580 F.2d 1055 (D.C. Cir. 1978)
Art. IV covers four areas: (1) the disposition and regulation of United States territory; (2) the disposition and regulation of United States property; (3) claims of the United States; and (4) claims of any particular state. Actually these are all closely related. With respect to these areas of concern, the Convention provided that Congress should exercise the power to dispose and regulate territory and property, and then restricted the power so conferred by providing, in effect, that none of the powers conferred on the Congress, the President, or the Courts (“nothing in this Constitution”) shall be construed to prejudice “any claims of the United States or of any particular State.”
The claims so referred to were claims to “territory” in the West under Royal Charters which during the Convention were among the greatest concerns of some of the states. It is thus apparent that the most propitious place to restrict the power of the Congress, the President, and the Courts from dealing with this matter, was after the first three Articles and following the provision concerning Congress’ power to dispose and regulate territory and property. It would not have been appropriate to place the restrictive language of Art. IV, § 3, cl. 2, in any of the first three Articles, as that would have suggested that the limiting language of the clause had some special relation to one particular branch of the federal government rather than to all three branches. Placing the provision after those Articles, and after the territory and property provision, gives the limitation greater force and clarity.
Therefore, the location of the territory and property clause in Art. IV does not in any way limit the effect of its plain language to confer those powers on Congress as it prescribes. Furthermore, coupling the regulatory and disposition powers over “Territory [and] other Property belonging to the United States,” because the regulatory power is so completely legislative, is indicative of an intent to refer to the disposition power also in its legislative context.
In bypassing the House of Representatives, the pending agreement does not conform to established procedures of the Department of State. These have been codified, set forth, and designated as the “Circular 175 Procedure.” Department of State, 11 Foreign Affairs Manual § 700 et seq. (Oct. 25, 1974).
In its Circular 175 Procedure, the Department of State recognizes four types of International Agreements: Treaties which may be ratified by the Senate where to do so would not “contravene the United States Constitution . . . ” (Id., § 721.2(a), emphasis added). The Procedure also recognizes three types of agreements other than treaties:
(1) Agreements Pursuant to Treaty
The President may conclude an international agreement pursuant to a treaty brought into force with the advice and consent of the Senate, whose provisions constitute authorization for the agreement by the Executive without subsequent action by the Congress;
(2) Agreements Pursuant to Legislation
The President may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress; and
(3) Agreements Pursuant to the Constitutional Authority of the President
The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise of its constitutional authority.
Department of State, 11 Foreign Affairs Manual § 721.2(a) (Oct. 25, 1974) (emphasis added).
The Circular 175 Procedure also provides in the “Considerations for Selecting Among Constitutionally Authorized Procedures” for international agreements that consideration shall be given to:
c. Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;
d. Past U.S. practice as to similar agreements.
(Id., § 721.3). Following these guidelines established by the Department of State, it is obvious that those portions of the treaty providing for the transfer of property to Panama are in effect outside the treaty power. This follows because the United States Constitution requires the additional approval of the House of Representatives, or the reference to the necessity for the enactment of subsequent legislation by Congress, because Art. IV, § 3, cl. 2 provides that “The Congress shall have Power to dispose of . Property belonging to the United States . . ..” (emphasis added). No party to this case questions that the treaty in its present form seeks to dispose of property belonging to the United States without approval by Congress.
This is true both as to the right to act as sovereign in the territory and as to our actual ownership of soil and fixtures which constitute property. The instant Panama Canal Treaty, insofar as it purports to dispose of the Canal territory and property, thus includes provisions of the second type, section 721.2(a)2, supra, which the State Department procedure correctly interprets the Constitution to provide that:
The President may conclude . . . subject to legislation to be enacted by the Congress .
Thus, the property disposition portion of the treaty under the Constitution constitutes a severable international agreement that cannot constitutionally come into force unless the entire “Congress” approves that transfer.
Obviously Congress may not be required to approve other parts of the treaty. It should also be recognized that attempting to bypass the House of Representatives with the scheme which is framed as a “self-executing treaty” ignores that part of the Department of State Procedure which states that “[p]ast U.S. practice as to similar agreements” shall be followed. Id. § 721.3d. And, lest the Per Curiam opinion insist that its attempt to distinguish “executive agreements” was successful and authorizes the treaty procedure presently being followed, the “past practices” in Panama were in complete accordance with the views expressed in this opinion. See Part IV, infra; but cf. Per Curiam op., n.24.
The procedure to be used in conveying United States property to Panama confronted President Eisenhower in 1955 in the Eisenhower-Remon Treaty with the Republic of Panama which, inter alia, disposed of some “property of the United States” in Colon and Panama City. That Eisenhower-Remon Treaty provided in Art. V:
The United States of America agrees that, subject to the enactment of legislation by the Congress, there shall be conveyed to the Republic of Panama free of cost all the right, title and interest held by the United States of America or its agencies in and to certain lands and improvements in territory under the jurisdiction of the Republic of Panama [etc.] The lands and improvements referred to in the preceding sentence and the determinations by the United States of America respecting the same, subject to the enactment of legislation by the Congress, are designated and set forth in Item 2 of the Memorandum of Understandings Reached which bears the same date as this Treaty. The United States of America also agrees that, subject to the enactment of legislation by the Congress, there shall be conveyed to the Republic of Panama free of cost all its right, title and interest to the land and improvements in the area known as PAITILLA POINT and that effective with such conveyance the United States of America shall relinquish all the rights, power and authority granted to it in such area under the Convention signed November 18, 1903.
Treaty of Mutual Understanding and Cooperation Between the United States of America and the Republic of Panama, 6 U.S.T 2274, 2278-79 (Jan. 25, 1955) (emphasis added).
Thereafter, Congress enacted Public Law 85-223, 71 Stat. 509 (1957), which authorized such disposition.
This is the most substantial example of United States past practices that exists. It also transferred land to Panama. The treaty itself called for congressional enactment. In my opinion, that same procedure is required here by the property disposition provision of the Constitution and by the Department of State’s Circular 175 Procedure.
The Committee Report asserts that Articles VI and VII of the Eisenhower-Remon Treaty of 1955 is an example of a self-executing treaty which authorizes the transfer of territory or property belonging the United States to other nations without a “prior Congressional act authorizing such transfer.” Committee Report at 68, 69 (emphasis added). Close examination does not support that conclusion. Naturally, enactment of an act prior to the treaty is not necessary — but the Committee Report suggests that an act prior to the transfer is not necessary; and the intent of the Committee Report, the Attorney General’s Opinion, and the wording of the present Treaty provide for the transfer of the property the instant the instruments of ratification are exchanged, thereby completely eliminating the House of Representatives from any constitutional role in the transfer of United States property. Art. V of the 1955 treaty belies the Senate’s and appellee’s position.
