COLUMN RIGHT/ MARK POWELL : Renegotiate the Giveaway of the Canal : A strong case exists that the treaties violate both U.S. and Panamanian constitutions.

<i> Mark Powell, a former assistant editor of the foreign-affairs quarterly Orbis and writer of McDonnell Douglas training materials for the pre-Gulf War Kuwait Air Force, writes on international affairs</i>

Rep. Philip M. Crane (R-Ill.) has introduced legislation mandating new negotiations with Panama to secure U.S. military base rights after transfer of the Panama Canal and to clarify and solidify U.S. defense rights regarding the canal.

America has had no overseas possession more vital or better paid-for. The 51-mile canal saves a voyage around Cape Horn, cuts at least 8,000 miles off transit between the U.S. coasts and currently can accommodate 92% of ships afloat and 95% of U.S. naval vessels. It handles 65% of U.S. shipping traffic.

In 1977 Jimmy Carter gave it away, over the objections of a majority of the American people, in what many would call the worst treaties an American President ever signed.

A powerful case exists that the treaties violate both the U.S. and Panamanian constitutions as well as international law. First, there really is no treaty, since the two countries simply never agreed on U.S. rights to intervene in the canal’s defense after 1999. The U.S. copy states (in the “DeConcini Reservation”) that the United States retains the ultimate right to intervene; the Panamanian copy (in the “counterreservation”) requires prior Panamanian consent.


The treaties, narrowly ratified by a liberal Senate in 1978, appear to be in violation of three articles of the U.S. Constitution: Article 2 (requiring Senate consent to treaties--the Senate never voted on Panama’s counterreservation), Article 4 (requiring the House to approve changes in U.S. territory--the House never voted) and Article 6 (recognizing treaties as the supreme law of the land--the 1903 treaty ceding the Canal Zone to the United States was never annulled).

Panama’s constitution, in articles 163 and 274 respectively, requires presidential approval of treaties and a plebiscite on any post-signing changes such as those made by the U.S. Senate before ratification. Gen. Omar Torrijos was dictator, not president, and no plebiscite occurred. Article 20.2 of the Vienna Convention requires treaty partners to agree on a single text for a valid international agreement to exist. We haven’t.

Treaty opponents wield historical and politico-economic arguments as well as legal ones. Thousands of Americans died of malaria and industrial mishaps building the canal. For the right to build and own it, America paid more than 10 times what it paid for Alaska. Since 1977 the United States has invested more than $1 billion to maintain and upgrade the canal. Few believe that Panama will be able by 1999 to manage the canal and defend it from conceivable threats. Twenty months after the ouster of Gen. Manuel A. Noriega, the country is still endemically corrupt, an economic basket case and militarily impotent. Panama’s own port facilities and railroads have decayed severely from administrative and engineering incompetence and sheer neglect. Vice President Ricardo Arias Calderon said, “Panama will never be able to defend the canal alone.” President Guillermo Endara favors a continued U.S. military presence, despite strong nationalist sentiment among his countrymen.

The State Department has acknowledged problems but underlines the U.S. intention to finish the canal giveaway on schedule. The treaties are intolerably flawed but have the advantages of being signed and old, and thus of bureaucratic inertia. Were they legally unimpeachable, an unimpeachable case would still exist for renegotiating them. As things are, a disturbingly strong case exists for a unilateral U.S. annulment.


But outright abrogation would gravely damage the mantle of propriety and legality that makes our country special and helps elevate it to world leadership. Day-to-day control of the canal and sovereignty over it should eventually be returned to Panama, when and if Panama is ready. But America, willing to invade Panama outright to remove Noriega, should be willing to clearly assert its right and intention to keep the canal in effective operation, period.

The Crane bill should be decisively passed and should spur a very hard national look at the 14-year-old treaties by which we are to divest ourselves, in 1999, of perhaps our most valuable overseas asset.