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Asked for the essential difference between free transit and unimpeded passage, Mr. Moore stated:
The fundamental difference is between innocent passage on the one hand, which stands for the whole panoply of legal rights under the 1958 Geneva Convention, including no overflight rights, submarines being required to surface. ... Under the innocent passage regime there is no right as part of the law of the sea for any form of overflight without the consent of the coastal state, and that, of course, would be intolerable and would close off the world's oceans basically to the free navigation and overflight we would otherwise enjoy on the high seas.
For the full text of Mr. Moore's testimony, see Hearings on Law of the Sea before the Subcommittee on Oceans and Environment of the Senate Committee on Foreign Relations, 94th Cong., 1st Sess., May 22, 1975, pp. 5–35. The single negotiating text produced by the Chairman of Committee II at the Geneva session of the U.N. Law of the Sea Conference is at A/CONF.62/WP.8/ Part II, May 7, 1975. For the text and the report of the U.S. delegation, see Hearings on Status Report on Law of the Sea Conference before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., June 4, 1975, Part 3, and The Third U.N. Law of the Sea Conference, Geneva Session, March-May 1975, Report to the Senate, 94th Cong., 1st Sess.
In an aide-memoire to the Canadian Government dated March 12, 1975, the Department of State defended the right of innocent passage, free from unreasonable or arbitrary interference, for vessels proceeding to or departing from U.S. ports through the waters of Head Harbour Passage. The Canadian Government, in an aide-memoire of March 6, 1975, had referred to a pending application before the Maine Environmental Protection Board regarding the construction of a superport and refinery at Eastport, Maine. After noting Canada's consistent opposition to such construction on the grounds that supertanker traffic to and from the port could only proceed by way of the waters of Canada's Head Harbour Passage, the Canadian note added that should the Board decide in favor of the pending application, the Canadian Government would promulgate regulations limiting the amount of oil and or oil products that may be carried through the waters of Head Harbour Passage.
The Department's aide-memoire in reply stated in part:
the view of the United States Government is that vessels proceeding to or departing from United States ports through the waters of Head Harbour Passage enjoy the right of innocent passage under international law. This right is not subject to unreasonable or arbitrary interference or suspension. Dept. of State File No. P75 0050_989.
The United States and the Arab Republic of Egypt exchanged letters on June 16 and 29, 1975, constituting an agreement to extend until July 22, 1975, the presence of a U.S. Navy residual force assisting in clearing the Suez Canal of small sunken vessels and advising the Egyptians in ordnance removal techniques (TIAS 8170; 26 UST; entered into force June 29, 1975).
Under Presidential authority contained in Section 614 of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2364) and with financing furnished by the Agency for International Development (AID), the Department of Defense had begun the operation of clearing the Suez Canal of sunken vessels and unexploded ordnance in April 1974. See the 1974 Digest, pp. 352–354. Removal of the largest sunken vessels and of the bulk of unexploded ordnance was completed in mid-December 1974, and the principal U.S. vessels involved departed Egypt. At the request of the Government of Egypt a residual force, consisting of one ordnance disposal team and one seagoing tug, remained to continue advisory services on the removal of unexploded ordnance and to assist in the removal of smaller wrecks in the basin and port areas. The United States agreed to grant an additional $75,000 from the Fiscal Year 1975 AID Fund to permit the residual team to remain in the area during July 1975 to complete work in clearing the Suez Canal which was beyond the capability of Egyptian equipment. Including the $75,000, total AID funding for the Suez Canal clearance project totalled $22,225,000.
Dept. of State File L/T.
The United States and the Arab Republic of Egypt, by an exchange of notes dated July 6, August 20, August 21, and September 25, 1975, effected an arrangement for assistance of the United States in the clearance of the coastal waters in the environs of Port Said and between Port Said and Damietta (TIAS 8169; 26 UST; entered into force provisionally August 21, 1975, and definitively September 25, 1975). Under the arrangement the activities described would be governed by the provisions of the arrangement between the United States and Egypt concerning assistance in the clearance of the Suez Canal, effected by an exchange of notes of April 13 and 25, 1974 (TIAS 7882; 25 UST 1474; entered into
force April 25, 1974). See the 1974 Digest, pp. 352-354.
By incorporating the provisions of the 1974 arrangement, the new arrangement provided that, subject to the availability of funds and otherwise in accordance with the laws of the United States, a special U.S. force would be established for the purpose of cooperating with the appropriate Egyptian authorities and, as might be agreed, the armed forces of the United Kingdom, in minesweeping operations in the specified coastal waters. The status-of-forces framework and claims provisions of the earlier arrangement likewise became applicable to the new activities.
The arrangement was to continue in force until the termination of the clearance activities referred to, and the consequent departure of the special force.
Legal authority for the use of funds for the clearance project on a grant basis was provided by Sec. 531 of the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2346). In accordance with Sec. 113 of the Foreign Assistance and Related Appropriations Act of 1975 (P.L. 94–11; 89 Stat. 17; approved Mar. 26, 1975), the executive branch, on Aug. 5, 1975, notified appropriate committees of Congress of its intent to use $2.5 million in funds on a grant basis for the project, and on Oct. 14, 1975, informed them of its intent to use an additional $1.5 million in appropriated funds on a grant basis for the project.
Dept. of State File L/T.
Secretary of State Kissinger, on May 10, 1975, read a joint United States-Panama statement concerning progress on a new Panama Canal treaty, in an informal session of heads of delegations at the Fifth General Assembly of the Organization of American States (OAS), held at Washington May 8-19, 1975. The statement follows:
The negotiations looking toward an agreement for a new canal treaty between the Republic of Panama and the United States of America began 11 years ago, when both countries signed a joint declaration on April 3, 1964, under the auspices of the Council of the Organization of American States.
