importance of adding an understanding or doing something that would clarify this section. I would like to approach it from a slightly different point of view than Senator Javits. Mr. Secretary, you know that section 8(a) (2) of the war powers resolution prohibits the President from inferring authority from any treaty to introduce the Armed Forces into hostilities. Let me just quickly read that section. Section 8(a): Authority to introduce United States armed forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred- ✦ ✦✦ (2) from any treaty, heretofore or hereafter ratified, unless such treaty is implemented by legislation specifically authorizing the introduction of United States armed forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the means of this Joint Resolution. However, a literal reading of article IV of the neutrality treaty would appear to require the United States automatically to introduce its Armed Forces into hostilities if the canal's neutrality is threatened. Again, let me quickly read article IV of the neutrality treaty: The United States of America and the Republic of Panama agree to maintain the regime of neutrality established in this treaty, which shall be maintained in order that the canal shall remain permanently neutral, notwithstanding the termination of any other treaties entered into by the two contracting parties. As I read the article, it is unconditional. I know the Secretary of State has interpreted it somewhat differently in his answer to Senator Javits. But if it is not qualified by language giving the United States the right to choose not to act, as all of our other defense treaties doby the way we have researched them and I think this is the only one that does not-it seems to me that we are going to be in some rather significant difficulty. I was pleased to hear the Secretary say that he would not oppose an understanding, as I understood him, an understanding which would clarify this point. Secretary VANCE. That's correct. Senator CLARK. I think this goes to the question of our other treaties, and particular to the question of the War Powers Resolution itself. CONGRESSIONAL APPROVAL OF INTRODUCTION OF ARMED FORCES On a different line, but really somewhat the same point, with regard to article IV of the neutrality treaty, Mr. Secretary, if the President were to introduce the armed forces into hostilities to maintain the neutrality of the canal, would prior congressional approval be required in your judgment? Secretary VANCE. It would not be required if he had to act immediately, as he currently has the power to act. However, the War Powers Act would come into effect and the provisions of it would have to be abided by. Senator CLARK. If it were not an emergency, you would feel that he would have to come to the Congress for that approval? Secretary VANCE. That's correct. TERM, "REGIME OF NEUTRALITY” Senator CLARK. Article IV, which is the one that we seem to be spending most of the time on and I think appropriately so, refers to maintaining a regime of neutrality. That phrase, "the regime of neutrality," becomes very important in terms of our right to intervene. I wonder if you or those who negotiated the treaty could speak a little more broadly about the origin of that term, what it has really meant, if anything, in international law, and what you mean by a "regime of neutrality?" Secretary VANCE. Let me ask Ambassador Linowitz to respond to that. Ambassador LINOWITZ. It has been, Senator, the interpretation both ways-Panamanian and ours-that the phrase, "regime of neutrality" covers these various points in the treaty: First, that it remain secure and open, article II; and again, security, efficiency, and proper maintenance as described in article III. Those are the essential elements of what we call the "regime of neutrality." Senator CLARK. Let's now go to a different area. EXCLUSIVE RIGHTS TO NEGOTIATE IN PANAMA We have some debate and discussion here with four or five members about the exclusive right to negotiate a new canal in Panama. I want to read that more carefully myself. But I am trying to think of the opposite side of that. Suppose that you had not later in the negotiations added this clause of exclusivity. Would then Panama have had the right to negotiate with the Soviet Union or any other country to build a canal in Panama, in your judgment? Secretary VANCE. In my judgment, yes. CONSEQUENCES OF NOT RATIFYING TREATY In your judgment, what would be the consequences as succinctly as possible of not ratifying the treaty? What would be the consequences in terms of either the defense of the canal or its continued use? Secretary VANCE. I hesitate to speculate. I have commented in my opening statement on what I think the possible consequences might be. But I would wish to say again that it would be a matter of very