13. Action Memorandum From the Assistant Secretary of State for Inter-American Affairs (Kubisch) to Secretary of State Rogers 1

Panama—Reply to Foreign Minister Tack’s Letter of May 21

The May 21 letter Foreign Minister Tack delivered to you in Buenos Aires (Tab A)2 is conciliatory in tone and reflects Panama’s continuing desire to reach new arrangements with respect to the canal. Tack regards as an essential next step agreement in principle between our two governments regarding the main substantive content of a new treaty and proposes eight such principles. In this respect Tack’s letter appears to be an effort to implement General Torrijos’ position that high-level agreement in principle should be reached between the two governments, after which treaty negotiators would “flesh out” the agreement (Torrijos at one time seemed to envisage personally reaching such an agreement with President Nixon).

Tack sent to Ambassador Anderson a letter dated May 7 which is generally similar, but less specific with respect to the question of principles (Tab B).3

Although the level of generalization probably required to reach agreement in principle with the Panamanians will obscure many important and difficult-to-resolve issues, we believe we should, nevertheless, seek to accommodate Panama as a means of advancing the negotiations, in light of the considerable importance Panama apparently attaches to proceeding in this manner. Accordingly, I have attached for your approval a modified version of Tack’s eight principles, retaining as much as possible of the original text, which the Departments of State and Defense, as well as the U.S. negotiators would accept (Tab C). We would expect the U.S. negotiators to seek Panamanian acquiescence in the changes we have proposed.

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There is also attached for your approval a proposed reply from you to Foreign Minister Tack indicating your willingness to adopt the procedure suggested in his letter to you (Tab D).

Recommendations:

1. That you approve the eight principles proposed by Tack, as modified (Tab C).4

2. That you sign the letter to Foreign Minister Tack (Tab D).5

Tab A

Translation of Telegram 1742 From the Embassy in Jamaica to the Department of State6

SUBJECT

  • Sec Visit LA—Bilateral with Fon.Min. Tack

REFERENCE

  • Buenos Aires 3767

1. Following is text of letter dated May 21 handed to Secretary by Tack during bilateral discussion May 24:

Mr. Secretary:

I have the honor to address Your Excellency in relation to the process of negotiations between our two countries on the conclusion of a new treaty on the interoceanic canal that operates in Panamanian territory. Your Excellency will recall that those negotiations were renewed some time after the talk we had on July 26, 1970, during the Special Meeting of the General Assembly of the Organization of American States in Washington, D.C.

As you know, after some months of discussions by the negotiating missions, your Government’s mission prepared a series of drafts in which it sought to reduce to treaty terms the subjects that had been discussed. On December 13, 1971, the United States representatives [Page 37] also submitted a memorandum that classified those subjects under various headings and, according to their judgment of the matter, set forth the positions of each country.

Later my Government stated that the positions of the United States of America as set forth in both the drafts and the memorandum were unacceptable to my country and it gave the pertinent reasons, in writing and during the visit to Panama of Ambassador David A. Ward and other United States Government officials in the months of February and June 1972.

On October 5, 1972, His Excellency Robert B. Anderson, Special Representative of the United States for Interoceanic Canal Negotiations, sent me a note in which he referred to the state of the negotiations and expressed certain concepts concerning the matters under discussion.7 I replied with a note dated October 26, 1972, in which I referred to the points made by Mr. Anderson and reiterated my country’s basic positions. At the same time I invited the United States delegation to hold meetings in this city with the Panamanian representatives, and announced that the latter had precise instructions on the questions they were to set forth.

Early in December 1972 Ambassadors Robert B. Anderson, David A. Ward, and John C. Mundt arrived in Panama, accompanied by Messrs. John P. Sheffey and Morey Bell, in order to meet with the Panamanian delegation. On December 4, 1972, in one of the rooms of the Ministry of Foreign Affairs, I handed to Mr. Anderson the document entitled “Panama’s Basic Positions on the Principal Subjects in the Negotiations on the New Canal Treaty,” dated December 4, 1972.8

In reply to that document I received, through the Embassy of the United States of America in Panama, a new communication from Ambassador Robert B. Anderson, dated at the Department of State, Washington, D.C., February 23, 1973.9 I replied to that note from Ambassador Anderson by means of my own note dated May 7, 1973, a copy of which I attach for Your Excellency.

However, a careful reading of Ambassador Anderson’s note had led me to decide to address Your Excellency, as I am now doing, because I believe that it may be desirable to do so in order to accelerate the later course of the present negotiations.

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To that end I want on this occasion, Mr. Secretary, to reiterate my country’s fundamental criterion in this very vital matter. The negotiations cannot reach their conclusion and fulfill their purpose if they do not truly result in the elimination of the causes of conflict that have so seriously affected relations between our two countries through more than seven decades. Those causes of conflict can be eliminated only by making radical changes in the system that today governs the administration, maintenance, and operation of the Canal, a system that constitutes, as has been said so many times, a colonial enclave in the midst of the territory of the Republic of Panama, thereby imposing untenable jurisdictional limitations on my country’s independence and on the full exercise of its sovereignty over all of the territory that belongs to it.

