711F.1914/4–747: Telegram
The Acting Secretary of State to the Embassy in Panama
u.s. urgent
139. Urtel 186 Apr 1022 and des 3741 same date;23 see also Embstels 181 Apr 7, 189 Apr 14 and 199 Apr 16.24 Dept views respect Panamanian proposal defense sites agreement are as follows: Theory of “joint authority” running through Panamanian proposal is basically different from our proposal and appears to provide for more Panamanian participation than Dept originally contemplated, as our draft [Page 898] of Mar 13 transmitted your des 3614 Mar 1725 discloses and as Amb and Gen Crittenberger are fully aware (Embstel 202, Apr 19). Panamanian suggestions are based on theory that agreement is of temporary nature and that it and all annexes, including A, may be cancelled even sooner than would presently be contemplated. No specific provision is made for extension agreement although final thought in Article VII implies there may be cause for continued use of defense sites.
In view Panamanian political situation and effect which continued delay in negotiations has on overall relations with Panama, Dept desires to go as far as is practicable in accepting Panamanian suggestions on a relative short term basis rather than continue press for what we consider ideal from our point of view. Accordingly, instead striving in this agreement obtain document long range character Dept will for practical purposes consider time limits stipulated in Annex A (preferably 10 years for all sites except Rio Hato which would be requested on 15-year basis) as “temporary” periods. It is hoped that Panama will agree on 10-year rather than 5-year maximum for sites other than Rio Hato in view our willingness to go along on theory of joint authority. Dept does not consider that 10-year period would obviate temporary nature of agreement as desired by Panama. This in no way precludes possibility negotiating new agreement of more permanent nature upon expiration agreement now being considered.
Dept has come to conclusion that type agreement suggested by Panama, because it is more general in terminology than our proposal, will provide us with a better basis for operating militarily in Panama than would agreement terms of which were too specific.
Dept considers most important sentence in Panamanian proposal to be that in Article III which reads “The two Governments will determine through agreement the means by which this joint authority will be exercised”. Dept interprets this sentence as providing for not one exchange of notes but for continuing exchanges when necessary during the life of the agreement if such are needed to establish definitely that matters of military nature or involving exercise of command remain exclusive responsibility of military authorities of US. Dept believes that this sentence also provides means for establishing that actual authority for determining when a site is no longer needed (see Article VI below) will be prerogative our military authorities. Also it provides that authority for criminal jurisdiction which had been established in last two sentences of our Article II [Page 899] (draft of Mar 13 referred to above) but which Panamanian proposal omits could be established under the provision of Article III. However, Dept suggests that there be added to sentence under reference the following words: “such accords being an integral part of this agreement.”
Our views with respect to the specific articles of the Panamanian proposal are as follows:
Preamble. Acceptable, if the expression “of the Republic and of the entire hemisphere” is omitted on grounds that subsequent paragraphs of agreement refer exclusively to defense of Canal. Since agreement will be registered with UN, inclusion of this expression might open way for multilateral rather than strictly bilateral interest which is intent of document.
Article I. Acceptable.
Article II. Acceptable.
Article III. Acceptable if the expression “such accords being an integral part of this agreement” is added to the last sentence and provided (as explained above) exchanges of notes establish our exclusive authority in all military matters pertaining to defense of Canal, the practical necessity for determination by us when a site is no longer needed, possibility of extending periods of use of sites or of negotiating new agreement on expiration arrangement under negotiation, and our authority for criminal jurisdiction as expressed in Article II our draft (Mar 13). These notes would of course be exchanged simultaneously with signature master agreement and would bear same date.
Article IV. Acceptable, if authority for criminal jurisdiction is, agreed to by Panama in form indicated in previous paragraph.
Article V. Acceptable, provided first paragraph begins “Subject to its constitutional procedures with respect to appropriations the Government of the United States will pay to the Government of Panama on the first day of February of each year” and provided there is added to second paragraph after word “exist” the following: “thereon, saving the United States harmless from all claims arising therefrom or incident thereto”.
Article VI. Acceptable, if specific notes are exchanged under Article III to insure that authority for determining discontinuance of site use remains with US officials and that their notification will be binding on the joint representatives.
Article VII. Acceptable, if provision is made for possibility of extending periods for use of sites or negotiating new agreement as discussed under Article III above.
Article VIII. Acceptable, if there is added to end of second paragraph after words “United States”, the phrase “or in the Republic [Page 900] of Panama”. It is inconceivable that Panama would expect defense sites personnel to pay customs duties or local taxes not imposed on local citizens with respect to merchandise or articles produced in Panama. Such expectation on the part of Panama would be entirely inconsistent with spirit of 1936 Treaty or this agreement. In addition, to cover possible future needs for importation of foodstuffs and other necessities from other countries, the following should be added to end of second sentence: “except for designated countries and specified articles which may be agreed on from time to time by the joint representatives”.
Article IX. Acceptable, provided clause reading “but its operation will terminate in any case on the expiration of the greatest of said periods” is eliminated. Without this elimination Article IX would be inconsistent with revision suggested for Article VII.
Article X. First paragraph not acceptable since US Senate criticized Dept for terminology in 1942 agreement which recognized need for submission to National Assembly of Panama but which made no provision for consideration by our Senate. Accordingly, phraseology suggested in Article IX of enclosures to despatch 3702 of Apr 226 is preferable. It reads as follows: “This agreement will enter into effect upon the signature of the representatives of the Republic of Panama and of the United States of America duly and legally authorized”. This language leaves question of submission to National Assembly or to Congress to discretion of respective negotiating powers.
The foregoing is submitted for your consideration and discussion with Gen Crittenberger. Dept agrees with Amb’s recommendation that Panamanian draft be used and that appropriate changes be made to meet important objections (last sentence Embstel 202, Apr 19).
Revised proposal should be presented formally soonest possible to FornMin with statement that War and State Depts are becoming increasingly concerned over fact that uncertainty surrounding defense sites matter has reached US Congress which may become less sympathetic to Panama if this issue is not settled.
In summary Dept reiterates its position that Panamanian draft is acceptable as master document only provided accompanying exchanges of notes under Art III obtain for military authorities all essential protection of exercise of command and other necessary rights and authority.
Our formal proposal to Panama which would be master agreement accompanied by all essential exchanges of notes should be presented by official note.
[Page 901]We of course assume that you and Gen Crittenberger will collaborate in drafting notes.27 Until these are ready no approach should be made to FonMin in response its latest draft.