Foreign Relations of the United States, 1969–1976, Volume E–10, Documents on American Republics, 1969–1972

554. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon¹ ²

Washington, September 10, 1971

SUBJECT:

• Panama Canal Treaty Negotiations

In the letter at Tab C Ambassador Anderson asks that you modify his negotiating instructions with respect to duration of a new Panama Canal Treaty. Negotiating instructions were initially set forth in NSDM 115 (Tab G) and required Anderson to seek an open-ended arrangement similar to the present one. He wrote you on July 9 (letter at Tab F) after early negotiating sessions reporting that he did not believe an open-ended treaty was obtainable, and asking that you authorize him to fall back to a treaty of fixed but lengthy duration, whether determined by some formula or embodying a specific termination date.

Rather than grant Ambassador Anderson’s request at once, you asked him to undertake soundings in order to determine:

• —Congressional attitudes towards a fixed-term treaty;
• —the firmness of the Panamanian position that any future treaty must provide for eventual termination.

Ambassador Anderson now reports that:

• —on the basis of consultations with 20 Senators he believes obtaining Congressional acceptance of a fixed-term treaty will be difficult but feasible if the termination date is sufficiently remote and if other treaty provisions are satisfactory.
• —State’s soundings with Panamanian officials have demonstrated that the Panamanians are firm on the duration issue. The Panamanian negotiators have told us that unless progress is made on the duration issue soon the negotiations will be suspended.

Anderson, therefore, repeats his request that you authorize him to fall back to acceptance in principle of a treaty with a formula for termination or failing that with a fixed termination date providing the duration is a long one and the total treaty package is satisfactory to the US.

State concurs with Anderson’s recommendation but goes two steps beyond. In addition to recommending that Anderson be authorized to accept the principle of termination, State:

• —specifies that a draft treaty should provide for a duration of at least 50 years with provision of an extension of 30 to 50 years in the event of expansion of Canal capacity;
• —indicates that any new treaty should provide for future US actions in defense of the right of free transit through the Canal. Because a unilateral Panamanian guarantee on this subject is probably unobtainable, State believes that we should obtain as part of any fixed term treaty a joint US-Panamanian guarantee that upon termination of the treaty the Canal would be open to world shipping without discrimination at reasonable tolls, and that Panama would take no action that would hamper the efficient operation of the waterway.

Defense opposes falling back at this time to a treaty with a termination date on grounds that Congressional approval of a fixed-term treaty is not certain, and that conceding this point is not a sure solution to our various problems with Panama over the Canal. However, Defense acknowledges that it may be necessary eventually to fall back to a termination-type treaty instead of an open-ended one.

I support Ambassador Anderson’s position as amended by State. You decided the basic issue over a year ago in NSDM 64 (Tab H) which indicated that an open-ended treaty was highly desirable, but was not included among the points we consider to be non-negotiable. It is not certain that Ambassador Anderson will be able to negotiate a draft treaty which satisfactory to us in all major respects by virtue of our acceptance of the principle of termination, but it is very probable that no treaty will be obtainable without our acceptance of that principle. The result of the collapse of Canal negotiations at this time would probably be a confrontation with Panama perhaps including violence and a decision by Panama to take the issue to the United Nations. Needless to say, this would be unfortunate, especially in an election year. The objections raised by Defense are primarily tactical and I see no reason to run the above risks for the sake of marginal gains on the tactical plane. If Anderson can obtain a treaty of 50 to 100 years duration with appropriate guarantees, I believe that for all practical purposes this amounts to perpetuity. Defense’s anxiety seems to be based on Panama’s stated goal of a treaty of 20 to 25 years duration, but there is every indication that this goal is merely a negotiating position and that they are in fact willing to accept a much longer period.

In addition, we have held Ambassador Anderson on a very close rein so far. He has taken this well, but he will probably resign as treaty negotiator if you fail to grant his request at this time. His resignation alone could be enough to torpedo the negotiations. Though the results of Congressional soundings were not absolutely clear, they are sufficiently positive to justify a decision on our part to proceed on the basis of a treaty with a termination date.

Attached for your signature at Tab A is a NSDM modifying the US position for the treaty negotiations along the lines recommended by Anderson and State. Also attached for your signature (Tab B) is a letter to Anderson transmitting the NSDM to him and encouraging him to complete the negotiations on a draft treaty in the shortest possible time. The letter has been cleared with Ray Price.

RECOMMENDATIONS:

1. That you sign the NSDM at Tab A.

2. That you sign the letter to Anderson at Tab B.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, NSC Institutional Files (H-Files), Box H–227, NSDM Files, NSDM 131. Secret. Sent for action. A stamped notation on the memorandum indicates the President saw it. Tabs A, E, G, and H are published as Documents 555, 553, 549, and 536 respectively. Tab B, not attached, is a letter from Nixon to Special Representative Anderson, apparently explaining the change in policy. Tabs C, D, and F have not been found. Tab C is an August 20 letter from Anderson to Nixon; Tab D is an August 26 memorandum from Rogers to the President; and Tab F is a July 9 letter from Anderson on Nixon.
2. Kissinger updated President Nixon on Anderson’s most recent reports and advised Nixon to allow Anderson to negotiate a fixed-term Canal treaty with Panama since the collapse of the Canal negotiations would have high political costs for the United States.