March 9, 1978
Page 6202
Mr. LAXALT. I would not want the record to indicate that the Senator from Nevada has any present reservations about the ability of the Panamanians to operate and maintain this canal. I must confess that I came into this debate with some reservations. One of the byproducts of the debate has been to dispel that. That is not my concern.
My concern is a political concern that, despite the best intentions of the Panamanians, despite the fact that they have the capability and certainly will develop the remaining capability over a period of 22 years, what happens in the event of the type of political problem Senator GARN has spoken of so frequently during the course of this debate, that they attempt to siphon funds away from maintenance and eventually, through political dereliction, are not able to properly maintain the canal? Are we covered, by the wording in the proposed amendment, against that type of contingency?
Mr. ROBERT C. BYRD. The Senator wants to presume something that I do not want to presume. He wants to anticipate something that I do not want to anticipate, and I do not anticipate. He presumes by his question that it will not be in the best interests of the Panamanians to maintain this canal properly. I do not presume that at all. I presume just the contrary, that it will be in their best interests to properly maintain the canal so as to keep it running efficiently and operating well; because financially — the Senator talks about siphoning off funds and using them for something else — the Panamanians will recognize, as readily as the Senator from Nevada recognizes or the Senator from West Virginia recognizes, the importance of maintaining that canal properly; because with proper maintenance, the returns by way of revenues to the Republic of Panama will be enhanced rather than lessened.
I want to presume that the Panamanians see it as in their own best interests to properly maintain the canal. So I will not assume what the Senator assumes in his question.
If I may get on with—
Mr. LAXALT. May I ask another question or two? I do not want to prolong this.
I think we are at the point where a number of basic procedural questions have arisen in the discussion that the Senator from West Virginia and the Senator from Alabama have had, as to what constitutes an amendment and what does not. In the position I occupy, in opposition, I am constantly asked by our colleagues as to what the difference is between an amendment and a reservation and an understanding.
At this point, and very quickly, under the terms of the time agreement, we are going to be considering items on this desk which are in the nature of reservations and understandings, and I would like very much to have the majority leader at this time tell me, on behalf of a number of our colleagues, what the essential differences are procedurally in terms of the quality of the particular instrument and, last, whether or not this amendment requires a plebiscite or whether the reservations and understandings on the desk presently would require an additional plebiscite.
Mr. ROBERT C. BYRD. As to the Senator's last questions first: I do not think that whether this amendment requires a plebiscite or whether other amendments require a plebiscite makes any difference, amounting to a hill of beans, as to what the question is before the Senate at this moment.
Why should I be drawn into a discussion here as to whether or not this amendment requires a plebiscite? The issue before the Senate is the one to which the Senator first addressed his question, and that was, I think, if I correctly understood him, that I attempt to explain the distinction between a reservation, an understanding, and an amendment — et cetera, et cetera.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. ROBERT C. BYRD. I yield.
Mr. MUSKIE. Mr. President, I have sat here for most of the afternoon, listening to this debate, and it seems to me, by and large, the debate misses the point.
Whether or not particular language is an amendment or an understanding or a reservation does not depend on anyone's definition of what an amendment or a reservation is. With respect to treaties, whether or not particular language is an amendment or an understanding depends upon whether or not it is a proposed change in the treaty or in the document of ratification.
I have in my hand a memorandum which was used in the Foreign Relations Committee which I think. makes the point very clear, and I read this paragraph:
Two types of changes, or additions, are possible: amendments to the texts of the treaties themselves, and amendments to the resolutions of ratification. The former take the same form as amendments to bills; language in the treaties can, for example, be stricken and other language inserted in lieu thereof. The latter are additions to the resolution of ratification which make advice and consent subject to certain conditions and are typically designated reservations, understandings, interpretations, declarations, and statements.
In other words, whether or not particular language — and it can be the same in either case — is an amendment or an understanding depends not on anybody's concept of the substance of such amendments but, rather, on the question of whether or not they are offered to the text of the treaty or to the resolution of ratification.