And the two provisions in Articles VI and VII only related to minor boundary matters. Art. VI concerned the modification of a boundary line between the City of Colon and the Canal Zone; this article replaced Art. V of the Boundary Convention of September 2, 1914 and modified Art. VIII of the Hull-Alfaro Treaty, which had been signed on March 2, 1936. Art. VII concerned a boundary modification near Manzanillo Island.
The asserted “self-executing” nature of Articles VI and VII of the 1955 treaty therefore do not provide precedential authority for disposing of the Panama Canal property without congressional approval. First, rectification of boundaries is a distinct matter from the disposition of the straggering amount of property in question here. Boundary rectification ordinarily involves a dispute about which country owns the property; the subsequent agreement is more like a disposition of claims than of property, for the question of whether there even exists “United States property” is the entire matter in dispute. Second, in comparing the amount of property allegedly disposed of by Articles VI and VII to the amount being disposed in the present treaties, it is clear that the 1955 disposition, in relative terms, was even less than de minimus. Third, and most significantly, Congress did approve Articles VI and VII in its 1957 statute. Section 102(b) of the statute in its last line “authorized to be appropriated such amounts as may be required for the necessary replacement of property or facilities . . . conveyed or rendered excess as the result of the treaty or memorandum . . . .” Unlike Section 102(a) which only addressed the matters contained in Art. V of the treaty, Section 102(b) addressed all three articles — V, VI and VII — and the authorization of appropriations for replacement of conveyed property constituted approval by Congress of the content of Articles VI and VII.
However, even if Articles VI and VII did involve a disposition of property which Congress did not initially approve, it may be that those Articles were themselves unconstitutional. Even Congress’ silent acquiescence in that small disposition — assuming that is what may have happened temporarily — cannot alter the proper constitutional procedures mandated under Art. IV of the United States Constitution for the transfer by the Panama Canal treaty of United States property of the staggering value here being disposed of.
It is also convincing that in 1932, in another transfer of property to Panama, the Government considered it to be necessary to obtain prior specific congressional authorization even for a minor disposition of property from the Canal Zone to the Republic of Panama. Public Law No. 117, 47 Stat. 145 (May 3, 1932), authorized the Secretary of State to effect with the Republic of Panama a modification of the boundary line. This slight alienation was not a boundary correction but was in fact a cession of land made necessary by the requirements of international law with respect to embassies.
During World War II, there were discussions between Panama and the United States concerning disposition of bases and the transfer of waterworks and railroad lots. On May 18,1942, an agreement on the lease of defense sites was made between the two countries. A more significant agreement was reached that same day, which, based upon an exchange of notes, provided:
When the authority of the Congress of the United States shall have been obtained therefor, the Government of the United States will transfer to the Government of the Republic of Panama free of cost all of its rights, title and interest in the system of sewers and waterworks in the cities of Panama and Colon.
59 Stat. at 1289 (emphasis added). The agreement also provided:
The President will seek the authority of the Congress of the United States to transfer to the Republic of Panama free of cost all of its rights, title and interest to the lands belonging to or of which the Panama Railroad Company now has usufruct in the cities of Panama and Colon which are not currently or prospectively needed for the maintenance, operation, sanitation and protection of the Panama Canal, or of its auxiliary works, or for the operation of the Panama Railroad.
59 Stat. at 1290 (emphasis added). These agreements thus recognized the constitutional necessity for Congress to approve the disposition of United States property.
On May 3, 1943, Congress enacted the legislation necessary to effectuate the transfer. Public Law No. 48, 57 Stat. 74 (May 3, 1943). These are thus not examples of self-executing transfers by treaty.
Appellee also cites the “Convention of May 24,1950 [with the Republic of Panama] for Change in the Boundary and the Grant of Certain Corridors, 6 U.S.T. 462,” Appellee’s Supplemental Memorandum, March 17, 1978, at 3, as an example of a treaty which demonstrates “that under well established historical practice treaties with foreign countries have ceded rights to property of the United States,” id., at 4. Reference is also made to Art. VI in the 1955 treaty with respect to “a small portion of the Colon and of the Colon corridor.” Id., at 4.
The Convention of August 9,1950 is entitled “Colon Corridor and Certain Other Corridors Through the Canal Zone.” 6 U.S.T. 461. In Art. II thereof the Republic of Panama transferred certain tracts of land from the city of Colon to the Canal Zone as a boundary change and provided that said property would be incorporated “to form part of the Canal Zone in the same manner as though [said lands] had been included within the grants contained in the [boundary] convention of November 18, 1903 . . . ” 6 U.S.T. 465.
Thereafter in Art. Ill the United States transferred to the Republic of Panama “jurisdiction over the corridor” (emphasis added). This included the Colon corridor and another corridor through a small portion of the Canal Zone. The purpose of these transfers was so that “the city of Colon may enjoy direct means of land communication under Panamanian jurisdiction with other territory under jurisdiction of the Republic of Panama ...” 6 U.S.T. 465. This was something less than a transfer of “territory or property” because Art. V of the convention provided that the provisions previously referred to [conferring jurisdiction over corridors] “shall not affect the rights and obligations of either of the two high contracting parties under the treaties or other international agreements now in force between the two countries, nor be considered as a limitation, definition, restriction or restrictive interpretation of such rights and obligations . . . ” 6 U.S.T. 469.
The reference to prior “treaties or other international agreements now in force between the two countries . . . ” included reference to the treaty of November 18, 1903 which provides that the grants to the United States by the Republic of Panama should not “interfere with the rights of way over the public roads passing through the said Zone . . . unless said rights of way . . . shall conflict with rights . granted to the United States.” Art. VI, 33 Stat. 2235. Thus, there being no conflict with United States’ rights, the convention of 1950 insofar as it related to highway corridors was dealing with a subject in which the Republic of Panama had reserved certain rights from the earliest treaty. Therefore, the recognition of Panama’s “jurisdiction” over a highway corridor, which the agreement provided the United States had a right to use, and which did not take any land out of the Canal Zone proper, is not an instance where property owned by the United States was disposed of.
From the inception of the 1903 treaty, the United States had never possessed the right to “interfere with the rights of way over the public roads passing through the said zone” (Art. VI). The necessity for appellee to attempt to rely upon such unsupporting authority is an indication of the great weakness of his position.
The present case boils down to this: President Eisenhower in 1955 recognized his constitutional obligation to obtain authority from Congress to transfer a depot of the Panama Railroad to the Republic of Panama; but the appellee presently contends he does not need congressional approval to transfer the entire Panama Railroad and very substantial amounts of other property to the same party, and to reduce the entire interest of the United States in the colossal Panama Canal to a 21-year partnership with Panama solely in its operation.
