along the lines of the recently approved Treaties with Mexico and Canada on the Execution of Penal Sentences? 2. Can the courts of the United States legally retain jurisdiction during the 30-month transition period when there is no sovereign interest? Is this grant of jurisdiction a limitation although temporary of Panamanian sovereignty? Hon. JOHN J. SPARKMAN, DEPARTMENT OF JUSTICE, Washington, D.C., November 1, 1977. Chairman, Committee on Foreign Relations, U.S. Senate, Dear Mr. CHAIRMAN: As you will recall, during his recent appearance before your Committee concerning the Panama Canal Treaties, the Attorney General was asked a number of questions which were to be answered in writing. Subsequently, we also received letters from Senator Baker and Senator Percy with additional questions to be answered for the record. Below are our responses. 1. Senator Case asked that we file a description of the facts in the case of Foster v. Neilson, 2 Pet. (27 U.S.) 253 (1829), an early case which announced the doctrine that treaties can be self-executing. Foster brought suit against Neilson charging that Neilson had taken possession of land belonging to Foster and refused to give it up. Foster's claim traced back to a grant from the Spanish government made in 1804. The Spanish government in 1800 had, however, ceded the Louisiana territory to France which, in turn, ceded it to the United States in 1803. If the land in dispute had been validly ceded to France in 1800 then Spain would not have been able to grant title to it subsequent to its treaty with France. There was some dispute between Spain and the United States as to whether the land (which was east of the Mississippi in what was then called West Florida) had been part of the territory ceded by Spain to France and ultimately to the United States. Chief Justice Marshall noted that in a controversy of this kind involving the national boundary the judiciary is commonly bound by the construction given the treaty by the political departments of the Nation and that the United States had acted on the view that the land had been ceded by Spain in 1800. The United States had taken possession of part of West Florida and legislated with regard to it. Thus, in the view of the Court the 1804 Spanish grant to Foster was invalid. The Court further held that an 1819 treaty between Spain and the United States ceding East and West Florida to the United States did not alter the situation, despite language in that treaty referring to the ratification of earlier grants by the Spanish king. The Court, 27 U.S., at 314, noted that a treaty could, by its own terms either be self-executing or not : Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legis lative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court. The court concluded that the 1819 treaty, because of its particular language, required legislation for its implementation. Since no legislation was passed to provide for the confirming of Spanish titles in the area of the land in dispute the court held that Foster's suit had been properly dismissed. 2. During the hearings Senator Case and Senator Percy asked about the meaning of Article VI of the Neutrality Treaty, particularly as it relates to the right of vessels of war and auxiliary vessels of the United States and Panama "to transit the Canal expeditiously." The Joint Statement of Understanding issued by President Carter and General Torrijos of October 14, 1977, notes: 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. 13 Weekly Comp. Pres. Doc. 1547. Whatever uncertainty might have existed as to the meaning of the words "expeditious passage" has been resolved by the Joint Statement. See Vienna Convention on the Law of Treaties, Art. 31(2). 3. At the hearings and in the letter from Senator Percy reference was made to paragraph 11 of Article IX of the Panama Canal Treaty which states that the parties shall conclude an agreement for the transfer of sentenced offenders to their home countries. The requirement to negotiate will not be effective, of course, until the Panama Canal Treaty comes into force. Conclusion of such an agreement is not a condition precedent to ratification of the Panama Canal Treaty. At present, we are unaware of any negotiations with Panama concerning the text of a prisoner exchange agreement. The treaties with Mexico and Canada might well be models since they are the only agreements of this type that have been concluded. 