That is my notion of what the difference is. Since it has not been expressed by anybody else, I thought I would express it.
Mr. President, I ask unanimous consent that the entire memorandum be printed in the RECORD.
There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:
MEMORANDUM
To All Members.
From Norvill Jones.
Subject Treaty procedure; legal effect of changes.
This memorandum, prepared by Mike Glennon, the staff legal counsel, summarizes (1) procedure with respect to the Panama Canal Treaties; and (2) the legal status of amendments, reservations, understandings, etc.
PROCEDURE
Because two different treaties will be considered, two separate resolutions of ratification will be required, although the same Committee report will suffice for each treaty. The resolutions will be introduced by the Chairman prior to the beginning of markup on January 26 and will be referred solely to the Committee on Foreign Relations. (Each will provide, simply, that the Senate advises and consents to the designated treaty.)
Committee rules make no special provision for the handling of treaties. Thus, unless the Committee determines otherwise, the same procedure followed during the consideration of other measures will be followed in considering the treaties.
Two types of changes, or additions, are possible: amendments to the texts of the treaties themselves, and amendments to the resolutions of ratification. The former take the same form as amendments to bills; language in the treaties can, for example, be stricken and other language inserted in lieu thereof. The latter are additions to the resolution of ratification which make advice and consent subject to certain conditions and are typically designated reservations, understandings, interpretations, declarations, and statements. They may by implication amend the treaty without doing so explicitly, or they may not change the legal rights or obligations undertaken; in any event, whether amendments to the treaty or simply to the resolution of ratification, they are equally binding internationally and of full force domestically as "law of the land."
If it approves the treaties. the Committee will report two instruments to the Senate for each treaty: (1) the treaty itself, with or without amendments; and (2) the resolution of ratification, with or without amendments. Treaties are placed on the executive calendar of the Senate in the order reported and are taken up in that order.
Rule XXXVII of the Standing Rules of the Senate (see attached) governs the consideration of treaties. Under that Rule, two distinct sets of proceedings will take place on each treaty. First, the Senate will consider the treaty as in Committee of the Whole. (The Committee of the Whole procedure maybe avoided only by unanimous consent or by suspension of the rules.) While in the Committee of the Whole the Senate will go through the treaty article by article, at which time amendments may be offered. Amendments recommended by the Committee on Foreign Relation will be considered first and then other amendments may be offered. Only actual amendments to the text of the treaty will be in order at this time. Amendments to the resolution of ratification — reservations, understandings, etc. — are not then in order and cannot be offered until the resolution of ratification is presented. At that time the Senate will vote on the amendments made by the Committee of the Whole. (It may do so en bloc only with unanimous consent.)
Thus, amendments adopted in the Committee of the Whole must be voted on a second time. After the senate has voted on amendments adopted in the Committee of the Whole, other amendments to the text of the treaty may be offered.
The second proceeding occurs with respect to the resolution of ratification. Following a wait of at least one calendar day, the Senate will take up the resolution of ratification for the treaty on which the amendment process has been completed. (Amendments which have been adopted to the text of the treaty are automatically incorporated in the resolution of ratification.)
Amendments to the resolution of ratification — reservations, understandings, etc. — may be offered and voted on at this time. As is the case with amendments to the text of the treaty, amendments to the resolution of ratification must be approved by a simple majority. The vote on advice and consent, which requires the approval of two thirds of those present and voting, occurs after the Senate has concluded consideration of the resolution of ratification. All votes on amendments, reservations, understandings, etc. require only a majority vote for approval.
Given the above procedure, the consideration of amendments recommended by the Foreign Relations Committee would occur as follows: the resolution of ratification reported by the Committee will contain, in italics, any recommended amendments to the text of the treaty or to the resolution itself. Amendments to the text of the treaty will be acted upon first; under Rule XXXVII, when the article of the treaty to be amended is read, Committee amendments are considered before other amendments. Amendments proposed by the Committee to the resolution of ratification — reservations, understandings, etc.— cannot be offered until allfloor amendments to the text of the treaty have been disposed of and the resolution of ratification is presented.