With respect to prior treaties and agreements between the United States and Panama, the “past U.S. practice,” as demonstrated above, has recognized the necessity of approval by Congress and has sought such approval by legislation whenever United States territory or property was conveyed to Panama. Heretofore every transfer of United States’ property to Panama has been authorized in advance or subsequently ratified by action of Congress. The proposed agreement flies in the face of all these “past U.S. practices” and this violates established procedures of the State Department.
The Joint Resolution of 1943 which transferred the waterworks and some of the property of the Panama Railroad to Panama (57 Stat. 74) was the subject of debate in the Senate in which some Senators expressed the opinion that the disposition should have been made by Treaty, and not by resolution of both Houses (see 88 Cong. Rec. 9320 et seq.).
The scope of Art. IV was discussed at considerable length. Senator Hiram Johnson of California argued that the resolution was dealing with “property of the United States” and that the Senate should “perform its constitutional function” by disposing of it by treaty. However, his views did not prevail against those pointing to the specific character of the language in Art. IV, § 3, cl. 2.
On December 3, 1942, Senator Connally of Texas, Chairman of the Senate Foreign Relations Committee, discussed the pending Senate Joint Resolution 162, which was to similar effect as the House Joint Resolution which eventually authorized the transfer. He quickly addressed the sentiment that a treaty should be the implementation instead of a Joint Resolution by the Congress:
Mr. President, I am and have been and in the future shall continue to be ardent in my maintenance of the integrity and the rights of the Senate of the United States in all its proper functions as a branch of the Government; but the matter covered by the joint resolution has to be passed by the Congress sooner or later in some form, for the simple reason that under the Constitution of the United States, Congress alone can vest title to property which belongs to the United States. The Constitution itself confers on Congress specific authority to transfer territory or lands belonging to the United States.
So, if we had a formal treaty before us and if it should be ratified, it still would be necessary for the Congress to pass an act vesting in the Republic of Panama the title to the particular tracts of land; because “the Congress” means both bodies.
The House of Representatives has a right to a voice as to whether any transfer of real estate or other property shall be made either under treaty or otherwise.
88 Cong.Rec. 9267 (Dec. 3, 1942) (emphasis added). Senator Vandenberg of Michigan then intervened to inquire why the disposition of the waterworks and some property owned by the Panama Railroad could not be by executive agreement. They became somewhat sidetracked, whereupon Senator O’Mahoney of Wyoming queried why the disposition should not be by treaty? In the course of responding, Senator Connally stated:
Mr. President, I referred earlier in my remarks to the constitutional requirement that Congress shall exercise consent in the case of the disposal of real estate. Article IV, section 3, of the Constitution, among other things, provides:
The Congress shall have authority to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.
So that, in any event, it would be necessary to have congressional action even though there were a treaty. In this case it would be necessary to have congressional action parting with title to these properties.
88 Cong.Rec. 9269 (Dec. 3, 1942) (emphasis added). In response to a query from Senator Taft of Ohio, Senator Connally made the point that a treaty could be substituted for the joint resolution if there was subsequent enacting legislation:
Mr. TAFT. I am somewhat hazy on the subject of why an executive agreement should be confirmed by legislation instead of being made the subject of a treaty. I myself have had considerable difficulty in drawing the line. It does not seem to me that the mere fact that some legislation is necessary to implement this particular agreement necessarily excuses it from being made the subject of a treaty.
Mr. CONNALLY. As a legal proposition I think the Senator from Ohio is correct. The mere fact that legislation is required does not necessarily mean that we could not first, by means of a treaty, assume the obligations, and then carry out the obligations by the enactment of legislation.
I will say very frankly to the Senator from Ohio — I do not think he was present awhile ago when we discussed that question — that the Senator from Texas is not prepared with the accuracy of a civil engineer to draw the boundary line between what can be done by executive agreement and what can be done by a treaty.
88 Cong.Rec. 9270 (Dec. 3, 1942). (Emphasis added).
The next day, Senator Johnson of California spoke against the resolution, as described above. Senator Tunnell responded:
There are different methods, apparently, by which questions of international moment are met. This is not a new question. Sometimes those who have objected to the course of the Executive have been more fortunate than those who are now making this objection. In this instance the Constitution specifically provides for this method. In article IV, section 3, second paragraph, I find this language:
The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States.
It seems to me that if any other method than that of transfer by Congress had been attempted, we should have been met by the objection that Congress was the only power by which this territory or this property could be disposed of.
There is no other method or authority to dispose of property of the Nation than that which is reposed in the Congress.
88 Cong.Rec. 9322 (Dec. 4, 1942) (emphasis added). The Joint Resolution passed 40 to 29. 88 Cong.Rec. 9320 (Dec. 4, 1942).
It cannot be said from this that the procedure there adopted by the President and the Congress to transfer property to Panama has the same effect as a binding judicial precedent. It must be recognized, however, that the Senate did understand the nature and importance of the issue and its constitutional — and political — ramifications; and in an instance where United States property of much less value than is here involved was being transferred, the Senate did decide that the proper procedure called for legislative action of the Congress.
In our review of past practices, it is also important that this was another case involving the transfer of land to Panama.
Appellee contends that the Constitutional Convention adopted a proposal that required two-thirds of the Senate to concur in all treaties, including peace treaties involving cessions of territory. 2 Farrand, supra, at 544, 549 . . [which] demonstrate^] that the framers of the Constitution contemplated the transfer of United States territory and property by treaty. Appellee Br. at 11 (emphasis added). No such proposal was finally adopted. On September 4, 1787 the working draft of the proposed Constitution provided:
Sect. 4. The President by and with the advice and consent of the Senate, shall have power to make treaties But no Treaty shall be made without the consent of two-thirds of the Members present.
2 Farrand, The Records of the Federal Convention of 1787, 495 (rev. ed. 1929) (hereafter “Farrand”).
On September 7, the words “(except Treaties of Peace)” were added after the word “Treaty.” 2 Farrand, 533. Under this amendment, a majority vote of the Senate could have ratified a peace treaty.
Thereupon a motion was made to add the following amendment:
But no Treaty of Peace shall be entered into, whereby the United States shall be deprived of any of their present Territory or rights without the concurrence of two-thirds of the members of the Senate present.
2 Farrand, 534. This amendment was defeated by adjournment, 2 Farrand 534, 543, and was never offered again.
The very next day, as the first order of business, the convention struck the previously adopted amendment, i. e., “(except Treaties of Peace)” from then section 4 by a vote of eight states to three. 2 Farrand 544, 548-549. Thus, even that clause never became part of the treaty provision.
