811F.06/1–1750
The Under Secretary of State (Webb) to the Secretary of Defense (Johnson)
My Dear Mr. Secretary: Reference is made to your letter under date of April 14, 1949, and to continuing discussions between representatives of this Department and of the Department of Defense, regarding the obligation of the United States to afford equality of employment opportunity and treatment to Panamanian citizens in the Canal Zone. In the communication and discussions under reference, the opinion of the Department of State has been requested with respect to the extent of the United States commitment in this matter.
There is enclosed a memorandum1 setting forth the Department’s views on this problem, which is of such fundamental importance in the relations between the United States and Panama. A brief summary of these views follows.
The Department considers that the legal validity of the commitment regarding equality of employment opportunity and treatment is not affected by the fact that it is embodied in an ancillary exchange of notes rather than in the body of the 1936 Treaty of Friendship and Cooperation with Panama. From the point of view of United States constitutional law there might be important differences. In international law, however, treaties and executive agreements both constitute equally binding obligations on the Nation. The binding effect of international law takes place as soon as the state has properly consented to the obligation and does not depend upon the form of the particular undertaking.
The note of the United States Government recognizes the existence, and pledges the continuance, of a public policy based on “the principle of equality of opportunity and treatment set down” in various Executive and other Orders, including the Order of the Secretary of War [Page 745] of December 23, 1908, and Executive Orders of February 2, 1914 and February 20, 1920. The concrete provisions of these and other Orders exhibit a policy to place Panamanians in a position of equality with American citizens in matters of eligibility for employment and of treatment during employment. The concurrences of the President, the Attorney-General and the Congress with this policy are discussed in the enclosed memorandum. There are also discussed in detail the discretion retained by the United States in the implementation of this policy and the reservations which qualify the commitment.2
As was agreed at the September 12 meeting of representatives of the State and Defense Departments, it is not possible in the accompanying general statement of position to cover the extent of the United States commitment in every problem which may arise in connection with the study of Canal Zone labor problems now being conducted by the Personnel Policy Board of the Department of Defense. The Department, however, is in full accord with the purposes of the current study and welcomes the opportunity for close cooperation in this important matter with representatives of the Defense Department. When questions occur with respect to the application of the commitment to specific matters, such as leave, retirement and other labor policies, the Department will endeavor to provide interpretations on an ad hoc basis.
Sincerely yours,
- Not printed, but see footnote 2, below.↩
- On the question of whether commitments in the cited note applied only to the mentioned employees of the Panama Canal and the Panama Railroad or to all Panamanian employees, the memorandum said in part: “It is one thing to say that the commitment does not specifically refer to the employees of the armed forces. It is another to say that the military service should not be expected to observe the commitment. The scope of the word ‘government’ is by itself too embracing to permit a distinction between the various branches or agencies of this Government and, according to the record of the negotiations, the United States negotiators did not indicate any intention to limit the commitment in this respect.” (811F.06/1–1750)↩