The Committee amendments to either the text of the treaty or the resolution of ratification may be considered en bloc by unanimous consent. They may also be moved separately. Thus, although the Committee may, hypothetically, recommend the addition of four understandings, the adoption of the amendments containing those understandings may be moved in four separate motions,and four separate votes would occur.
LEGAL EFFECT OF AMENDMENTS
As discussed above, there are two types of amendments (used generically): amendments to the text of the treaty itself and amendments to the resolution of ratification. Amendments to the resolution of ratification may be designated as follows:
(1) Reservation. A reservation is a form of declaration by a state, when signing, ratifying, or adhering to a treaty, which modifies or limits the substantive effect of one or more of the treaty provisions as between the reserving state and other states party to that treaty. A true reservation asserts specific conditions of a character which (if the reserving state becomes a party to the treaty) effectively qualify or modify the application of the treaty and the relations between the reserving state and the other states party to the treaty. The condition, in effect, adds something of substance to the treaty or takes something of substance from it, and gives notice to other states concerned that the reserving state will not, in that respect, give effect to the treaty except on such conditions.
As noted above, the text of the treaty need not be amended explicitly in order to effect an amendment. An implicit, but equally effective, amendment may be effected through a reservation or understanding (see below). The Senate may provide by reservation, for example, that a certain provision will be without force and effect: such a reservation would be the functional legal equivalent of an amendment to the text of the treaty which strikes out the provision line-by-line.
The latter, obviously, has greater political visibility, which may or may not be desirable inasmuch as that may be a principal determinant of whether a new Panamanian plebiscite is necessary.
(2) Understanding. An understanding is a statement which is not intended to modify or limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or deal with some other matter incidental to the operation of the treaty in a manner other than a substantive reservation. Sometimes an understanding is no more than a statement of policies or principles or perhaps an indication of general procedures for carrying out provisions of the treaty. Understandings are also on occasion called "interpretations".
(3) Declarations and other statements. These are used most often when it is considered essential or desirable to give notice of certain matters of policy or principle, without an intention of derogating from the substantive rights or obligations stipulated in the treaty. "Explanations", "clarifications", and "recommendations" are other designations which occasionally have been used.
Whatever label is attached to what is being done, it is the substance, and not the designation, that determine whether the material is a reservation or a declaration short of a reservation. Thus, a simple understanding, found on analysis to alter the substantive effect of the treaty, may in fact be a reservation. Conversely, material designated a "reservation" may in fact not modify or limit the substantive effect of the treaty and may thus constitute only an understanding. An amendment to the text of the treaty may, accordingly, constitute a reservation or something less, since it may or may not alter the treaty's substantive effect.
Whether material constitutes a reservation is determined by the nonreserving signatory. An amendment to the treaty or to the resolution of advice and consent is thus analogous to a counteroffer in the law of contracts. It may, if the "offeree" so chooses, require that negotiations be reopened, be rejected outright, or, if the offeree accepts it, bring a legally different agreement into effect. The addition of material which Panama chooses to regard as a reservation — or an amendment to the treaty which in the judgment of Panama alters its substantive effect — would therefore give rise to three options on Panama's part: (1) it could reject the modification, in which case the treaty would not take effect; (2) it could request that negotiations be reopened, in which case additional modifications could be proposed by Panama as a quid pro quo; or (3) it could accept the modification.
INTERNATIONAL LEGAL EFFECT
The act of ratification is not complete until "instruments of ratification" are exchanged. In order to be given international legal effect, amendments made by the Senate, or reservations, understandings, or declarations, etc., added by the Senate, must be incorporated in the instrument of ratification given to Panama. If they are so incorporated they will, as noted above, be of identical legal force and effect; the particular denomination attached to each by the United States will be legally irrelevant, since the substance of each will have been accepted by Panama.