In reviewing the present state of the negotiations for a new canal treaty, we wish to emphasize that the recent efforts of both parties to be frank and open in their presentations has opened the door to advances in the negotiating process. We continue to believe that this is an indispensable prerequisite to the success of the conversations being held by the representatives of our respective governments and peoples.
We view the negotiations as a search for a total and complete agreement directed at eliminating all causes of conflict between the Republic of Panama and the United States of America, as an
elaboration of that which was first set down in the statement of eight principles signed by the representatives of both countries on February 7, 1974. These eight principles constitute the fundamental framework within which the present negotiations are going forward, and it is on those principles that an entirely new treaty, of fixed duration, will be based.
The negotiations are a single whole; the subjects cannot be separated one from another. To arrange the procedures for the negotiations, the work has been divided into subjects taken up in a predetermined sequence so that the two parties in an objective and honest fashion might arrive at partial agreements leading to a single, coherent transaction.
During the last year there have been significant advances in important subjects; these include agreements relating to jurisdiction, to the administration of the canal, and to conceptual aspects on protection and defense of the canal. But it is still necessary to negotiate other fundamental subjects, among them the duration of the new treaty and the use of land and water.
It is clear that the negotiation is a delicate political process. The need for a new treaty is clear, but is has been developing over too long a time. We look toward a new type of relationship between Panama and the United States which will be truly equitable to both. We are convinced that it is imperative to achieve real and visible progress in the subjects to be negotiated, and both governments are bending their best efforts to that end, attempting to avoid unsurmountable difficulties which might frustrate the ultimate success of the negotiation.
We realize that the hemisphere, which considers the canal issue a matter of common interest, will welcome with profound satisfaction that day in the not too distant future when two sovereign nations of the continent-Panama and the United States-present the final results of their efforts in the form of a new, just, and equitable treaty and lay to rest the possibility of an event of international political turmoil which would be of concern to all.
The OAS General Assembly responded by adopting unanimously, on May 15, 1975, a resolution expressing satisfaction with the progress made and encouraging both parties to arrive at a prompt conclusion of the negotiations. In the operative part of the resolution the General Assembly resolved:
1. To note with satisfaction that on February 7, 1974, the Foreign Minister of the Republic of Panama and the Secretary of State of the United States signed an eight-point statement setting forth basic principles that will serve as a guide for the negotiators of the two countries, in which it is stipulated, inter alia, that the Panamanian territory of which the Panama Canal forms a part will soon be returned to the jurisdiction of the Republic of Panama, and that the Republic will assume total responsibility for the inter-oceanic canal on the termination of the new treaty.
2. To note with satisfaction the report presented by the delegations of the United States and of Panama, which records the progress made.
3. To express the hope that a prompt and successful conclusion will be reached in the negotiations that the Governments of the United States and the Republic of Panama have been conducting for eleven years for the purpose of concluding a new, just, and fair treaty concerning the Canal, which will definitively eliminate the causes of conflict between the two countries and be
efficacious in strengthening international cooperation and peace in the Ameri
For the joint U.S.-Panama statement of May 10, 1975, and the full text of the OAS General Assembly resolution of May 15, 1975, ee Dept. of State Bulletin, Vol. LXXII, No. 1878, June 23, 1975, pp. 881-883. The resolution is also in OAS Doc. AG/RES.174 (V-0/75) and the Proceedings of the Fifth Regular Session of the OAS General Assembly, OAS Doc. OEA/Ser.PN.-0.2, June 11, 1975, Vol. 1. The 1903 U.S.-Panama canal convention is at 33 Stat. 2232; TS 431; 10 Bevans 663; amendments are in the treaty of Mar. 2, 1936 (53 Stat. 1807; TS 945; 10 Bevans 742), and the treaty of Jan. 25, 1955 (6 UST 2273; TIAS 3297). The joint declaration of Apr. 3, 1964, referred to in the first paragraph of the U.S.-Panama statement of May 10, 1975, is at Dept. of State Bulletin, Vol. L, No. 1296, Apr. 27, 1964, p. 656. The U.S.-Panama statement of principles, signed Feb. 7, 1974, is at id., Vol. LXX, No. 1809, Feb. 25, 1974, pp. 184–185, and the 1974 Digest, pp. 355356.
During consideration in the House of Representatives of the Department of State appropriation bill for 1976 (H. R. 8121), Congressman M. G. Snyder introduced an amendment to prevent appropriated funds from being used to negotiate a new treaty that would relinquish any United States rights in the Canal Zone. The amendment, as adopted by the House of Representatives on June 26, 1975, by a vote of 246 to 164, stated:
None of the funds appropriated in this title shall be used for purposes of negotiating the surrender or relinquishment of any U.S. rights in the Panama Canal Zone. [H.R. 8121, $ 104.]
Cong. Rec., Vol. 121, No. 103, June 26, 1975, pp. H 6226-6236 (daily ed.).
On July 25, 1975, Monroe Leigh, Legal Adviser of the Department of State, made available to members of Congress a memorandum of law stating the Department's opinion that the legislative proposal embodied in the Snyder amendment was not a constitutionally valid exercise of the legislative authority of the Congress. The following is an excerpt from Mr. Leigh's memorandum:
The purpose of this memorandum is to discuss the constitutionality of the Snyder amendment, in particular whether Congress, by restricting the use of appropriations or otherwise, can constitutionally prevent or inhibit the President from “nego tiating" particular treaty terms.
Statutory restrictions on what treaty terms the President can negotiate are inconsistent with the treaty-making process set forth in the Constitution. Article II, Section 2 of the Constitution assigns very specific functions to the President and to the Senate:
He (the President) shall have Power, by and with the advice and Consent of the Senate, to make treaties, provided two