grave concern if it were not ratified. Senator CLARK. Both in terms of Latin America and Panama? APPROPRIATIONS INVOLVED IN PACKAGE Senator CLARK. I have one point that may seem picayune, but I would like to raise it with you, Mr. Secretary. In your testimony, you say, "There are no appropriations involved in this package." I think you mentioned that again in answer to another question. Secretary VANCE. Yes. Senator CLARK. For the sake of absolute accuracy, I would think that the foreign military sales credit provision of $50 million would require 10 percent, under the Arms Export Control Act, to be actually appropriated. That is, it would require a $5 million appropriation by the two Houses of Congress. Secretary VANCE. To be set aside in a special fund. I have one other question. REACTION OF NON-WESTERN POWERS TO TREATY You have spoken to this very briefly, but I wonder particularly what kind of reaction you have received from any of the so-called nonWestern powers with regard to the treaty. Do you have any indications, that you can speak of here publicly, through our embassies or other sources of information concerning the Soviet Union, China, Eastern Europe, or Cuba? Ambassador BUNKER. We have had messages from other canal users, nonhemispheric users, such as the United Kingdom, from Prime Minister Callaghan; from the Japanese, who are big users; from the French; and I think that 9 or 10 countries who are users of the canal have written of their support for the conclusion of the treaty. Secretary VANCE. I do have Fukuda's message, if you would like me to read that into the record. He says It is indeed an occasion for felicitation that the negotiations of a new arrangement on the Panama Canal, which was completed in 1914 by the collaboration of the United States of America and the Republic of Panama, have been concluded in a satisfactory manner, after many years of persevering efforts of both countries and have thus brought about today's signing of the treaties. As a major user of this canal, the maintenance and the security of the canal and the insuring of the freedom of indiscriminatory passage of the canal are of vital importance to Japan. My country has, therefore, followed the progress of the negotiations with great interest. I should like to take this opportunity to express my warmest appreciation for Your Excellency's outstanding leadership, as demonstrated by the successful conclusion of these treaties. Senator CLARK. Can you say anything about non-Western powers, such as Eastern Europe, the Soviet Union, or China? Is there anything you can say about their reaction generally to this treaty. I am not speaking of official reactions in writing. But is this something that, say, the Soviet Union intends to oppose, in your judgment? Secretary VANCE. In my judgment they will not oppose it. I can give you a much clearer answer to your question after this next 2 weeks, when we will be meeting with many, many countries at the United Nations. At that time I would be happy to supply additional information to you on this specific point. [The information referred to follows:] REACTION OF NON-WESTERN POWERS TO TREATY [Supplied by Department of State] There has been little official comment on the new Panama Canal treaties from the Soviet Union, the People's Republic of China, or the communist nations of Eastern Europe. During the United Nations General Assembly, Secretary of State Vance met with the foreign ministers of the Soviet Union, the People's Republic of China, East Germany, Romania, Poland, Czechoslovakia, Hungary and Yugoslavia; but the Panama Canal treaties did not come up in any of these conversations. In general debate Romania expressed satisfaction that the treaties had been concluded, and the People's Republic of China expressed firm support for the Panamanian people "in their valiant and protracted struggle for the recovery of the Panama Canal." Other reaction from these countries was varied. Yugoslavia's President Tito sent President Carter a message calling the treaties an important step forward. Commentary in the Soviet press criticized those in the United States opposing the treaties while lamenting that the treaties would continue United States control of canal operation for 23 more years. Commentary in the People's Republic of China described the treaties as a victory over U.S. "imperialism" and urged Panama to press for complete control over the Canal. Senator CLARK. I see my time is up. Thank you very much, gentlemen. The CHAIRMAN. Senator Biden. Senator BIDEN. Thank you, Mr. Chairman. PURPOSE OF SENATOR BIDEN'S QUESTIONS Mr. Secretary and Ambassadors, I don't think there is any question that were we embarking on the construction of a treaty in the first instance in 1977, we would not be able to do it the way we did it in 1903. So the comments made by