Thus, the convention eventually rejected the proposal that peace treaties should be ratified by a majority vote of the Senate, and by adjourning, it also rejected the proposal to add a specific provision that treaties of peace transferring United States Territory or rights would require a two-thirds vote if other peace treaties could be ratified by majority vote. Appellee’s brief and argument overlook these facts.
The mere offering, consideration, and rejection of the amendment as to United States “territory and rights” does not support appellee’s claim “that the framers of the Constitution contemplated the transfer of United States territory and property by treaty.” Appellee Br. at 11 (emphasis added). Had the amendment with respect to the “territory and rights” become part of the treaty clause of the Constitution, appellee’s interpretation would have been correct, but that amendment, contrary to appellee’s representation, never even reached the voting stage. 2 Farrand, 534, 543. Thus, the convention proceedings with respect to that amendment do not support appellee’s present contention, and the temporary inclusion of peace treaties does not support an interpretation that the naked treaty power which was eventually voted included the right to cede territory. Even if a “Peace Treaty” could, they are a peculiar breed with their own characteristics, and insofar as they cede property they are usually recognizing that the property has already passed from their domain. The conclusive answer to that argument, however, is that we are not here concerned with a “Peace Treaty.”
Doubtlessly, the two members who offered the amendment with respect to “territory and rights” were of the view that treaties could transfer territory and rights of the United States (to be) and of the particular states; but these amendments were defeated and there is no indication that the movers (Williamson and Spaight, 2 Farrand 543) took cognizance of the provision of the present Art. IV, § 3, cl. 2, which at that time was in its present form, except for its reference to “Legislature” which was later changed to “Congress” (2 Farrand 459, 466).
In this matter, however, we should be guided more by the action of the Convention as a whole and by the interpretation evident from rejection of the proposed amendment by a substantial majority of states. In this inquiry therejs nothing in the convention proceedings to refute the conclusion that the majority rejected the amendment because it interpreted the then-existing broader language that became Art. IV, § 3, cl. 2 as providing better protection for their interests through Congress than would have been possible through the defeated addendum to the treaty clause. In believing they had guaranteed that no territory or property belonging to the United States could be disposed of except by the Congress the Framers of the Constitution were concerned lest the President and 10 Senators (two-thirds of a bare quorum), possibly from only 5 states, would be empowered to dispose of United States territory and property. This was a real concern because the Senators under the Constitution were to be “chosen by the [state] Legislature” and were to be representatives of the states, whereas the “House of Representatives [was] . . . chosen . by the People,” and was considered to be their direct representatives — much like the House of Commons in England. In those days transportation from the outlying states of the newly formed nation was also slow, uncertain and difficult and there was always the possibility that the Senate might be meeting with short quorums. Hence the Framers were concerned that the assured broader representation of the House should be reflected whenever the President sought to dispose of Government territory or property particularly to foreign powers. The House of Representatives was also apportioned equally throughout the United States on the basis of population. Despite the Seventeenth Amendment providing for direct election of Senators, they are still elected from states without any apportionment based on population and the language of Art. IV, § 3, cl. 2, has not been changed or altered in any respect. Therefore, the territorial and property disposition provision retains the same intent as when it was originally composed by Gouverneur Morris and adopted by the Constitutional Convention — 11 states to 1.
Any member who relied on what became the property disposition clause of Art. IV would have voted for adjournment on September 7 against the territorial amendment discussed above, and would have had no reluctance to vote for the Constitution in the form in which it was submitted with Art. IV, § 3, cl. 2 as at present.
The majority also refers to the history of the state ratifying conventions, and concludes therefrom that the states — in addition to the Framers — were satisfied that a two-thirds requirement in the Senate, rather than full congressional approval, served, as an adequate check on the alienation of United States territory.
Such a broad conclusion cannot be drawn from the history of the state conventions. Typical of the majority’s position is reliance on a proposed amendment at the Virginia ratifying convention, which read in full as follows:
[N]o commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.
3 Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Convention 660 (1907). Irrespective of the statements of the participants of the Virginia convention, who may well have been laboring under the mistaken pretense that Art. VI was not operative in this area or who may not have even thought about that section at all, a wholly permissible conclusion to be drawn from the rejection of this amendment was that the provision in Art. IV for a vote of the full Congress for disposition of territory or property was an adequate safeguard. The statements of parties who suggested such amendments, in their honest but mistaken fear that the treaty power alone allowed the disposition of territory or property in circumstances such as are here present, and then had their amendment defeated, do not constitute an authoritative interpretation of the scope of Art. II.
Appellee’s brief and the Committee Report both refer to eleven treaties supplied by the Department of State and argue that such treaties were couched in self-executing terms and constitute examples of the transfer of United States territory or property to other nations, and in some instances to individuals, without a prior congressional act authorizing such transfer.
It is further asserted that these instances support the contention that Art. IV, § 3, cl. 2 of the Constitution permits the President through a treaty to dispose of property belonging to the United States without approval of “the Congress.”
We examine each of these treaties for verification of the asserted interpretation; and we find little or no support therefor.
Holden v. Joy, 84 U.S. (17 Wall.) 211, 21 L.Ed. 523 (1872), involved such a controversy. The Court held, in effect, that those who received land from the Indians acquired good title because Congress, by appropriating some four-and-one-half million dollars to carry out the treaty, had in effect ratified the ultra vires acts of the treaty negotiators. In so ruling, the Court’s opinion recognized the issue as to whether a treaty could convey lands belonging to the United States, but then stated;
It is not necessary to decide the question in this case, [whether the treaty conveyed title without Congressional approval] as the treaty in question has been fully carried into effect, and its provisions have been repeatedly recognized by Congress as valid.
84 U.S. (17 Wall.) at 247.
Thus, far from holding that a treaty can transfer property belonging to the United States without Congress, the case recognizes the requirement of congressional authorization and holds that when land is transferred in a treaty in excess of statutory authorization, the transfer may be legalized by a subsequent act of “Congress” which in some affirmative manner indicates approval of the otherwise ultra vires act.
The Treaty of October 2, 1863 with the Red Lake and Pembina Bands of Chippewa Indians (13 Stat. 667). — Appellee points to Art. IX of this treaty signed by President Lincoln as an alleged transfer of property not consented to by Congress. That article provided: “there shall be set apart from the tract hereby ceded [to the United States by the Bands of Chippewa Indians] a reservation of (640) six hundred and forty acres near the mouth of Thief River for the Chief ‘Moose Dung’ ...” The validity of the reservation to Chief Moose Dung was involved in Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49 (1899), which considered the validity of a subsequent lease made by one who inherited from the chief. Appellee cites the court’s decision upholding the lease for the rule that property of the United States may be transferred to individuals by treaty between the United States and Indian tribes without any act of Congress or any patent from the President. When the facts of this Indian treaty are analyzed, it is clear, however, that the authority of the case is limited to reservations of land made in treaties between the United States and Indian tribes, which were treated as being akin to nations. See following discussion of the Indian treaties.
