Subcommittee on Panama Canal hearing in which Dr. Charles H. Breecher, a jurist and former State Department official, testified about the constitutionality of the prospective Panama Canal Commission. It was at that hearing and with the expert testimony that Dr. Breecher gave that I began to look at the treaties in a different light. In Dr. Breecher's second testimony before the House Subcommittee on Panama Canal on March 26, 1981, he again brought up the question of the illegality of having nonresident aliens on the Panama Canal Commission, as well as the fact that in his documented findings, the Panama Canal treaties have not been ratified in international law. Because of Dr. Breecher's extensive research on the treaties, as well as the pertinent legal points that he brought out before the subcommittee, it led me to begin a personal investigation of my own to find out the truth concerning the validity of the Panama Canal treaties. The important point that Dr. Breecher brought out in his March 26 testimony before the House subcommittee was the fact that Panama inserted a three-paragraph-long, unilateral reservation, misleadingly called an understanding, in both of their instruments of ratification, as well as the protocol of exchange that took place in Panama on June 16, 1978. Mr. Chairman, you have already stated this counterreservation, so I will not repeat it. This unilateral counterreservation clearly alters and modifies the legal effect of the DeConcini condition, as Panama makes clear that any U.S. action taken to reopen the canal, if it is closed, would be in self defense-article 18 of the OAS Charter-and only with Panama's cooperation. On the other hand, the DeConcini condition guarantees the U.S. right to intervene militarily and unilaterally, should the canal be threatened or closed. For example, last year on January 20, 1982, 3,000 Panamanian dockworkers demanding higher pay struck the Panama Port Authority, paralyzing loading and unloading of ships at the cities of Balboa and Cristobal, located at each end of the Panama Canal. By this unilateral act, Panama clearly showed they have the capability of closing the strategic canal that could threaten U.S. security. The Miami Herald reported on Friday, January 22, 1982: Three thousand dock workers demanding higher pay struck the Panama Port Authority, paralyzing loading and unloading at the cities of Cristobal and Balboa at either end of the waterway. What would the United States do if these 3,000 dock workers decided to go on strike again, but this time shutting down the Panama Canal instead of the ports? Does the United States have the unilateral right in international law to enforce the DeConcini condition by using U.S. military force to reopen the canal? Would the American people support intervention in Panama, knowing they do not have the right to intervene? Also, would the Government of Panama cooperate by permitting U.S. military forces to reopen the canal, as outlined in Panama's counterreservation to the DeConcini condition, a counterreservation that President Carter never accepted? If Panama decides not to cooperate, would Panama then call upon their Third World friends in the region to help them stop U.S. forces from crossing picket lines? The question today before the Subcommittee on Separation of Powers is whether or not Panama's counterreservation makes the treaties invalid based upon the United States never accepting Panama's counterreservation in their instrument of ratification, as required by article 20-2 of the 1969 Vienna Convention on Law of Treaties. The primary point in the State Department's position paper entitled "State Department Position on Ratification of Panama Canal Treaties" is: The Department's view, in sum, remains that the three-paragraph statement in Panama's instruments of ratification does not purport to modify the legal effect of any portion of the treaties, and therefore is not a reservation requiring Senate ap This conclusion becomes particularly clear when it is understood that the Panamanian statement was added to the same instruments of ratification in which Panama expressly accepted and repeated all the U.S. reservations, including the DeConcini condition. The State Department bases its view that Panama's statement does not modify any portion of the treaties, and therefore is not a reservation requiring Senate approval. However, as my 40-page statement will show, Panama's statement would be the most fundamental modification. Although Panama included the DeConcini condition in their Neutrality Treaty instrument, as well as the inclusion of their statement in the Protocol of Exchange, this was a unilateral statement not accepted by the United States. The President of the United States could not accept it without Senate approval. If Panama's statement is not a reservation requiring Senate approval, why was it not in the U.S. neutrality instrument? The documented fact is that after Panama accepted all of the Senate's reservations, they said in their counterreservation that: The Republic of Panama agrees to the exchange of the instruments of ratification of the aforementioned Neutrality Treaty on the understanding, et cetera. In international law these words saying they agree to the exchange of the instruments on the understanding that is outlined in the first two paragraphs of their counterreservation explicitly and specifically alters and modifies portions of the Neutrality Treaty and, in particular, the DeConcini condition. There is no possible way that international law could interpret Panama's counterreservation differently. It should be noted that the use of the word understanding in the Panamanian counterreservation makes no difference whatsoever. If it is a bilateral treaty, it is still a reservation, as documented in article 2-1(d) of the Vienna Convention. Mr. Chairman, you previously quoted the law of article 2-1(d). I will not repeat it. However, also in the case of a bilateral treaty, such as the canal treaties, Panama's counterreservation must be approved by the other state, as outlined in article 20-2 of the Vienna Convention. This article 20-2 says: When it appears from the limited number of the negotiating states and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. I will not quote the American Law Institute restatement of the law, as it is in my statement. However, I will go further on "The Restatement of United States Foreign Relations Law" by Dr. Covey T. Oliver, a former coauthor of this law and currently president of the American Society of International Law. He said, on January 19, 1978, in a statement before the Senate Foreign Relations Committee regarding the Panama Canal treaties: In the text I go on at this point, speaking now as a former coauthor of The Restatement of United States Foreign Relations Law' and, as well, as a former official in the executive branch of the government, to sound a warning about the use of reservations and even of understandings, especially in bilateral agreements. It is a fundamental learning with respect to reservations and understandings that any variation in the text of a bilateral agreement is, in effect, a counteroffer. "The Restatement of Foreign Relations Law" states that quite flatly and I think correctly. |