President Donald Trump cannot take the Panama Canal — at least not legally — as he would be violating every single treaty that the U.S. has come into with Panama since 1945, international law and national security experts told WLRN.
The U.S. handed the canal to Panama 25 years ago under a treaty — and most experts agree the small Central American country has run it quite effectively. It handles 6% of the world’s maritime cargo traffic with two thirds of it coming to or from U.S. docks like Port Miami and Port Everglades.
Trump insists that U.S. ships are being overcharged for using the canal and that China now operates it, not Panama. While both assertions are false, it does raise a big reason why Trump wants to seize the canal: China has recently invested billions in infrastructure projects in Panama, which has alarmed Washington. All of which is why it’s no coincidence that Trump’s Secretary of State, Marco Rubio, will make Panama his first foreign visit this week.
Meanwhile, Trump has nominated Miami-Dade County Commissioner Kevin Marino Cabrera as the next U.S. Ambassador To Panama.
During an interview Friday on WLRN’s South Florida Roundup, two experts discussed the future of the Panama Canal and Trump's quest to take control of it. Joining WLRN's Tim Padgett was Alonso Illueca, a Panamanian expert on international law with the Universidad Santa Maria La Antigua in Panama City, and Leland Lazarus, associate director of national security at Florida International University’s Gordon Institute for Public Policy and an expert on China’s presence in Latin America.
The interview has been edited for brevity and clarity.
READ MORE: Rubio will visit Central America, including Panama, on first trip abroad as secretary of state
PADGETT: Alonso Illueca, let’s examine the claim that President Trump made that “China now operates the canal.” Secretary of State Marco Rubio echoed that assertion in his confirmation hearings – insisting that because China operates so much important infrastructure around the canal, it might as well operate the canal itself. Do Trump and Rubio have a point, or is this exaggeration?
ILLUECA: I do believe it's an exaggeration because we have to draw a clear distinction between influence and operation. [Panama’s] Comptroller General [Anel Bolo Flores] a few days ago called Hutchison's Panama ports in Cristobal and Balboa a “colonial enclave that replaced the Americans.” In that regard, there is certainly a concern, but there's also a material fact that we cannot ignore, that the notary of the regime that U. S. and Panama built after 1977 is basically a military alliance to protect the canal. And it is not only protected by the U.S. and Panama, it's also protected by 40 other states, including the Republic of China, that is Taiwan.
Leland Lazarus, doesn’t it seem to a certain extent that the U.S. – including the first Trump administration – has itself to blame quite a bit for not trying harder to partner with Panama in projects like infrastructure at the same moment China started jumping into the country a decade or so ago?
LAZARUS: I think that over the past several decades, Latin America and the Caribbean has been deprioritized in terms of U. S. engagement. Of course, the priority has been the Indo-Pacific. But I think that is certainly changing. I think it's quite heartening that Secretary Marco Rubio's first visit abroad will be to Panama in order to really start to strengthen the U. S. engagement in Panama.
Alonso Illueca, let’s look more closely at that threat Trump has made to take back the Panama Canal – and even use the U.S. military to do it. What are the international law obstacles he faces – including the 1977 treaty that transferred the canal from the U.S. to Panama – that would keep Trump from ever doing that?
ILLUECA: Legally speaking, he cannot do it in the sense that he will be violating every single treaty that the U. S. has come into with Panama since 1945. But I will also include the Brian Kellogg Pact and also the U. N. Charter. The U. N. Charter is very clear: you cannot use force or threaten to use force against the territorial integrity or political independence of any state. So, it's basically nonsense, no state will want to sign any type of treaty with the U.S. I will say that we will be witnessing the undoing of the liberal international order in the sense that the U.S. is basically emulating what President Xi Jinping is doing in the South China Sea. And of course, what Vladimir Putin is doing in Crimea.
But there is in the 1977 treaty a provision that allows the U.S. to use its military to preserve the canal’s geopolitical neutrality, right? Is that something you think Trump might exploit in all of this?
ILLUECA: There is a joint commitment between Panamanians and Americans to defend the canal. That clause that everybody is mentioning in the media is called the DeConcini Amendment, which is actually a unilateral interpretation made by the U.S. Senate. As a matter of international law, that has no legal value, because that would basically contravene the U.N. Charter, and in the event of a conflict between the U.N. Charter and any other treaty, the U.N. Charter prevails, as established in Article 103 of the State Instrument. I do get that from the American perspective, there is kind of an argument to be drawn upon in the sense that you could understand in some sort of a way that you have a unilateral right of intervention, but that was never the purpose of any of the texts adopted jointly by Panama and the U.S. The only other restoration was one joint design between General Torrijos and President Jimmy Carter, which states that the only way in which the U. S. can use military force, is to deter some type of attack to the canal against foreign adversaries, not against the Panamanian people, which aren't doing anything to deserve this.
Leland Lazarus, from a national security standpoint, short of taking the canal back, which as we’ve said looks very unlikely, what can the U.S. do to push back on China’s presence and influence at a site as geostrategic as the Panama Canal – especially if there is a concern that China’s influence could eventually compromise that geopolitical neutrality the canal is supposed to represent?
LAZARUS: I would say to boost Panama's ability to stop potential surveillance on the part of the People’s Republic of China, right? Espionage. We've seen in other areas in the region where when a Chinese company builds the port, you also see ZPMC cranes, right? You see tech with port scanners. You see Huawei with telecommunications and DaHua and Hikvision for security cameras. All that information can go back to Beijing and can be used for nefarious purposes.
You can listen to the full conversation above or wherever you get your podcasts by searching: The South Florida Roundup.
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