Summary. — The early treaties with Indian tribes are sui generis as treaties. They are not treaties in the ordinary sense of the word as all have recognized since Congress in 1871 enacted a law prohibiting any “contract by treaty” with any Indian tribe or nations:
That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.
Act of March 3, 1871, 16 Stat. 566. Had Indian treaties been true treaties in the constitutional sense Congress could not have prohibited the President from so contracting by treaty. While the Act took the form of providing that Indian tribes shall not be “acknowledged or recognized” as “independent,” the statute clearly prohibited the President from negotiating treaties with any Indian tribe that was “independent.” The Act was thus in form a clear restriction on the treaty power, but actually it recognized that the Indian treaties were something different than the treaties referred to in the Constitution.
They have special features that generally make them inapplicable as authority that a treaty can dispose of other types of United States property without an Act of Congress. This is true because generally the subject of the Indian treaties was land owned and occupied by the Indians, which the United States was buying or acquiring. The treaty “reserved” some of the land for the Indians. Thus, property of the United States was not disposed of by the treaty.
Attorney General Taney in an opinion on September 20,1833 stated: “These reservations [of Indian land in treaties] are excepted out of the grant made by the treaty and did not therefor pass by it. Consequently the title remains as it was before the treaty, that is to say the lands reserved are still held under the original title.” 175 U.S. at 12, 20 S.Ct. at 5. Mr. Justice Nelson in Gaines v. Michelson, 50 U.S. (9 How.) 356, 13 L.Ed. 172 (1850), pointed out that in such transactions, “it was so much carved out of the territory ceded, and remained to the Indian occupant, as he had never parted with it. He [the Indian] holds strictly speaking not under the treaty of cession but under his original title confirmed by the government in the act of agreeing to the reservation.” 50 U.S. (9 How.) at 365.
In the Per Curiam opinion a statement in Jones v. Meehan, supra, 175 U.S. at 12-14, 20 S.Ct. 1, is cited as authority that the Taney opinion and the decision in Gaines v. Michelson, supra, were “irreconcilable with later Supreme Court opinions . . . ” (Per Curiam, n. 19). This may be explained by virtue of a change in the statute after Jones v. Meehan, supra, which eliminated the prohibition against individuals purchasing or leasing from any individual Indian. Act of June 30, 1834, c. 161, § 12, 4 Stat. 730.
But whether the treaty confirmed the Indian right or granted a new right is not dispositive of the question as to whether there was a disposition of territory or property belonging to the United States. Those treaties dwelt with territory and property and in doing so they dwelt with sovereignty over the territory and the right to individual patches of soil, as Chief Justice Marshall noted in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823). They also in some instances involved disputed claims to both territory and soil. In settling on the tribes the reserved territory the sovereign rights of the respective parties were involved, but in the “reservation” of specific acreage of soil to individual Indians, different claims were involved and this phase of the agreements was more concerned with what might be termed “property.” It is clear that at one time such “reservations” were considered as a recognition of land already owned by the Indians. This would be particularly true where the Indian at the time actually occupied the soil. In any event even Jones v. Meehan, supra, recognized that the land reserved to Chief Moose Dung on his death passed to his eldest son “by the laws, customs, and usages of the tribe . . . What the Per Curiam opinion, and many other opinions in this field fail to recognize is that the individual Indians acquired title by virtue of the treaty and that it is not completely correct to say that the United States granted the title. The treaties were the act of two governments. The Indians as possessors had far the greater claim to the extent that they actually occupied the soil and the grantors in the treaty were not solely the United States but included both signatories. And insofar as the right to the soil was concerned more came from the Indians than from the United States. It would hardly be correct to consider that soil actually occupied by an Indian for centuries was property belonging to the United States. The United States generally recognized the rights of such possessors, and though Indian claims to broad territory were only recognized as a right of occupancy, the reservation of individual tracts was on a different footing and generally by one device or another were found to be vested in fee simple in the actual Indian occupant. Jones v. Meehan, supra, 175 U.S. at 32, 20 S.Ct. 1, is a good example.
By way of conclusion on all these Indian treaties, in short, I deny that recognizing the ancestral right of Chief Moose Dung to pitch his tepee by the waters of Thief River is sufficient legal authority to give away the entire Panama Canal without benefit of Congress. Claiming support from such decision indicates the weakness of appellee’s case because the character of the two treaties, the relationship of the signatories, the consideration involved, the nature of our interest or claim to the property involved and our relationships to them are all different in material respects.
Therefore, the treaties with the Cherokees, the Chippewa Indians, and the transfer to Chief Moose Dung do not constitute authority that the Panama Canal Zone property of the United States may be transferred to Panama without the approval of the Congress. The same general modus operandi was followed in other Indian treaties.
This also disposes of the decision in Francis v. Francis, 203 U.S. 233, 27 S.Ct. 129, 51 L.Ed. 165 (1906), cited in the Per Curiam opinion. That is another Indian treaty case which interpreted one of the usual “reservations” that the Indians customarily made when they transferred some of their lands to the United States by treaty. As in the other Indian treaty cases, the first Justice Harlan’s opinion did not overturn the Chancellor’s ruling that the named Indian “and his heirs” obtained a fee simple estate in Indian lands which were “reserved [and] did not pass to the United States by the Treaty” (emphasis added) because under a rule of property in Michigan where the lands were located “[t]he term reservation was equivalent to an absolute grant.” The result in that respect was not disturbed. Thus, again the peculiarities of a reservation by Indians of their own lands in a joint treaty with the United States, belies the fact that the title passed by the treaty was to property (soil) that actually belonged to the United States. A more accurate description of the actual situation would be that the Indians never relinquished their claim and the treaty confirmed their title. These Indian treaties thus, to a certain extent, fall within treaties dealing with disputed claims. The citation of Francis by the Per Curiam opinion at page-of 188 U.S.App.D.C., at page 1062 of 580 F.2d overlooks the fact that it was the treaty of both parties that vested complete title, not the sole act of the United States. The case does not hold that the United States could transfer the soil by deed.
It also goes without saying that even if the Indians and the United States could jointly convey property to an Indian by a reservation of soil that he claimed, such precedents are not authority for the United States transferring property to Panama that is owned outright by the United States. The Panama Canal Treaty is an unquestioned disposition of property of the United States. The Indian treaties disposed of disputed territory and recognized claims of individual Indians to particular soil. This case is of interest though for another reason: it holds that the President, “without the authority of an act of Congress,” was not authorized to agree in the Treaty to a proviso that none of the reserved Indian lands could be conveyed without his consent. To a certain extent this recognizes that in Indian treaties the title is not conveyed to reservees but more accurately is merely recognized. See 50 U.S. (9 How.) at 365.