The elimination of those causes of conflict requires, first [of] all, an express declaration of abrogation of the Treaty of 1903 and of all the other treaties and instruments of any kind whatever related thereto. It is true that the United States has stated in official documents its agreement concerning that abrogation, but it is also true that the abrogation would not have full effect if a new treaty were to contain provisions that in any form or degree limited, confused, or obstructed the return of the portion of Panamanian territory known as the Canal Zone to the full jurisdiction of the Republic of Panama. Furthermore, we consider it just and equitable that in the new treaty, as expressed by your Government in the note signed by Ambassador Anderson on October 5, 1972, the bases should be laid for the Republic of Panama to assume in due course full responsibility for the operation of the interoceanic waterway.

Mr. Secretary, the Panamanian Government considers that the root of the problem in advancing the negotiations lies in the need to clarify in advance a point that is fundamental and decisive: Is the interoceanic canal, which is operated, maintained, and protected by the Government of the United States, functioning in territory that is an integral part of the Republic of Panama, or does the United States consider that the territory where the canal is located should be severed from the effective sovereignty and full jurisdiction of the Republic of Panama?

Unquestionably, unless there is a prior clear and precise agreement on this point, it will be very difficult for negotiations to advance. To Panama it is very clear that the canal is operating in Panamanian territory, and my country cannot permit the limitations that the United States has imposed on the exercise of its effective sovereignty in and full jurisdiction over the Canal Zone to continue much longer. For the sake of reaching a negotiated settlement, my Government has agreed to a transition period so that the Canal Zone may be returned completely to the effective sovereignty of the Panamanian State.

The United States negotiators appeared to accept this Panamanian position when, for example, Ambassador Anderson affirmed in his [Page 39] latest note10 that the United States has already proposed wide-sweeping changes, among which he mentions “the adoption of measures which would permit the cultural, social, and economic integration of the Canal Zone with Panama and the end of the Zone as a separate area under United States jurisdiction.” However, that language proves ambiguous [words missing] political integration of the Zone to Panama. And further on in the same note, he says: “The United States is prepared to relinquish all significant governmental functions within a number of years which we can no doubt agree upon. Some would be relinquished immediately, others at various times that we can discuss. Minor rights which are inseparable from operational responsibilities should be retained.” (Underlining is mine).11

It is here, Mr. Secretary, in this ambiguity, that the root of the problem lies, and therefore, my country cannot agree to the proposals formulated by the United States, much less in the form in which they were stated by the United States delegation in the 1971 drafts.

I wish to point out that Ambassador Anderson states in the above-mentioned communications certain concepts that appear to be close to the Panamanian positions. However, his statements are nearly always general, and part of the difficulty lies in the fact that in the course of the negotiations, when an effort is made to develop those general statements into contractual stipulations, the proposals made by the United States Ambassadors distort the principles that they themselves have stated, so that, instead of settling the situation that both countries are committed to eliminate, conditions for subsequent differences and conflicts are established.

I also wish to tell you once more, Mr. Secretary, that my Government reiterates its desire to reach agreement with the Government of the United States on the adoption of a just and equitable treaty that will put an end to the causes of conflict between our two countries. The problem of the Panama Canal is a matter of special concern to the nations of this Hemisphere, which, as the Secretary General of the United Nations has said, “awaits a solution that can only be based on respect for law and a search for justice.” “Any solution,” in the opinion of that distinguished official of the world organization, “will have to take into account the basic principles set forth in the Charter, such as territorial integrity, sovereign equality, and the obligation to settle all international disputes by pacific means, as well as the principle that has now become a generally accepted one, that is to say, that every [Page 40] State has the right to exploit fully and on its own account all its natural possibilities.”

Like the other States of Latin America and the rest of the world, Panama wishes to have the unequivocal right to assume its responsibilities for its own ideas, initiatives, and actions. My small country also has a very clear idea of its own national identity. But those responsibilities and that national identity cannot be fully realized as long as an important part of our territory continues to be subject to jurisdictional limitations.

President Nixon set forth the five basic principles of United States policy toward Latin America in October 1969 and reaffirmed them in his foreign policy report to the United States Congress on May 3, 1973.12 The second of those five principles establishes the following: respect for national identity and national dignity.

Also, in that same report, President Nixon expressed the following concepts with respect to the question of the Panama Canal:

“Another important unresolved problem concerns the Panama Canal and the surrounding Zone. U.S. operation of the Canal and our presence in Panama are governed by the terms of a treaty drafted in 1903. The world has changed radically during the 70 years this treaty has been in effect. Latin America has changed. Panama has changed. And the terms of our relationship should reflect those changes in a reasonable way.

