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DOCTRINE OF FUNDAMENTAL CHANGE OF CIRCUMSTANCES

It seems to me that the 1903 treaty with Panama is vulnerable to the doctrine of "fundamental change of circumstances” (rebus sic stantibus) found in article 62 of the convention.

In my view, the United Nations Charter contains the overriding statement of international law and policy-despite our occasional irritations over the conduct of members in some organs of the U.N. organization itself and the many failures of members of the world community to give effect to charter precepts. The charter insists upon the “sovereign equality of all its members” (Article 2, paragraph 1) and calls for respect for “the equal rights *** of nations large and small" (Preamble).

I have already mentioned decolonization, well established both in principle and practice by the charter and by the history of this postwar era.

Treaties are the primary source of international law partly because they are drafted in relatively precise terms of legal obligation and, more importantly, because they represent the consent of the sovereign parties who agree to them. We cannot seriously suggest that the 1903 treaty represents the consent of Panama or of its people. It would be accurate to say that if the United States were a party to a treaty which became obnoxious to our public policy and repugnant to our people, we would move to denounce it and relieve ourselves of its burdens.

Article 64 of the Convention on the Law of Treaties states, “if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” Lawyers have debated at considerable length this doctrine of "jus cogens" and the identity of the norms which can be said to be peremptory in character. They are probably few in number. I would suggest to you that, in the modern world, one nation cannot maintain a presence within another nation without the consent of the second nation.

If the situation in Eastern Europe is different, the contrast merely emphasizes the general rule and provides no precedent for the United States. We have withdrawn from valuable bases and installations in Libya, Ethiopia, and Pakistan; we have seen the use of bases in Turkey sharply restricted by that Government; we withdrew our forces from France on the demand of President de Gaulle. I can imagine the astonishment on President de Gaulle's face had I been instructed to tell him that we could not withdraw our forces from France because their presence was covered by an agreement between our two countries.

We know that such bases and personnel as we have in other countries require the consent of the governments concerned and that some of them have charged us very high prices for that consent. The 1903 treaty with Panama is not an adequate substitute for such consent: It is not an agreement which could be negotiated in this latter part of the 20th century. I do not know whether President Theodore Roosevelt was accurately quoted in a remark about Panama:“We wanted it; we took it.”

But let us be under no illusion, an attempt to maintain our position in the Panama Canal Zone on the basis of the 1903 treaty would be

an act of force, as in Eastern Europe. We can choose that course if we are prepared to pay the heavy political, economic, and military costs involved, and the Senate can make that decision.

TREATY OF 1903 TEST IN IJC

In concluding my comment on the status of the 1903 treaty, let ine add that I do not believe that we could afford to allow the validity of that treaty to be tested in the International Court of Justice. I am glad that the treaty has not been pursued in the General Assembly of the United Nations where I would suspect we would be almost alone in the voting. Some of our closest friends would leave us because of considerations of general policy.

When the United Nations Security Council met in Panama in 1973 and had before it a resolution on Panama, hostile to U.S. interests, it was necessary for our representative to exercise a veto, with no member of the council voting with us. There were 13 "yes" votes, the U.K. abstained, and the United States cast the only negative vote. Close friends such as France, Australia, Austria, and Kenya voted against us.

SAFEGUARD U.S. INTERESTS IN PANAMA CANAL

An alternative is to try to safeguard our interests in the Panama Canal by agreement between ourselves and Panama in a modern setting. There are very strong feelings among the people of our two countries, feelings which make it very difficult for governments to find agreement with which all can be satisfied. These feelings will be further acerbated during the present debate in both countries about the new treaties; already what is said in one country is being used to inflame feelings in the other country.

Opponents of these treaties object to our making such arrangements with a dictator. Having been involved with this problem before the present regime in Panama came to power, I would suggest that the more democratic the government in Panama, the more insistent they would be on a prompt and fundamental change in the arrangements regarding the canal.