Taken by its four corners, this treaty is hardly a disposition of United States property. It is a mutual relinquishment of boundary claims which is a usual subject of diplomacy, particularly in undeveloped areas. The settlement of many boundary disputes are more the settlement of claims rather than transfers of property.
Treaty of August 9, 1842 between the United States and Great Britain (Webster-Ashburton Treaty) (8 Stat. 572). — This settled the boundary between the United States and Canada from the east through the Great Lakes, the present boundary waters and thence to the Rocky Mountains along the 49th parallel. Like the prior treaty, the parties here did not know where the boundary line they drew would begin to run westward from the Lake of the Woods. One result of this arrangement was the odd “Northwest angle” in Minnesota, which is completely separated by water from all United States territory. The treaty recognized prior grants of land by both countries in disputed areas. This agreement is within the traditional treaty-making function and does not qualify as a disposition of territory. It would be hard to point to the transfer of any property that belonged to the United States. This treaty is a perfect example of the settlement, in many respects, of highly questionable claims and not of the transfer of territory or property.
The Treaty of June 15, 1846 between the United States and Great Britain. The Oregon-Washington boundaries (9 Stat. 869). — The treaty recited that there was “doubt and uncertainty . . . respecting the sovereignty and government of . the northwest coast of America . westward of the Rocky or Stony Mountains.” The treaty continued the boundary line westward from the Rocky Mountains along the 49th parallel, and recognized the navigational rights on the Columbia River of the Hudson Bay Company and of British subjects on an equal footing with American citizens. This is another example of the settlement of doubtful and uncertain claims of the respective parties and not a transfer of property.
Treaty of February 1, 1933 between the United States and Mexico (84 Cong.Rec. 9824). — This treaty rectified the boundary along the Rio Grande River in the vicinity of El Paso and the Juarez Valley. The treaty involved a typical, minor boundary matter. Nevertheless, this Treaty looked to Congress for approval: Art. VIII provided that “[e]ach Government shall respectively secure title . . . .” Art. VII also provided that “Lands within the rectified channel . . [that] pass from one country to . the other . shall be acquired in full ownership by the [respective] Government . . .”
The treaty was thus executory and, moreover, since it required the appropriation of money, it looked to supporting enactments by the Congress of the United States and did not purport to be self-executing.
Treaty of August 29, 1963 between the United States and Mexico: Solution of El Chamizal, 15 U.S.T. 21. — This relocated the shifting channel of the Rio Grande River in the vicinity of El Paso and Juarez, and drew a boundary line at the center of a new channel for the river. By this arrangement, 823.50 acres of former United States land was ceded to Mexico by the treaty. However, far from this being an instance where the President attempted to transfer United States territory or property by a self-executing treaty without prior congressional act, the treaty in Art. 6 specifically recognized the constitutional requirement and provided that the acquisition of the lands be transferred to Mexico and the rights of way for that portion of the new river channel in the territory of the United States shall not occur until “after . the necessary legislation has been enacted for carrying it out . . . ” This treaty thus supports appellant’s contentions and not those of the appellee. That appropriations were also required may have been an additional reason for recognizing the constitutional role of Congress but that apparent necessity here has not caused the President to recognize the role of Congress. Cf. Per Curiam opinion, at-n. 22, of 188 U.S.App.D.C., at 1063-1064 n. 22 of 580 F.2d. In its discussion of this Mexican treaty the Per Curiam opinion recognizes the necessity in that instance for approval by Congress because the treaty required implementing legislation (Per Curiam op., n. 22). The implementing legislation required by the Panama Canal Treaty will make that necessitated by the Mexican Treaty pale into insignificance.
Treaty of November 23,1970 between the United States and Mexico (23 U.S.T. 371). — This is another instance where the treaty resolved boundary differences arising from the shifting of channels. This treaty likewise was contingent and not self-executing, Article III provided, i. e., that “the necessary legislation has been enacted for carrying it out.” 23 U.S.T. 377. This is another treaty that supports appellants’ contention and not those of the appellee.
Treaty of November 22,1971 between the United States and Honduras: Swan Islands (23 U.S.T. 2631). — Both governments claimed sovereignty of the Swan Islands, but the United States had for many years maintained a navigation and communications facility there. By the treaty, the United States recognized the sovereignty of Honduras and transferred certain land, buildings, and equipment to Honduras. There was a second cooperative agreement whereby the United States was to operate the navigational facilities and Honduras was to assume responsibility for a dock and landing strip. The United States retained title to a great number of buildings and equipment except the land, and by the treaty Honduras made the areas — sites—available to the United States. This was a cooperative program for continuation of meteorological and communication facilities in Swan Islands. To the extent that any property was transferred, it was certainly minimal and hardly justified legislation. It cannot be considered as authority for transferring eight billion dollars of United States property.
Treaty of June 17, 1971 between the United States and Japan (23 U.S.T. 447). —This related to the reversion of the Ryukyu (includes Okinawa) and Daito Islands. Some of this property may have been transferred pursuant to prior congressional enactments, i. e., 40 U.S.C. §§ 511 and 512. Section 511 authorizes federal agencies having foreign excess property to dispose of such property. That is definitely authorization for the transfer of what would be excess property of the United States after the reduction of our military operations on Okinawa. The treaty relinquished in favor of Japan all rights and interests under Art. III of the Treaty of Peace with Japan of September 8, 1951. Japan in turn granted to the United States the use of facilities and areas in accordance with the treaty of January 19, 1960, which was the Treaty of Mutual Cooperation and Security providing for collective self-defense. Art. IX of this treaty terminated our temporary right of military occupation.
It is hard to construe this treaty as authority for transferring United States property by treaty without implementing legislation.
It must be recognized that no court has had any opportunity to pass on the validity of many of these provisions, because when property or rights are transferred in a foreign country pursuant to asserted or de facto authority, as the practical matter, it is difficult, if not impossible thereafter, to litigate or rescind the transfer.
In sum, no substantial support can be found in any of the 11 treaties for appellee’s contention. The Indian treaties do not support his position because of their very nature, i. e., the land allegedly transferred to the Indian is his land which he reserves from transfer to the United States under the treaty. The treaties with Spain and Great Britain involved the settlement of boundary claims and this is not a boundary controversy. Indeed, it would be hard to convince Spain and the British that in these treaties, which expanded our frontiers to absorb all of Florida on the south and to stretch our boundary westward from the Louisiana Purchase to the Pacific Ocean between the 42nd and 49th parallels, the United States was disposing of its own property. Two of the three treaties with Mexico specifically recognized the need for congressional legislation and the third treaty implicitly recognized such necessity; the Honduras treaty involved very minimal amounts of property; the Japan treaty had statutory authority to transfer surplus war property and otherwise merely relinquish our temporary right of military occupation; and the 1955 Panamanian treaty specifically recognized that legislation by Congress was necessary to the transfer of United States property.