4. Senator Percy asked at the hearings and in a subsequent letter to the Attorney General whether the courts of the United States could legally retain jurisdiction during the transition period after the Panama Canal Treaty comes into force in light of the treaty provisions regarding sovereignty. The provisions for a 30 month Transition Period are found in Article XI of the proposed Treaty. Paragraph 5 of Article XI states that United States courts in the former Canal Zone may continue to function during the transition and to exercise jurisdiction, as specified in that article. It is clear that the United States may provide by treaty, as it has done here, for the exercise of judicial authority in other countries. The Supreme Court has said: The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. In re Ross, 140 U.S. 453, 463 (1891) (extraterritorial jurisdiction of consular courts). The most common exercise of this power today is in connection with status of forces agreements. See generally Note, "Criminal Jurisdiction Over American Armed Forces Abroad", 70 Harv. L. Rev. 1043 (1957). It is our conclusion that the validity of the treaty arrangement concerning court jurisdiction is not dependent on sovereignty. 5. Senator Griffin inquired as to the rights that American civilians would have who are tried in Panamanian courts, particularly the right to trial by jury. The proposed Agreement in Implementation of Article III of the Panama Canal Treaty states in Art. XIX (9) that "Whenever an accused United States citizen employee or a dependent is tried by the authorities of the Republic of Panama he shall be entitled to the procedural guarantees listed in Annex C of this Agreement." These include the right to a speedy trial and the right to counsel at all stages of the proceeding. Annex C, headed Procedural Guarantees. includes a list of 17 rights. There is also provision for "all other guarantees and rights provided for in the Constitution, Judicial Code and other laws of the Republic of Panama." Jury Trial is not among them; this is not a normal feature of Latin American legal systems. 6. In his letter Senator Baker asked about the impact of the War Powers Resolution, P.L. 93-148, 87 Stat. 555 (1973) on Article IV of the Neutrality Treaty. The Resolution and the Treaty are concerned with different matters. The Treaty states the right of the United States to act under international law. Article IV provides that the "United States and 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. . ." The article leaves to the United States the determination of what steps it will take in any particular situation to maintain the Canal's neutrality. Under certain circumstances the United States might act against aggression by means of armed force. This is implicit in the Joint Statement of Understanding of October 14, 1977, 13 Weekly Comp. Pres. Doc. 1547. The War Powers Resolution deals with domestic law. A treaty cannot, of course, confer power on any branch of Government free from the restraints of the Constitution. Reid v. Covert, 354 U.S. 1, 16 (1957). Any action the United States takes must therefore be in accordance with our constitutional processes. The Joint Statement specifically affirms this. Thus, one must look to the Constitution and applicable law, including the War Powers Resolution, to determine the power of the Executive to act pursuant to the treaty. Consistent with Section 8(a) (2) of the War Powers Resolution, the authority to use armed force would come from these sources rather than from the treaty. We understand that the Legal Adviser of the State Department will furnish a separate letter to the Committee on this issue because of its importance. 7. Senator Baker asked in his letter whether the Senate was being asked to give its advice and consent to ratification of the Agreements in Implementation of Articles III and IV of the Panama Canal Treaty. We understand that the State Department has prepared a separate letter on this question and we concur with their conclusion. That letter points out that the President's Message seeks the advice and consent of the Senate in the Constitutional sense only on the Panama Canal Treaty and the Neutrality Treaty. 13 Weekly Comp. Pres. Doc. 1379. Nevertheless, as Senator Baker's letter suggests, the Senate may, of course, consider the implementing agreements in deciding whether to give its advice and consent to the treaties. They were included with the Letter of Submittal of the Secretary of the State for this purpose. The agreements will not take effect unless the Treaty comes into force. 8. Questions were posed during the hearing by Senator Baker, later clarified in his letter, concerning the relationship between the Neutrality Treaty and various other international agreements. These questions must be examined in the light of the unique situation from which the proposed treaties derive. Since the early part of this century, the United States has operated, maintained, and defended the Panama Canal pursuant to an extensive grant of rights under the 1903 Treaty with Panama. Isthmian Canal Convention ("1903 Treaty"), 33 Stat. 2234. The United States has been able to exercise rights in the Canal Zone comparable to those which it could "exercise if it were the sovereign of the territory." Art. III, 1903 Treaty. From the beginning, however, the United States has also been committed by treaty to the proposition that the Canal "shall be neutral in perpetuity." Art. XVIII, 1903 Treaty; Hay-Pauncefote Treaty with the United Kingdom, Art. III, 32 Stat. 1903. This commitment is