“For the past nine years, efforts to work out a new treaty acceptable to both parties have failed. That failure has put considerable strain on our relations with Panama. It is time for both parties to take a fresh look at this problem and to develop a new relationship between us—one that will guarantee continued effective operation of the Canal while meeting Panama’s legitimate aspirations.”13

The concepts of the President of the United States certainly reflect a very clear historical awareness of the significance of the profound political, economic, and social changes which characterize the present era.

Within the framework of that philosophy we could make a vigorous effort to establish, in advance, the basic principles which should serve as the foundation for that new just and fair Canal treaty that our two countries agreed to conclude in the Joint Declaration of April 3, 1964, signed under the auspices of the Council of the Organization of Ameri[Page 41]can States acting provisionally as Organ of Consultation.14 The Republic of Panama deems those basic principles to be:

1. The 1903 treaty must be abrogated. The two countries are willing to conclude an entirely new interoceanic canal treaty.

2. The concept of perpetuity is rejected. The new treaty concerning the lock canal shall have a fixed termination date.

3. The exercise of any type of jurisdiction by the United States in Panamanian territory shall quickly cease, at the end of the transition period agreed upon.

4. The so-called Canal Zone shall be returned to full Panamanian jurisdiction. The Republic of Panama, as territorial sovereign, is willing to grant the Government of the United States, for the duration of the new treaty on the interoceanic canal, the right to use the lands and waters proved to be essential for the operation and maintenance of the canal, the transit of ships, and the protection of vital installations.

5. The Republic of Panama shall have a just and equitable share in the benefits, in proportion to the total benefits that the United States and world trade derive from Panama’s geographic location.

6. The activity of the United States Government shall be limited to the administration of transit through the interoceanic waterway. The activities of the United States Government shall be those which have a direct relation to the operation, maintenance, and protection of the Canal, as shall be specified in the treaty.

7. The United States of America shall exercise, in the facilities for protection, such activities as may be expressly stipulated in the treaty, for the duration of the treaty.

8. The Republic of Panama is willing to include in that same treaty provisions authorizing the Government of the United States to construct a sea-level canal along what has been designated Route 14, on the following conditions: (a) The United States will notify Panama of its decision to construct the sea-level canal along Route 14 within a reasonable period to be negotiated, following the entry into force of the new treaty, and if it should fail to do so its right in that respect would lapse; (b) Panama would retain full jurisdiction in the area that would be occupied by the sea-level canal; and (c) with respect to the sea-level canal, the life of the treaty shall have a limited duration, with a specified termination date.

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I would hope, Mr. Secretary, that the United States negotiators might come to Panama as soon as possible, with specific instructions that would make possible the clear determination of those basic principles to which I have referred above, and continue discussions with the Panamanian negotiators, in a definitive effort to agree on a solution to the questions which have so long caused differences in the relations between our two countries.15

I avail myself of the opportunity to renew to Your Excellency the assurances of my highest and most distinguished consideration.

Juan Antonio Tack

Minister of Foreign Affairs

Rogers

Tab C16

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ESSENTIAL PRINCIPLES WHICH WILL SERVE AS A BASIS FOR A NEW CANAL TREATY

(Based on Principles Contained in Tack’s Letter to the Secretary Dated May 21, 1973)