In short, if the Senate elects to alter the substantive effect of the treaties, the label under which it chooses to do so — and there are many possibilities — will under domestic and international law be immaterial; each modification, if accepted by Panama, will have the same force and effect as the treaty itself. Whether Panama accepts is, of course, entirely within its discretion and the designation used by the Senate may be taken into account.
RULE XXXVII
EXECUTIVE SESSION — PROCEEDINGS ON TREATIES
1. When a treaty shall be laid before the Senate for ratification, it shall be read a first time; and no motion in respect to it shall be in order, except to refer it to a committee, to print it in confidence for the use of the Senate, to remove the injunction of secrecy, or to consider it in open executive session.
When a treaty is reported from a committee with or without amendment, it shall, unless the Senate unanimously otherwise direct, lie one day for consideration; after which it may be read a second time and considered as in Committee of the Whole, when it shall be proceeded with by articles, and the amendments reported by the committee shall be first acted upon, after which other amendments may be proposed, and when through with the proceedings had as in Committee of the Whole shall be reported to the Senate, when the question shall be, if the treaty be amended, "Will the Senate concur in the amendments made in Committee of the Whole?'
And the amendments may be taken separately, or in gross, if no Senator shall object; after which new amendments may be proposed. At any stage of such proceedings the Senate may remove the injunction of secrecy from the treaty, or proceed with its consideration in open executive session.
The decisions thus made shall be reduced to the form of a resolution of ratification, with or without amendments, as the case may be, which shall be proposed on a subsequent day, unless. by unanimous consent, the Senate determines otherwise; at which stage no amendment shall be received unless by unanimous consent.
On the final question to advise and consent to the ratification in the form agreed to, the concurrence of two-thirds of the Senators present shall be necessary to determine it in the affirmative; but all other motions and questions upon a treaty shall be decided by a majority vote, except a motion to postpone indefinitely, which shall be decided by a vote of two-thirds.
2. Treaties transmitted by the President to the Senate for ratification shall be resumed at the second or any subsequent session of the same Congress at the stage in which they were left at the final adjournment of the session at which they were transmitted; but all proceedings on treaties
shall terminate with the Congress, and they shall be resumed at the commencement of the next Congress as if no proceedings had previously been had thereon.
3. All treaties concluded with Indian tribes shall be considered and acted upon by the Senate in its open or legislative session, unless the same shall be transmitted by the President to the Senate in confidence, in which case they shall be acted upon with closed doors.
Mr. ROBERT C. BYRD. I thank the distinguished Senator from Maine. I think he has adequately answered the question.
But the Senator from Nevada also asked me the question. I would not attempt to answer it definitively, but in a general way I would say that it does not make too much difference what the label is, as to whether it is a declaration or an understanding or an interpretation or a statement or an amendment or a reservation. It is the substance of the language that counts. If it limits in any way or changes in any way the responsibilities, liabilities, and duties of the parties to the treaty, then, in effect, it amends the treaty.
A reservation can have the same substantive effect as can an amendment to the treaty, and a reservation would be offered to the resolution of ratification.
Language might be offered which would be denominated as an understanding when, in truth, it might be a reservation, depending upon the substance of the language. So it matters not so much what it is called as what it does. A rose by any other name smells just as sweet.
So it is an amendment. I maintain that the language that the leadership has offered here today is, without question, an amendment to the treaty and is in order.
Now, Mr. President, if I may proceed—
Mr. LAXALT. Mr. President, will the Senator yield for just a moment or two? These are very important questions to me and, I am certain, to a number of my colleagues. I know that the language does not make much difference whether it is contained in an amendment, a reservation, or an understanding. That is not my problem. My problem concerns the legal effect.
If a reservation or an understanding is tied to the document of ratification in terms of legal effect, does that change the terms of the treaty?
Mr. ROBERT C. BYRD. It could very well, depending upon the substance of the language that is in the reservation.