When these eleven treaties are examined and analyzed, and those are culled out wherein the constitutional requirements were complied with through the enactment by Congress of implementing legislation and thus strongly support the position of the appellant-Congressmen, it appears obvious that there is dearth, if not an almost complete absence, of any supporting authority for the action of the appellee in attempting to bypass the entire House of Representatives in this transfer to Panama of the tremendous amount of property of the United States that is here involved.
From the foregoing it is concluded that a political question is not involved, that established procedures of the Department of State and past United States procedures involving similar agreements with Panama and others recognize and require that Congress approve the transfer of United States property, that the Restatement of Foreign Relations Law reaches the same conclusion, and that the adjudicated cases hold that the power to dispose of United States property is vested exclusively in the Congress. In my opinion, we should accordingly declare the law to be that those provisions of the pending treaty which dispose of territory or property belonging to the United States to the Republic of Panama cannot come into force under the Constitution of the United States until approved by the Congress. In my view, because of the parties involved, it would not be necessary to issue an injunction.
The Report of the Senate Committee on Foreign Relations of a much earlier date has much advice that could well be followed by the relevant parties in the present controversy:
The question has been debated how far Congress would be bound to give effect, in cases requiring its cooperation, to regulations by treaty on subjects put within its express province by the Constitution. Whichever may be the better opinion, the doubt supplies reason enough against putting the question to trial in other circumstances than those in which the concurrence of Congress may be safely assumed. And the reason is the stronger for this forbearance from the fact that in the contingency of conflict it would be not the interests only, but the faith, too, of the nation which might be compromised, as this would have been committed by the adoption of the treaty regulations.
The condition of the Government at this point is of peculiar delicacy as regards the arrangement of its imposts. Parties have been arrayed with vehemence and the greatest sensibility awakened on the subject. Regulation by treaty in these circumstances would doubtless be carried into effect by the House of Representatives. But the temper in which the supposed intrusion might be expected to be received would be anything but cordial or placid. Ought not the occasion to be considerable, the motive urgent, to warrant the exercise of the authority at this cost? This is a topic requiring only to be displayed, not dwelt on.
2 Hinds’ Precedents § 1532, at 1000.
What is the great urgency for not recognizing the constitutional right and duty of the House of Representatives to pass on the transfer of the rare property here involved? The United States by the narrow margin of one vote was enticed into accepting Panama as the first choice over Nicaragua for the location of the Canal, and the operating rights promised by Panama in the 1903 treaty were purposely designed to assure that the United States would build the Canal in Panama and not in Nicaragua.
Thereafter, a national treasure beyond compare in the form of an engineering marvel was created by the ingenuity and genius of American statesmen, builders, and doctors who persevered where all others had failed miserably, or failed even to begin. And with an expenditure by Congress of this nation’s wealth never before equalled in history created an international public facility that has given Panama a healthful community it never before possessed, a much higher standard of living than its neighbors, and under benign United States’ management benefited the entire world.
The transfer of United States territory and property in the Panama Canal Zone directly affects immense vital interests of the entire nation involving as it does significant commercial concerns and our national security. Some of these matters were pointed out by Senator Hiram Johnson of California in 1939, when, in speaking on the ratification of the Hull-Alfaro Treaty, which proposed certain amendments in our relations with Panama, he remarked:
The Panama Canal will be protected, if protected, by us. The Panama Canal, if it be retained, and if it serve its purpose [as “the life line of the Republic,” id., 9838], will do so because of our efforts; and the Panama Canal, because of the peculiar relation we have to it, should not be in any degree tied, or hamstrung, or put in a strait jacket by a treaty made by the United States of America.
84 Cong.Rec. 9838 (1939). The momentous nature of these national interests peculiarly qualify the House of Representatives for its constitutional role because it directly represents our entire citizenry on a uniform basis — which was the principal reason that the Framers of the Constitution directed that the entire Congress should pass on such matters.
However, regardless of disputes on other issues, one conclusion is certain. That is that if the present attempt successfully usurps the constitutional right and duty of the House of Representatives to vote on the disposition of United States’ property of the tremendous magnitude and value of our Panama holdings a precedent of such enormity will be created that the constitutional right of the House of Representatives to vote on transfers of property to foreign nations need never again be seriously recognized.
To the extent that the President may have discretion to choose between proceeding by treaty or other forms of international agreement, he cannot avoid the constitutional requirement that the entire Congress pass on all attempts to dispose of United States’ territory and property to other nations. All past practices in this field indicate that prior Presidents have recognized that obligation even when property of much less value and significance was involved.
The United States of America and the Republic of Panama,
Acting in the spirit of the Joint Declaration of April 3,1964, by the Representatives of the Governments of the United States of America and the Republic of Panama, and of the Joint Statement of Principles of February 7, 1974, initialed by the Secretary of State of the United States of America and the Foreign Minister of the Republic of Panama, and
Acknowledging the Republic of Panama’s sovereignty over its territory,
Have decided to terminate the prior Treaties pertaining to the Panama Canal and to conclude a new Treaty to serve as the basis for a new relationship between them and, accordingly, have agreed upon the following:
ABROGATION OF PRIOR TREATIES AND ESTABLISHMENT OF A NEW RELATIONSHIP
(a) The Isthmian Canal Convention between the United States of America and the Republic of Panama, signed at Washington, November 18, 1903;
(b) The Treaty of Friendship and Cooperation signed at Washington, March 2, 1936, and the Treaty of Mutual Understanding and Cooperation and the related Memorandum of Understandings Reached, signed at Panama, January 25, 1955, between the United States of America and the Republic of Panama;
(c) All other treaties, conventions, agreements and exchanges of notes between the United States of America and the Republic of Panama concerning the Panama Canal which were in force prior to the entry into force of this Treaty; and
(d) Provisions concerning the Panama Canal which appear in other treaties, conventions, agreements and exchanges of notes between the United States of America and the Republic of Panama which were in force prior to the entry into force of this Treaty.
In accordance with the terms of this Treaty and related agreements, the Republic of Panama, as territorial sovereign, grants to the United States of America, for the duration of this Treaty, the rights necessary to regulate the transit of ships through the Panama Canal, and to manage, operate, maintain, improve, protect and defend the Canal. The Republic of Panama guarantees to the United States of America the peaceful use of the land and water areas which it has been granted the rights to use for such purposes pursuant to this Treaty and related agreements.