substantially equivalent to that to which Panama and the United States have agreed under the proposed treaties. Under the 1903 Treaty, the United States has ample authority to take necessary action, including the use or armed force, to carry out its responsibility for maintaining the neutrality of the Canal. Arts. III and XXIII, 1903 Treaty. The United States and the Republic of Panama have decided to replace the existing treaty arrangements with new agreements which both parties consider to be far more satisfactory to their interests. These new arrangements carry over certain of the existing rights and obligations of the Parties. Under the new arrangements the United States will continue to have responsibility for operation and maintenance of the Canal, and primary responsibility for its defense until the year 2000. Articles III and IV, Panama Canal Treaty. Thereafter, the United States will continue to have responsibility, along with Panama, for maintaining the neutrality of the Canal. The United States would be legally entitled to take measures, including the use of force, for purposes of maintaining the neutrality of the Panama Canal. Art. IV, Neutrality Treaty, Joint Statement of October 14, 1977, 13 Weekly Comp. Pres. Doc. 1547. Thus, the issue raised by the questions posed is whether the Charter of the United Nations and other international legal commitments would preclude the United States and the Republic of Panama from entering into mutually satisfactory treaty arrangements which have the characteristic of continuing some of the existing rights and responsibilities of the two Parties while terminating or altering others. The United Nations Charter, 59 Stat. 1031, the OAS Charter, 2 UST 2394, and the Rio Treaty (Inter-American Treaty of Reciprocal Assistance), 62 Stat. 1681, all use different words but are directed to common policies-the protection of the territorial integrity and political independence of states from threats or force by other states. If one examines the provisions of these instruments cited in Senator Baker's letter we see that the proposed treaties are consistent with our other international legal obligations. In the case of the U.N. Charter, this takes on particular importance since the U.N. Charter includes a "supremacy clause" which provides that Charter obligations prevail over any other international agreements (Art. 103). The substantive provision in the U.N. Charter cited by Senator Baker bars 96-949-77—22 "the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations." Art. 2(4). The proposed treaties contemplate the possible use of armed force but not for any purpose forbidden by the Charter. Indeed, the agreed understanding of the treaty clearly had this problem in mind. Thus the Joint Declaraton of October 14, 1977, affirms the right of the United States to "defend the Canal against any threat to the regime of neutrality," and to "have the right to act against any aggression or threat directed against the Canal or against the peaceful transit of vessels through the Canal." The Joint Statement then emphasizes that the exercise of these rights would be consistent with the Charter : "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." A legitimate exercise of rights under the Neutrality Treaty by the United States would not, either in intent or in fact, be directed against the territorial integrity or political independence of Panama. No question of detaching territory from the sovereignty or jurisdiction of Panama would arise. Nor would the political independence of Panama be violated by measures calculated to uphold a commitment to the maintenance of the Canal's neutrality which Panama has freely assumed. A use of force in these circumstances would not be directed against the form or character or composition of the Government of Panama or any other aspect of its political independence; it would be solely directed and proportionately crafted to maintain the neutrality of the Canal. Such a use of force in support of the Canal's neutrality would be consistent with the purpose of the United Nations. The OAS Charter, Article 18, lends itself to a similar analysis. It prevents states from intervening "in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements." Action conforming with the proposed treaty would not be interference in the internal affairs of Panama because being the subject of a treaty obligation, the matters embraced by the Neutrality Treaty are not the internal affairs of either State party to that treaty. Nor would action in implementation of Article IV be an intervention in Panama's external affairs; it would relate to Panama's external affairs in that action would be based on an international obligation of Panama. It would not, however, be "intervention" any more than reliance upon and implementation of a treaty right by one State and invocation of the correspodning treaty obligation of another ever is "intervention." Equally, performance of Article IV of the Neutrality Treaty would not be