Tack’s Statement of Principles Proposed U.S. Statement of Principles
1. The 1903 treaty must be abrogated. The two countries are willing to conclude an entirely new interoceanic canal treaty. 1. The two countries will conclude an entirely new interoceanic canal treaty, which will abrogate the 1903 treaty.
2. The concept of perpetuity is rejected. The new treaty concerning the lock canal shall have a fixed termination date. 2. The concept of perpetuity will be eliminated. The new treaty concerning the lock canal shall have a fixed termination date.
3. The exercise of any type of jurisdiction by the United States in Panamanian territory shall rapidly cease, at the end of the transition period agreed upon. 3. Termination of U.S. jurisdictional functions in Panamanian territory shall begin promptly, in accordance with terms specified in the new treaty.
4. The so-called Canal Zone shall be returned to full Panamanian jurisdiction. The Republic of Panama, as territorial sovereign, is willing to grant the Government of the United States, for the duration of the new treaty on the interoceanic canal, the right to use the lands and waters proved to be essential for the operation and maintenance of the canal, the transit of ships, and the [Page 44] protection of vital installations. 4. The territory in which the Canal is situated shall be returned to the jurisdiction of the Republic of Panama. The Republic of Panama, as territorial sovereign, shall grant the Government of the United States for the duration of the new treaty on the interoceanic canal, the rights, privileges and immunities necessary to regulate the passage of traffic through the canal and operate, maintain, and protect and defend the canal, and the use of the land, waters and airspace required for these purposes.
5. The Republic of Panama shall have a just and equitable share in the benefits, in proportion to the total benefits that the United States and world trade derive from Panama’s geographic location. 5. The Republic of Panama shall have a just and equitable share in the economic benefits of the canal operation.
6. The activity of the United States Government shall be limited to the administration of transit through the interoceanic waterway. The activities of the United States Government shall be those which have a direct relation to the operation, maintenance, and protection of the canal, as shall be specified in the treaty. 6. The Treaty shall make provision for supporting services and facilities which may be maintained by the United States for the purpose of the operation, maintenance, protection and defense of the canal.
7. The United States of America shall exercise, in the facilities for protection, such activities as may be expressly stipulated in the treaty, for duration of the treaty. 7. The U.S. shall exercise defense responsibilities and activities as provided in the treaty.
8. The Republic of Panama is willing to include in that same treaty provisions authorizing the Government of the United States to construct a sea-level canal along what has been designated Route 14, on the following conditions: (a) the United States will notify Panama of its decision to construct the sea-level canal along Route 14 within a reasonable period to be negotiated, following the entry into force of the new [Page 45] treaty, and if it should fail to do so its right in that respect would lapse; (b) Panama would retain full jurisdiction in the area that would be occupied by the sea-level canal; and (c) with respect to the sea-level canal, the life of the treaty shall have a limited duration, with a specified termination date. 8. The treaty shall make provision authorizing the Government of the United States to construct additional locks and channels for the existing canal or to construct a sea-level canal on a mutually agreed route on the following conditions: (a) The United States will notify Panama of its decision to construct additional locks and channels for the existing canal or to construct the sea-level canal within a reasonable period following the entry into force of the new treaty, and if it should fail to do so its rights in these respects would lapse; (b) Panama would retain jurisdiction in the area that would be occupied by the augmented lock canal or the sea-level canal, but would grant to the United States with respect to the sea-level canal the same rights specified in Principle 4 with respect to the interoceanic canal and (c) in the event of the construction of the new locks or the sea-level canal, the life of the treaty shall be extended to a new specified termination date to be agreed upon in the new treaty.
  1. Source: National Archives, RG 59, Central Files 1970–73, POL PAN–US. Confidential. Drafted by Hurwitch and Bell; cleared by Koren, Ward, and in L/ARA. Sent through Rush. In the upper right-hand margin, Rogers wrote: “I’ll speak to Mr. Kubisch about this. The letter should refer to a new negotiating team with Ellsworth Bunker in charge. WPM.”
  2. Tabs A–D are not attached, but are attached to a copy of Kubisch’s memorandum in the Washington National Records Center, RG 330, OSD Files, FRC 330–80–0044, Negotiations—Panama and Panama Canal Zone—Mar 1973–Dec 1973. For an account of Tack’s meeting with Rogers, see Document 10.
  3. In telegram 95779 to Panama City, May 18, the Department transmitted the Spanish text of Tack’s letter. (National Archives, RG 59, Central Files 1970–73, POL PAN–US)
  4. Rogers initialed the approve option under this recommendation.
  5. Rogers did not reply until August; see Document 16.
  6. Source: Washington National Records Center, RG 330, OSD Files, FRC 330–80–0044, Negotiations—Panama and Panama Canal Zone—Mar 1973–Dec 1973. Confidential. The undated translation was done in the Division of Language Services in the Department of State.
  7. In the October 5, 1972, letter to Tack, Anderson expressed concern over progress in the negotiations and wrote: “The United States maintains a flexible and forthcoming posture as to the issues under negotiation.” (National Archives, RG 59, Ambassador Bunker’s Correspondence, Lot 78D300, Box 1, Anderson /De La Ossa/Tack Correspondence)
  8. See footnote 4, Document 2.
  9. See footnote 2, Document 10.
  10. Of February 23.
  11. The underlined text is in italics. The brackets in this paragraph are in the original.
  12. See Public Papers, Nixon, 1970, pp. 135–136, and ibid., 1973 pp. 440–441.
  13. See ibid., p. 443
  14. The Joint Declaration announced the resumption of relations between the United States and Panama and their intention to designate representatives to negotiate causes of conflict between the two countries. For the text, released in English and Spanish, see the Department of State Bulletin, April 27, 1964, p. 655–656.
  15. In telegram 2746 from Panama City, May 22, the Embassy offered an analysis of Tack’s letter: “Foreign Minister’s letter contains no surprises but this is believed be first time negotiating position present GOP has been stated so clearly.” (National Archives, RG 59, Central Foreign Policy File, [no film number])
  16. Source: Washington National Records Center, RG 330, OSD Files, FRC 330–80–0044, Negotiations—Panama and Panama Canal Zone—Mar 1973–Dec 1973. Confidential.