The Republic of Panama shall participate increasingly in the management and protection and defense of the Canal, as provided in this Treaty.
In view of the special relationship established by this Treaty, the United States of America and the Republic of Panama shall cooperate to assure the uninterrupted and efficient operation of the Panama Canal.
RATIFICATION, ENTRY INTO FORCE, AND TERMINATION
This Treaty shall be subject to ratification in accordance with the constitutional procedures of the two Parties. The instruments of ratification of this Treaty shall be exchanged at Panama at the same time as the instruments of ratification of the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, signed this date, are exchanged. This Treaty shall enter into force, simultaneously with the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, six calendar months from the date of the exchange of the instruments of ratification.
This Treaty shall terminate at noon, Panama time, December 31, 1999.
CANAL OPERATION AND MANAGEMENT
The Republic of Panama, as territorial sovereign, grants to the United States of America the rights to manage, operate, and maintain the Panama Canal, its complementary works, installations and equipment and to provide for the orderly transit of vessels through the Panama Canal. The United States of America accepts the grant of such rights and undertakes to exercise them in accordance with this Treaty and related agreements.
In carrying out the foregoing responsibilities, the United States of America may:
(a) Use for the aforementioned purposes, without cost except as provided in this Treaty, the various installations and areas (including the Panama Canal) and waters, described in the Agreement in Implementation of this Article, signed this date, as well as such other areas and installations as are made available to the United States of America under this Treaty and related agreements, and take the measures necessary to ensure sanitation of such areas;
(b) Make such improvements and alterations to the aforesaid installations and areas as it deems appropriate, consistent with the terms of this Treaty;
(c) Make and enforce all rules pertaining to the passage of vessels through the Canal and other rules with respect to navigation and maritime matters, in accordance with this Treaty and related agreements. The Republic of Panama will lend its cooperation, when necessary, in the enforcement of such rules;
(d) Establish, modify, collect and retain tolls for the use of the Panama Canal, and other charges, and establish and modify methods of their assessment;
(e) Regulate relations with employees of the United States Government;
(f) Provide supporting services to facilitate the performance of its responsibilities under this Article;
(g) Issue and enforce regulations for the effective exercise of the rights and responsibilities of the United States of America under this Treaty and related agreements. The Republic of Panama will lend its cooperation, when necessary, in the enforcement of such rules; and
(h) Exercise any other right granted under this Treaty, or otherwise agreed upon between the two Parties.
(a) The Panama Canal Commission shall be supervised by a Board composed of nine members, five of whom shall be nationals of the United States of America, and four of whom shall be Panamanian nationals proposed by the Republic of Panama for appointment to such positions by the United States of America in a timely manner.
(b) Should the Republic of Panama request the United States of America to remove a Panamanian national from membership on the Board, the United States of America shall agree to such request. In that event, the Republic of Panama shall propose another Panamanian national for appointment by the United States of America to such position in a timely manner. In case of removal of a Panamanian member of the Board at the initiative of the United States of America, both Parties will consult in advance in order to reach agreement concerning such removal, and the Republic of Panama shall propose another Panamanian national for appointment by the United States of America in his stead.
(c) The United States of America shall employ a national of the United States of America as Administrator of the Panama Canal Commission, and a Panamanian national as Deputy Administrator, through December 31, 1989. Beginning January 1, 1990, a Panamanian national shall be employed as the Administrator and a national of the United States of America shall occupy the position of Deputy Administrator. Such Panamanian nationals shall be proposed to the United States of America by the Republic of Panama for appointment to such positions by the United States of America.
(d) Should the United States of America remove the Panamanian national from his position as Deputy Administrator, or Administrator, the Republic of Panama shall propose another Panamanian national for appointment to such position by the United States of America.
An illustrative description of the activities the Panama Canal Commission will perform in carrying out the responsibilities and rights of the United States of America under this Article is set forth at the Annex. Also set forth in the Annex are procedures for the discontinuance or transfer of those activities performed prior to the entry into force of this Treaty by the Panama Canal Company or the Canal Zone Government which are not to be carried out by the Panama Canal Commission.
The Panama Canal Commission shall reimburse the Republic of Panama for the costs incurred by the Republic of Panama in providing the following public services in the Canal operating areas and in housing areas set forth in the Agreement in Implementation of Article III of this Treaty and occupied by both United States and Panamanian citizen employees of the Panama Canal Commission: police, fire protection, street maintenance, street lighting, street cleaning, traffic management and garbage collection. The Panama Canal Commission shall pay the Republic of Panama the sum of ten million United States dollars ($10,-000,000) per annum for the foregoing services. It is agreed that every three years from the date that this Treaty enters into force, the costs involved in furnishing said services shall be reexamined to determine whether adjustment of the annual payment should be made because of inflation and other relevant factors affecting the cost of such services.
The Republic of Panama shall be responsible for providing, in all areas comprising the former Canal Zone, services of a general jurisdictional nature such as customs and immigration, postal services, courts and licensing, in accordance with this Treaty and related agreements.
The United States of America and the Republic of Panama shall establish a Panama Canal Consultative Committee, composed of an equal number of high-level representatives of the United States of America and the Republic of Panama, and which may appoint such subcommittees as it may deem appropriate. This Committee shall advise the United States of America and the Republic of Panama on matters of policy affecting the Canal’s operation. In view of both Parties’ special interest in the continuity and efficiency of the Canal operation in the future, the Committee shall advise on matters such as general tolls policy, employment and training policies to increase the participation of Panamanian nationals in the operation of the Canal, and international policies on matters concerning the Canal. The Committee’s recommendations shall be transmitted to the two Governments, which shall give such recommendations full consideration in the formulation of such policy decisions.
In addition to the participation of Panamanian nationals at high management levels of the Panama Canal Commission, as provided for in paragraph 3 of this Article, there shall be growing participation of Panamanian nationals at all other levels and areas of employment in the aforesaid commission, with the objective of preparing, in an orderly and efficient fashion, for the assumption by the Republic of Panama of full responsibility for the management, operation and maintenance of the Canal upon the termination of this Treaty.
The use of the areas, waters and installations with respect to which the United States of America is granted rights pursuant to this Article, and the rights and legal status of United States Government agencies and employees operating in the Republic of Panama pursuant to this Article, shall be governed by the Agreement in Implementation of this Article, signed this date.
Upon entry into force of this Treaty, the United States Government agencies known as the Panama Canal Company and the Canal Zone Government shall cease to operate within the territory of the Republic of Panama that formerly constituted the Canal Zone.
PROTECTION AND DEFENSE
(The footnotes above have been renumbered sequentially for this document; original numbering from the opinion is preserved in the body where referenced.)