directed against the "personality of [Panama] or against its political, economic and cultural elements," but rather toward maintenance of the neutrality of the Canal. No additional difficulties are presented by Article I of the Rio Treaty which commits the Contracting States not to resort to the threat or use of force in any manner inconsistent with the provisions of the UN Charter or the Rio Treaty. We do not read the latter, whose basic purpose is mutual assistance and common defense, as being inconsistent with the rights of the United States under the Neutrality Treaty. Senator Baker asks how rights under the Treaties would be affected by events which took place in Cyprus in 1964 when the Turkish government took certain action based on the treaty of Guarantee between the United Kingdom, Greece and Turkey. 382 UNTS 4. The Treaty of Guarantee permitted action by three outside states to preserve the constitutional and political structure of Cyprus. Whatever the merits of the claims in Cyprus, the Panama Canal Treaties clearly do not involve a guarantee of the political and constitutional structure of Panama. We do not therefore think that the Cyprus problem is relevant to the proposed Panama treaties. Another historic precedent, which Senator Griffin asked us to discuss, was the 1956 Suez Canal experience. The British and French took military action in 1956 to seize the Canal following nationalization of the Suez Canal Company by Egypt. Subsequently, the United States protested the action by the French and British at the United Nations. It was suggested at the hearing that the British had stronger treaty rights at Suez than the United States would have under the Neutrality Treaty. However, analysis of the legal situation shows the case to be the reverse. By the time of the Suez intervention Britain had withdrawn from Egypt and agreed to uphold the Treaty of Constantinople. See Q. Wright, "Intervention, 1956," 51 Am. J. Int'l L. 257, 263 (1957); Agreement between Egypt and the United Kingdom, 210 UNTS 3. The Treaty of Constantinople between Turkey and eight other states, including Great Britain and France, placed the right and duty to "take the proper steps to insure the protection and free use of the canal" solely on Turkey and Egypt. Other parties merely were guaranteed use of the canal subject to the duty "not to interfere in any way with the security of the canal." Articles 1, 2, 8-1. 3 Am. J. Int'l L. Supp. 123. Although Britain had defense rights in case of an armed attack by an outside power, the United Kingdom claimed no treaty rights for its intervention during the Suez crises. H. Thomas, "Suez" 39, 40, 139 (Harper & Row, 1966). Thus, the British legal position in 1956 cannot be compared with the position of the United States under the proposed treaties. Lastly, we were asked by Senator Baker about Art. 51 of the UN Charter, its effect on Article IV of the Neutrality Treaty and whether it is a precondition on United States action. Article 51 provides that nothing in the UN Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a UN member until the Security Council has taken the measures necessary to maintain international peace and security. Thus, action by the United States in defense of its rights is not subject to preconditions and the United States may act until the Security Council has taken necessary measures to maintain peace. See D. W. Bowett, "Self-Defence in International Law" 197 (1958, Manchester University Press). Measures taken by the United States to protect its rights recognized under Article 51 shall be reported to the Security Council. The UN and OAS Charters and the Rio Pact are all based on the principle of peaceful settlement of disputes. See UN Charter, Art. 33, OAS Charter, Art. 23, 24 and 25 and Rio Pact, Arts. 2 and 5. These obligations apply as much today as they would to the regime to be established under the proposed treaties as well as to any dispute that the United States may have with any state. They do not, however, prejudice the rights of the United States necessary to maintain the neutrality of the Canal. JOHN M. HARMON, Assistant Attorney General, Office of Legal Counsel. U.S. SENATE, Committee on Governmental Affairs, Hon. WILLIAM J. JORDEN, U.S. Ambassador to Panama, Panama, Panama. DEAR AMBASSADOR JORDEN: We would appreciate your assistance in having the enclosed question from Senator Percy answered fully for the record of the Senate Foreign Relations Committee hearing on the proposed Panama Canal Treaties. Thank you very much. ALISON ROSENBERG, Legislative Assistant in Foreign Affairs 1. Many opponents of a new treaty with Panama fear that it will enhance the possibility for increased Soviet and Cuban influence in Panama which will be inimical to our interests in the area. (a) What exactly is the relationship between Panama and each of these countries? (b) What has been the reaction to the treaties by these countries? [As of the date of publication, the information referred to had not been received.] |