Digest of United States Practice in International Law

3. United States employees hired after entry into force will be rotated at a maximum of every 5 years, with certain exceptions for sound administrative reasons.

4. The United States will provide an early retirement program for persons employed by the Panama Canal Company or Canal Zone Government at the time of entry into force.

5. Persons displaced from their employment as a result of the implementation of the Treaty will to the maximum extent possible be placed in appropriate United States Government jobs in accordance with United States Civil Service regulations.

6. Employees will have the right of collective bargaining. Employee unions may affiliate with international labor organizations. Article X.

(M) Environment. The two Parties commit themselves to implement the Treaty in a manner consistent with the protection of the natural environment. A Joint Commission on the Environment with equal representation from both countries shall periodically review the implementation of the Treaty and shall make recommendations to the two Governments concerning ways to avoid or to mitigate adverse environmental impacts. Article VI.

(N) Sea-Level Canal. The two Parties agree to study jointly the feasibility of a sea-level canal, and to enter into negotiations for its construction in the event that it is determined that such a facility is necessary. Panama agrees that, during the period of the Treaty, no new Canal shall be constructed in its territory without the consent of the United States. In return, the United States agrees not to negotiate for the right to construct an interoceanic canal on any other Western Hemisphere route during the life of the Treaty. The United States has the right under the Treaty to add a third lane of locks to the existing Panama Canal. The United States shall not use nuclear excavation techniques without the prior agreement of the Republic of Panama. Article XII. However, it should also be noted that the United States has no intention of using nuclear explosions for excavation at any time or in any place.

(0) Property Transfer. Upon entry into force of the Treaty, the United States transfers to Panama all right, title and interest which it may have in real property and non-removable improvements located in areas not reserved for United States use under the Treaty. except for property made available for United States use outside such areas. Title to housing owned by the Panama Canal Company is transferred upon entry into force of the Treaty, but the United States retains the use of such housing as may be necessary to accommodate its United States citizen employees.

Upon termination of the Treaty, Panama will assume total responsibility for the Panama Canal, which shall be turned over in operating condition free of liens and debts. Real property, non-removable improvements and equipment related to operation of the Canal are transferred to Panama at that time. Article XIII (1)–(3).

(P) Payments to Panama. Panama is to receive payments to be derived from Canal revenues as "a just and equitable return on the national resources which it has dedicated to” the Panama Canal. The amounts are:

a. a share of tolls amounting to 30 cents per Panama Canal ton of shipping transiting the Canal;

b. a fixed amount or $10 million per year; and

c. an additional sum up to $10 million per year if the operating revenues yield a surplus over expenditures (including other payments made to Panama under the Treaty). Article XIII (4). The Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal

The Neutrality Treaty enters into force simultaneously with the Panama Canal Treaty but has no termination date. It establishes a permanent regime of neutrality "in order that both in time of peace and in time of war [the Canal] shall remain secure and open to peaceful transit by the vessels of all nations on terms of entire equality, so that there will be no discrimination against any nation, or its citizens or subjects, concerning the conditions or charges of transit, or for any other reason."

After the termination of the Panama Canal Treaty, no nation other than the Republic of Panama may operate the Canal or maintain military installations within Panama's territory. Article V.

Both Panama and the United States "agree to maintain the regime of neutrality established in [the] Treaty, which shall be maintained in order that the Canal shall remain permanently neutral, notwithstanding the termination of any other treaties" between the two countries. Article IV.

The same regime of neutrality is to apply to any other international waterway that may be built in Panama. Article I.

The specific rules of neutrality enumerated in the Treaty include stipulations for the efficient operation of the Canal, the provision of ancillary services necessary for transit, the levying of tolls and other charges which shall be "just, equitable and reasonable," and the requirement that vessels may be requested to establish financial responsibility. Article III.

War and auxiliary vessels of all nations shall be entitled to transit the Canal irrespective of their internal operation, means of propulsion, origin, destination or armament without being subjected to inspection, search or surveillance. Article III (e). In recognition of their important contributions to the "constructionprotection and defense of the Canal", such vessels of the United States and of the Republic of Panama shall be entitled to transit the Canal expeditiously. Article VI.

The United States, while it is responsible for the operation of the Canal, may continue to provide Colombia with toll free transit for troops, vessels, and materials of war. After the expiration of the Panama Canal Treaty, the Republic of Panama may provide the Republic of Colombia and the Republic of Costa Rica with the right of toll free transit. Article VI (2).

The Treaty provides for accession by all states to the Protocol whereby the signatories would adhere to the objectives of the Neutrality Treaty and agree to respect the regime of neutrality. Article

VII, Protocol to the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal.

S. Ex. N, 95th Cong., 1st Sess, III, V-VII, 1–8.

For the Section-by-Section Analysis of the Neutrality Treaty, the Panama Canal Treaty, and the agreements implementing arts. III and IV of the Panama Canal Treaty, see S. Rept. No. 95-12, 95th Cong., 2d Sess., pp. 127-171.

Subsequent to a meeting in Washington, D.C. on October 14, 1977, between President Carter and General Torrijos, the White House issued a Statement of Understanding with regard to the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal signed on September 7, 1977. The Statement of Understanding, which was also issued by the Government of Panama on October 18, 1977, deals with the rights of the parties to act against any aggression or threat directed against the Canal, nonintervention in the internal affairs of Panama, and the expeditious transit of the Canal by vessels of war. The Statement of Understanding appears below:

Under the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal (the Neutrality Treaty), Panama and the United States have the responsibility to assure that the Panama Canal will remain open and secure to ships of all nations. The correct interpretation of this principle is that each of the two countries shall, in accordance with their respective constitutional processes, defend the Canal against any threat to the regime of neutrality, and consequently shall have the right to act against any aggression or threat directed against the Canal or against the peaceful transit of vessels through the Canal.

This does not mean, nor shall it be interpreted as a right of intervention of the United States in the internal affairs of Panama. 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.

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. On November 1, 1977, John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote to Senator John J. Sparkman, Chairman of the Senate Committee on Foreign Relations, to respond to a number of questions posed to Judge Griffin Bell during his testimony before the Committee on Foreign Relations concerning the Panama Canal Treaties. Subsequent to his testimony,

Senator Howard H. Baker, Jr., Minority Leader of the Senate, and Senator Charles H. Percy wrote letters on October 7, 1977, to ask additional questions.

Excerpts from Assistant Attorney General Harmon's letter responding to these questions follow:

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:

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:

257-179 O-79-39

The treatymaking 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 [Robert P.] 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. of 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 De

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