Neutrality Treaty, they start out perfectly correctly, in accordance with normal diplomatic practice, by repeating word for word the various U.S. amendments, reservations, conditions, and understandings added to the origional treaty texts by the U.S. Senate and incorporated in the U.S. instruments of ratification. If, after repeating these United States changes to the treaties signed in September 1977, the Republic of panama had said in its ratification documents: "I agree and ratify," or words to that effect, then there would, indeed, be treaties in international laws as of 1 October 1979, or at least their validity could not have been attacked prima facie on the grounds of non ratification. However, it can be seen that instead of agreeing to ratification, Panama said: Dinstrum ( "The Republic of Panama agrees to the exchange of the instruments of ratification of the Panema Canal Treaty on the understanding that there are positive rules of public international law contained in multilateral treaties to which both the Republic of Panama and the United States of America are parties and which consequently both States are bound to implement in good faith, such as Article I, paragraph 2, and Article 2, paragraph 4, of the Charter of the United Nations and Articles 18 and 20 of the Charter of the Organization of American States." "It is also the understanding of the Republic of Panama that the actions which either party may take in the exercise of its rights and the fulfillment of its duties in accordance with the aforesaid Panama Canal treaty, including measures to reopen the Canal or to restore its normal operation, if it should be interrupted or obstructed, will be effected in a manner Consistent with the principles of mutual respect and cooperation on which the new relationship established by that treaty is based. "The Republic of Panama declares that its political independence, territorial integrity, and self-determination are guaranteed by the unshakeable 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." The same three paragraphs are in the Panamanian instrument of ratification of the Neutrality Treaty. Mr. Chairman, this unilateral Panamanian understanding in the Panamanian instruments of ratification not accepted by the U.S. renders the ratification null and void ab initio. The one essential requirement for any bilateral treaty in order to be a treaty is that there be a meeting of minds expressed in writing, signed by competent authorities, Vienna 1969 Convention on the Law of Treaties. ( The two parties must agree to the same piece of paper. If one party makes additions, through its instrument of ratification, to the original treaty text already signed, or amends it, strikes something out, interprets something and so on, then these changes, whatever their contents, must be formally and without counterreservation, accepted verbatim by the other party. That's so even if the change has no substantive meaning, although that's something governments usually just don't do in their instruments of ratification. But if unilateral additions of whatever kind are in the instruments of ratification as a condition to one party's agreement, then they must be accepted formally by the other party in a bilateral treaty, or else there is no ratification, just a counterproposal and the treaty negotiations still keep going on. international law, but I shall quote first the opinion of the "We can assert that, regardless of the term used, what matters is if the condition, reservation, amendment, or declaration made by one party to the other modifies or changes what has been agreed to by the plenipotentiaries. If that change has been made, it is unquestionable that the treaty has not been ratified but, rather, that a counter offer has been made which the other is at liberty to reject, modify, or approve. Only if it approves the counteroffer is the consent or perfecting (perfeccionamiento) of the wish of both parties to obligate themselves realized." On the U.S. side, I quote Senator Sarbanes, one of the floor managers for the treaty in the Senate: Mr. Sarbanes: "I am now quoting Charles G. Fenwick, International Law: 'Since the signature of a treaty represents a meeting of minds of the several parties upon specific provisions involving reciprocal obligations, any changes or amendments inserted by one party as a condition of ratification must be accepted by the other party if the treaty is to come into legal effect.'' "I ought to point out that ever since 1922 the technique which the Senate has used to alter the legal effect of provisions contained in a treaty, in exercising its advice-and-consent function, or the primary technique, has been through amendments to the articles of ratification as reflected in reservations. These, of course, then have to be agreed to, or accepted by the other party to the treaty if, in fact, there is to be a treaty." Congressional Record, Senate, 3/15/78, also inserted there 6/5/78 by Senator Helms. The use of the word "understanding" in that Panamanian counterreservation makes no difference whatever. Panama could have just as well have called it an "interpretation," "nuance," or whatever. If it is in the instrument of ratification of a bilateral treaty, it's still a reservation, the equivalent of an amendment to the treaty text. In addition to the U.S. and Panamanian statements quoted above, here's Article 2.1(d), 1969 Vienna Convention on the Law of Treaties: Article 2.1(d). "'reservation' means 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," And as a matter of course, in the case of a bilateral treaty, such as the Canal treaties, such a reservation in the instrument of ratification of one State must be approved specifically and explicitly by the other State. At the risk of overkill, I'll quote on that point also Article 20, 2, of the 1969 Vienna Convention on the Law of Treaties: Article 20.2. "When it appears from the limited number of negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the be found by the treaty, a reservation requires acceptance by all the parties." The rules are somewhat different in the case of multilateral treaties according to the 1969 Vienna Convention, but this does not concern us here. Surely no one would want to argue that the Canal treaties are not bilateral treaties, or that the U.S. intended to consent to the treaties if the DeConcini reservation was not purely and simply accepted by Panama, along with the other changes in the treaty text mandated by the Senate a condition for its advice and consent. as It follows that the Canal treaties are not ratified unless one of two things happens: either the Panamanians formally and in writing withdraw their three-paragraph-long "understanding" or the President of the United States, with the advice and consent of two-thirds of the Senate, approves the Panamanian "understanding" in writing. At this point, I also quote a letter from Herbert J. Hansell, State Department Legal Adviser, concerning the procedure to be followed if Panama were to adopt a substantive amendment or reservation to the treaties after the Senate had given its advice and consent: - "This will confirm our previous advice to you"-- i.e., Senator John J. Sparkman, then chairman, Senate Foreign Relations Committee "that under United States law substantive amendments and reservations to the Panama Canal treaties put forth by Panama that would affect United States rights or obligations under the treaties cannot be accepted by the United States unless approved by the President and the Senate." "The American Law Institute, in the Restatement of the |