The Chargé in Panama ( Donnelly ) to the Secretary of State
[Received September 21.]
Sir: I have the honor to refer to Article IV of the proposed Panamanian Constitution, a translation of which reads as follows:
“Article 4. The Republic shall be constituted of the continental and insular territory embraced between Colombia and Costa Rica, in accordance with the boundary treaties entered into between Panama and the said republics.
Recognition is hereby accorded to the jurisdictional limitations stipulated in public treaties or international agreements heretofore entered into prior to this constitution.”
The Governor of The Panama Canal9 is of the opinion that as Article IV does not include jurisdictional limitations which may possibly be concluded in public treaties between the two Governments subsequent to the adoption of a new Constitution that it may be in conflict with paragraph 2 of Article II of the General Treaty of Friendship and Cooperation of March 2, 1936. He feels that Article IV of the draft Constitution would render unconstitutional full compliance by the Panamanian Government with the obligation undertaken in Article II of the Treaty of 1936.
I discussed this matter with the Foreign Minister10 on September 11 who stated that in his opinion, both as Foreign Minister and as one of the negotiators of the 1936 Treaty, the new Constitution does not nullify the rights established in Article II of the Treaty. He said that if an emergency should arise in the future and additional land be required for the defense, etc., of The Panama Canal that this could be accomplished in accordance with provisions of the Treaty. The Governor and the Embassy are inclined to share the opinion expressed by the Foreign Minister, however, before dropping the matter, I wish to place the facts before the Department in the event the Department may take a different view.
With respect to Article IX and Article 210 of the proposed Constitution, it is the opinion of the Embassy and the Commanding General of the Panama Canal Department that any doubt as to the jurisdiction of The Panama Canal over the air above the Panama Canal should be clarified by the insertion of a clause similar to the second paragraph of Article IV of the proposed Constitution, which reads as follows:
“Recognition is given to the jurisdictional limitations stipulated in public treaties celebrated prior to this Constitution.”
I also discussed this matter with the Foreign Minister. He holds that in accordance with the conclusions reached at the Pan American Conference in Habana in 192811 and consistent with international law, there can be no doubt as to the jurisdiction of The Panama Canal over the air above The Panama Canal. I said that while I agreed with his views it would be advisable to clarify this point by including an appropriate reference to it in the proposed Constitution. The Minister suggested that I send a memorandum on this subject which I am doing today, copy attached.12