Our national interest lies in access to and the safety of the Panama Canal itself, not in a continuation of our special position in the zone. I believe that our interest in the canal includes a residual responsibilitv drawn, if you like, from history, to the maritime nations of the world and to certain nations of our own hemisphere for whom the canal is a lifeline.

But surely we should attempt to satisfy these interests by agreement and should seek to engage the friendship and cooperation of the Panamanian Government and people in the decades ahead. We can give ourselves a chance to repair the injuries we have inflicted upon national pride and individual dignity and proceed in the future on the basis that we and the Panamanians need each other in these matters.

We must take into account, however, the possibility that events will not work out as we now hope. Under the new treaties, we shall have 23 years to test the ability of Panama and ourselves to proceed on the

basis of agreement. The responsibilities which we would have until the year 2000 clearly make it possible for us to insure the operation and safety of the canal.

REGIME OF NEUTRALITY RESPONSIBILITIES, INTERPRETATION

Beginning with the year 2000, questions regarding passage and safety of the canal would be governed by the provisions of the Treaty Concerning the Permanent Neutrality of the Operation of the Panama Canal. Under article IV of this treaty, "The United States of America and the Republic of Panama agree to maintain the regime of neutrality established in this treaty."

The joint and several responsibilities of the United States and Panama for that "regime of neutrality” as spelled out in the treaty gives us, in my judgment, all that we need to maintain our essential interests in the matter; namely, passage and security of the canal itself.

I am aware, Mr. Chairman, of the discussion which has occurred about whether article IV of the neutrality treaty is understood in the same way by both ourselves and Panama and that discussions are going on between Senators, the executive branch, and Panama on that point. It would be inappropriate for me to inject myself into those discussions at this point.

I might offer one observation, however, which may be relevant. I hope that we and Panama would not get tangled up with each other over the word "intervention." That is a word which has accumulated many barnacles over the years and carries with it memories which we ought to try to forget. What we are interested in is access to the security of the Panama Canal. Measures to assure its passage and safety do not mean interference in the internal affairs of Panama.

In any event, I do not believe that we should approach such matters in terms of the worst case imaginable but rather through a genuine desire and expectation to work things out on an amicable basis. Providence has not given us the ability to pierce the fog of the future with accuracy and the year 2000 is a long way off.

Perhaps we should not, today, try to answer every problem which might be posed to some future President and Congress. I must confess, however, that article IV of the neutrality treaty played a major role in my own decision to support these two treaties. If, God forbid, it should ever become necessary for a President and a Congress to take strong measures to keep the canal functioning and safe, they would, in my judgment, be in a far stronger position to do so under the treaties of 1977 than under the anachronistic treaty of 1903.

Thus, whether we are thinking of the principles upon which we hope to see a cooperative community of nations move into the future or are thinking about a hardheaded approach to adverse contingencies which may lurk in the future, it seems to me to be to our advantage to give effect to these two new treaties. The consequences of not doing so could be very severe. I see no point in inviting these consequences upon ourselves now when we have a good chance to avoid them altogether.

Thank you, Mr. Chairman.
The CHAIRMAN. Thank you, Mr. Secretary.

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Secretary Kissinger, we will be very glad to hear from you. We have had you before us many times. We are glad to have you again.

We have your paper. You may proceed as you see fit.

STATEMENT OF HON. HENRY KISSINGER, FORMER SECRETARY

OF STATE Mr. KISSINGER. Mr. Chairman and members of the committee, it is a great pleasure for me to appear before this group with which I have spent so many constructive hours, some of which I have very pleasant recollections of, and of others I am sure my recollections will be softened by the passage of time. [Laughter.]

It is also a great privilege for me to appear with my distinguished predecessor, Dean Rusk, among whose many distinctions is the fact that he inaugurated the modern practice of Secretaries of State who speak with an accent. (Laughter.]

