Foreign Relations of the United States, 1977–1980, Volume XXIX, Panama

104. Memorandum From the White House Congressional Liaison Aide (Thomson) to President Carter¹

Washington, September 26, 1977

RE

• Panama Canal Treaties—Strategy

1. SENATE ALTERATIONS OF THE TREATIES

Opponents of the new Canal treaties now know that they are not likely to succeed in winning a simple up-or-down vote on a resolution of advise and consent to ratification of the treaties. Instead, their strategy is to add amendments and reservations to the treaties nullifying their effect and making them unpalatable to Panama.

Last Thursday,² Senator Allen departed from a prepared text he was delivering on the Senate floor to express his hope that the Senate would defeat the treaties by reservation and amendment. The remarks were edited out of the text of his speech as it now appears in the Congressional Record.³

As you may know, fights over Senate alteration of controversial treaties are typical. We have enclosed a Congressional Quarterly summary of Senate consideration of the Treaty of Versailles.⁴ Note that disputes over reservations contributed to defeat of that treaty.

Obviously, Senate alterations of the treaties could be of great benefit if Senators can protect their political flanks by supporting an alteration while still voting in favor of the resolution of advise and consent. However, the process is also our Achilles heel if too many unacceptable reservations and amendments are added. We have begun to devise a strategy that will prepare us to tread the line between disaster and a success that is least harmful for treaty supporters.

2. ALTERNATIVE SENATE PROCEDURES

a) Report Language—the Senate may consent to ratification of a treaty and include its views or interpretations in a committee report accompanying the treaty.

b) “Understandings”, “Interpretations”, or “Declarations”—these terms, used interchangeably, refer to a process whereby the Senate includes in the resolution of consent its interpretation, clarification or explanation of particular provisions.

c) “Reservations”—the Senate may add a reservation to the resolution of consent involving some modification or limitation in U.S. obligations under the treaty.

d) “Amendments”—the Senate may amend the terms of the treaty itself by adding new sections or deleting provisions.

3. DISCUSSION OF ALTERNATIVE SENATE PROCEDURES

The substantive difference between understandings, reservations and amendments is a matter of degree. Reservations and amendments normally will add or delete provisions that are relatively important to the framework of a treaty. Understandings usually add nuances that have a less important impact on the treaties.

However, the procedural and legal differences that flow from these alternative Senate actions are enormous. If a particular Senate action on the Canal treaties is phrased in terms of an “understanding”, then Panama may issue an ambiguous statement or reject the understanding, and the treaty may still be brought into force. The effort would be to postpone questions of interpretation implicit in the understanding until the issue arises.

However, if the Senate action is phrased in terms of a reservation, it is unlikely the treaties may be brought into force without specific Panamanian approval. To make matters worse, Panama’s plebiscite is scheduled for October 23, well before Senate action is likely on the treaties. Consequently, Panama’s constitution may require that reservations adopted by the Senate be approved, if at all, by a second plebiscite.

Formal treaty amendments, if added by the Senate, would have the same impact as reservations. On the other hand, report language, would be the best of all, since it would be similar to legislative history rather than a modification of the text of the agreements.

4. STRATEGY

a) Strong Opposition to Reservations or Amendments—we should strongly oppose reservations or amendments to the treaties. The documents are the results of 13 years of negotiation and represent a delicate compromise between this country and Panama. Reservations and amendments could destroy that compromise. Administration witnesses at the Senate hearings today⁵ have testified to that effect.

COMMENT

b) Silence on the Passibility of Understandings or Report Language—we should not advocate understandings or report language. In response to queries about these procedures, we should neither support nor oppose them conceptually. The Senate will interpret such a response as indicating flexibility. Of course, when Senators offer specific understandings or report language in Committee or on the floor, we should take positions at that time on the issues as they arise.

COMMENT

c) More Extensive Legal Research on Alternatives—the legal department at State has done the preliminary work that has been used as a basis for this memorandum. Much more needs to be done in this area. We have asked them to prepare a more detailed analysis of relevant domestic and international law on the Senate procedures discussed above. After preparation of this analysis, we would like to take 15 minutes of your time to brief you on the results.⁶

COMMENT

d) Listing Possible Reservations, Understandings, etc.—We are reviewing statements made by treaty opponents and listing all of their points of attack. From that list, we will prepare a list of possible Senate alterations and propose a position on each of them.⁷

COMMENT

e) Secret Preparations for Acceptable Compromise—we will be hard-pressed to avoid Senate reservations on the neutrality issue, the sea level canal and other key provisions. Consequently, the State Department should secretly draft acceptable language for compromise reservations and begin secret negotiations with Panama for their approval. If this can be done before the plebiscite, it may be possible for the Panamanians to construct their text of the treaties in such a manner as to avoid a second plebiscite if the Senate approves the compromise reservations.

COMMENT

f) Coordination with Senate Leadership—We must find a way to make our strategy Senator Byrd’s strategy. Obviously, it would be most effective if he, Senator Baker and others were to introduce a package of acceptable compromise reservations that would push the treaties over the top. We are still exploring ways to do this.

COMMENT

1. Source: Carter Library, Office of the Chief of Staff, Hamilton Jordan’s Confidential Files, Box 36, Panama Canal Treaty, 8/77(2). No classification marking. The memorandum was sent through Frank Moore.
2. September 22.
3. For the text of Allen’s speech and discussion afterward, see Congressional Record, vol. 123, part 24, September 21, 1977, to September 28, 1977, pp. 30366–30369.
4. Attached but not printed.
5. See footnote 2, Document 101.
6. Carter wrote in the right margin: “ok.”
7. Carter wrote in the right margin: “ok.”