my colleagues and the point of view, about the way we went about it at the turn of the century as not something of which we should be particularly proud are shared by me. My purpose in asking the questions I am about to ask, and the others in our second round, assuming we have the chance, is to attempt to avoid confusion that could follow on in the mind of the American public, or quite possibly the Panamanians, or the U.S. Congress by various interpretations and readings of the treaty. I have yet to make up my mind as to how I will vote on this treaty, although I am disposed to support the treaty. What I would like to do is go back and ask some specific questions. on some issues that have already been raised, and if I have any time left to then proceed to two new areas. But I would attempt to have some continuity. ARMS SHIPMENTS' ACCESS TO CANAL DURING UNDECLARED WAR When we earlier discussed the neutrality provisions with regard to warships of other nations and whether or not they would have access to use of the canal, it was pointed out by Senator Church that that is not a great concern to us because we usually preclude access to the canal. But what about a situation where we have an undeclared war, such as went on in Southeast Asia, where a Third World power in the Western Hemisphere is being supplied military armament by one of our adversaries. Would they have access to use the canal? For example, shipments of arms or whatever they may be from China through the canal to a South American country on the eastern side of South America-would there be access? Secretary VANCE. The answer is yes, they would have access to the canal. Senator BIDEN. Presently, would we be able to preclude such access? Under the arrangement we presently have would we be in a position to be able to stop a Chinese vessel which was supplying weapons to an insurgent group in Latin America that we did not support? Secretary VANCE. It would depend on how you interpret the HayPauncefote Treaty. I doubt that we would. Senator BIDEN. You doubt that we would as a practical matter, or you doubt that we would as a technical matter? Secretary VANCE. I doubt that we would as a practical matter, and as a technical matter I would want to check further with legal experts on that. Senator BIDEN. I would appreciate it if you would find out what the situation technically is now. Secretary VANCE. We will do that, Senator. [The information referred to follows:] ARMS SHIPMENT'S ACCESS TO CANAL DURING UNDECLARED WAR [Supplied by Department of State] The 1901 Hay-Pauncefote Treaty between the U.S. and the U.K. establishes the basic framework for the Canal's neutrality which has been in effect since the Canal was opened. That Treaty provides that the Canal shall be free and open to ships of all nations without discrimination. The U.S. has taken the position in the past that during periods in which the United States is at war with another country, the Hay-Pauncefote Treaty does not preclude it from denying use of the Canal to its enemies. The case has never arisen in practice since no enemy ship has ever reached the Canal and asked to transit in wartime. However, the U.S. has never considered that in any other circumstances it would have any right to exclude vessels, or cargoes from the Canal on the grounds that they were bound for potential adversaries. The new Neutrality Treaty is even more explicit than Hay-Pauncefote in this respect. It requires that the Canal be open to vessels of all nations without discrimination in time of war as well as in time of peace. Thus, the U.S. and Panama during their respective periods of Canal operation would be bound to transit vessels irrespective of their relations with the country to which the vessels are destined. POSSIBILITY OF PANAMA'S BEING ABLE TO NEGOTIATE WITH ANOTHER COUNTRY Senator BIDEN. There is discussion by both me and others as to whether or not failure to reach agreement on the construction of a new sea level canal between the United States and Panama would allow Panama to proceed to negotiate with any other country. As I understand the interpretation of the article in question, article XII, the interpretation given by all three of you gentlemen is that the only party with whom the Panamanians can even negotiate the construction of a sea level canal is the United States. They cannot even consider the possibility of that with any other country. Secretary VANCE. That is my interpretation of that article. Senator BIDEN. The basis of that interpretation is the language which says that both parties commit themselves to study jointly the feasibility of a sea level canal in the Republic of Panama. Is that the basis of that interpretation? Secretary VANCE. The basis of it is 2(a): "No new interoceanic canal shall be constructed in the territory of the Republic of Panama |