The CHAIRMAN. Let me be sure I got that straight.
Which one has the accent?
Mr. KISSINGER. I will let the committee decide.

The CHAIRMAN. I have heard President Carter is the first one in 100 years who spoke without an accent.

Mr. KISSINGER. I said recently I am getting used to an administration in which everybody speaks with an accent. [Laughter.]

I am pleased to have the opportunity to express my views on the proposed treaties with Panama which are before you. Over a period of years I have participated in the negotiations and have given much thought to the question of how we can best assure, in the decades ahead, our interest in the free, neutral, and efficient operation of the Panama Canal.

You have already heard from the Secretaries of State and Defense, from Ambassadors Bunker and Linowitz, from the Joint Chiefs of Staff and other officials of the administration. You have had an opportunity to assess the detailed provisions and background of the two new treaties and the administration's reasons for urging that the Sen. ate advise and consent to ratification. In supporting ratification I want to addrses not the detailed clauses of the agreement but some fundamental issues raised by the treaties.

U.S. FOREIGN POLICY GOALS, RESPONSIBILITIES Our Nation's foreign policy must be based on a conception of enduring national goals and permanent responsibilities, not on the accidents of personality or change for the sake of novelty with the advent of each new Presidential administration. The future well-being and security of this country can never be a partisan issue. They affect every American, and, given our central role, every human being concerned with the preservation and strengthening of the cause of freedom.

Our substantial stake in the Panama Canal is a case in point. The United States has a vital interest in the free, neutral, and efficient operation of the canal. This interest cannot be compromised; we cannot foresee the day when it will be inconsequential.

Up to now this interest has been identified with the precise treaty relationship we established in 1903 under vastly different circum

tances. But four successive Presidents and their Secretaries of State, epresenting both political parties, have been persuaded over a period of 13 years that a new treaty relationship with Panama is more likely o serve the long-term security and foreign policy of the United States; above all, that it would best assure what is the essence of our interest : he efficiency, neutrality, accessibility, and security of the canal. All four Presidents came to the view that the treaty of 1903 no longer adequately assures that interest. The present arrangements of the 1903 creaty include provisions which are no longer essential and which could over time actually make protection of our vital interests more difficult by forcing us into actions increasingly in conflict with our traditional allies in the Western Hemisphere.

U.S. LONG-TERM INTEREST IN CANAL

It is my conviction that the two treaties recently negotiated with Panama do indeed protect our long-term interest in the canal more effectively and under conditions more in keeping with present day realities than is possible under the 1903 treaty.

We must recognize that however we in the United States may view that treaty, the rest of the world and especially the nations in the Western Hemisphere do not regard it as an equitable and freely negotiated agreement. It was reached in ambiguous circumstances and no Panamanian ever signed it. Some even question its legality. To insist on these arrangements would mean that over time we would be compelled to fall back on the use of force as the ultimate basis for our presence. This we should be prepared to do when our vital interests can be defended in no other way. But this is not the case here because the treaties give us a clear, and on balance a better, alternative.

TREATY TERMS TO YEAR 2000 Under the terms of the new Panama Canal treaty, nothing of real significance to us in the existing arrangement for management and of the canal will change during the remainder of this century. The United States will continue to control operation of the canal; U.S. military forces will continue to provide for defense of the canal from within Panamanian territory. At the same time, the new treaty arrangement establishes a cooperative working relationship with Panama which will enhance our ability to insure the canal's security and efficient operation, provide for an orderly transition, and increase Panama's stake in the long term secure and neutral operation of the canal.

NEUTRALITY TREATY PROVISIONS After the year 2000, when management of the canal passes to Panama, article IV of the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal will become controlling. The neutrality treaty not only establishes the legal obligation of both Panama and the United States to maintain a permanently neutral canal: it also defines neutrality clearly in terms of concrete standards for the operation of the canal which both parties are pledged to maintain. Article IV makes the United States a guarantor of that

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