The actions and comments of senior members of the Trump administration are causing growing concern and tension in Panama. In an address to Congress in March, President Donald Trump announced that his administration “will be reclaiming the Panama Canal.” Panamanian President Jose Raul Mulino quickly responded, accusing Trump of lying. After Trump’s speech, NBC News reported that the White House had directed the U.S. military to develop plans for “reclaiming” the Canal, including options ranging from intensified security cooperation with Panama to U.S. military intervention. According to officials quoted in the report, a U.S. invasion of the country was “unlikely” but would come under serious consideration if a larger American military presence in Panama was unable to achieve Trump’s goal of “reclaiming” the waterway. Already in January, Trump refused to rule out the use of force to seize the Canal. After Defense Secretary Pete Hegseth visited the country in early April, Trump made public that the United States had “moved a lot of troops to Panama.” In response to these developments, opposition leaders in Panama accused the United States of conducting a “camouflaged invasion.”
These threats to Panamanian sovereignty arise from the Trump administration’s claims that China maintains too much control and influence of Canal operations, something both China and Panama deny. The administration fears China could close the Canal to U.S. shipping in the event of a conflict with the United States. Mulino has condemned American threats to use force against his country, as have other world leaders. But some have claimed the United States has a legal right to conduct a unilateral military intervention in Panama. In a January piece for the American Enterprise Institute (AEI), law professors John Yoo and Robert Delahunty argued that the United States has a right to intervene in Panama based on the U.S.-Panamanian Treaty concerning the permanent neutrality and operation of the Canal. Such claims constitute an ill-founded and dangerous misinterpretation of the Neutrality Treaty. They disregard that consent by Panama to a right to intervene would have to be clearly expressed – a requirement that is not met by the Neutrality Treaty.
A Controversial Visit
During his April visit, Hegseth signed a memorandum of understanding with the Panamanian Minister of Public Security Frank Abrego on an increased U.S. troop presence in the country. Hegseth also signed a “framework agreement,” according to which the two countries would work out a scheme to ensure that U.S. warships and auxiliary ships may transit the Canal “cost-neutral.” The scheme is expected to still require the payment of transit tolls by U.S. warships to ensure compliance with the Neutrality Treaty’s non-discrimination clause (Article 2), but provide for a “compensation […] for services” by the warships in security matters in return. Although Hegseth called the trip “historic” and framed it as mutually beneficial to both countries, Panamanian leaders have faced serious backlash for it at home. Mulino’s approval rating was already deteriorating due to his handling of the crisis with the United States. Now, labor leaders are calling the government’s signing of the new agreements an “act of treason.”
Complicating matters, there was a discrepancy between the Spanish and English versions of a joint statement between Mulino and Hegseth. The Spanish version contained a quote by Hegseth that recognized the “leadership and inalienable sovereignty of Panama over the Panama Canal and its adjacent areas,” but the sentence was absent in the U.S. version. It remains unclear why the Trump administration omitted the statement. In the meantime, Panama has asked it to correct the divergence. During a press conference on his trip, Hegseth did not directly answer a question about the discrepancy, causing the impression that he wanted to evade the issue. He did affirm the U.S. commitment “to protecting Panamanian sovereignty [and] to secure the sovereignty of the Panama Canal.” Yet, it remains notable that Hegseth mentioned the sovereignty “of the Panama Canal” and not “of Panama over the Panama Canal.” This either careless or deliberately ambiguous language has put the Panamanian government under a lot of pressure (see here and here).
The evasive maneuvering by the Trump administration and heightened anxiety about U.S. acknowledgment of Panama’s sovereignty over the Canal may seem surprising given that the United States has explicitly recognized it in the Panama Canal Treaty, which regulated the Canal’s operation until its handover to Panama. But today, any expression of ambivalence about Panamanian sovereignty raises concerns due to Trump’s threats to use force to get what he wants.
In this regard, another statement by Hegseth has so far received little attention. When asked by a reporter whether the United States had provided Panama with assurances that it would not intervene militarily, he did not answer the question. Instead, he only emphasized that the United States was “focused on working together with [Panama] to ensure that malign Chinese influence is not allowed to take any additional hold and is, in fact, expelled from the Panama Canal and the Panama Canal area.” Although the Trump administration appears to be focused on stepping up security cooperation with Panama, Hegseth, like Trump, has not ruled out military intervention and this threat against Panama continues to hang like a sword of Damocles over U.S.-Panamanian relations.
The Neutrality Treaty
Trump and those making the case for the legality of a potential U.S. military intervention in Panama seem to rely on a purported authorization they say exists in the Neutrality Treaty. The two countries signed the agreement in 1977, along with the Panama Canal Treaty. Together they are referred to as the Torrijos–Carter Treaties, named after the signatories: President Jimmy Carter and Panamanian General Omar Torrijos. The Neutrality Treaty was created to govern U.S.-Panamanian relations regarding the Canal after the United States handed over control of it on Dec. 31, 1999. It established a regime of neutrality, meaning that the Canal shall remain secure and open to peaceful transit by vessels of all nations during times of peace and war without any discrimination.
Trump seems to have repeatedly alluded to the treaty. On social media, he has claimed violations of the “principles, both moral and legal, of [the Canal’s handover to Panama].” In his inaugural address, Trump alleged that “the purpose of our deal and the spirit of our treaty has been totally violated.” In their piece for AEI, Yoo and Delahunty wrote:
Trump has the legal authority to pursue American foreign policy interests toward the Canal, even if that means […] re-asserting U.S. sovereignty.
They point to articles in the Neutrality Treaty as the source for this authority, writing, “It is reasonable to read these provisions as establishing the right of the United States to defend the Canal against any threat, including but not limited to an ‘armed attack,’ to the Canal’s neutrality or security.”
A careful reading of the Neutrality Treaty, however, shows it does not give the United States the right to take unilateral military action in Panama. Articles 4 and 5 of the treaty concern the protection of the Canal. According to Article 4, both countries “agree to maintain the regime of neutrality […], which shall be maintained in order that the Canal shall remain permanently neutral.” Article 5 stipulates that after the expiration of the Panama Canal Treaty in 1999, “only the Republic of Panama shall operate the Canal and maintain military forces, defense sites and military installations within its national territory.” Three key issues are at stake here: firstly, can there be a treaty-based authorization to intervene at all? If this is the case, does the Neutrality Treaty provide sufficiently clear consent? And thirdly, how broad is such a right to intervene?
A Unilateral Right to Take Military Action?
As to the first issue, treaty-based invitations to intervene have existed at least since the beginning of the 20th century but have developed from being a tool of control in bilateral relations to a mechanism in regional multilateral frameworks for civilian protection and upholding democracy. For example, after the military coup in Niger in 2023, the Economic Community of West African States (ECOWAS) threatened to intervene militarily if the constitutional order was not fully restored and the ousted president reinstated. A question at the time was whether ECOWAS had the legal authority to intervene based on Article 25 of the Lomé Protocol, in which treaty signatories (including Niger) had arguably given anticipatory consent to military intervention “in the event of an overthrow or attempted overthrow of a democratically elected government.”
Three schools of thought have emerged on the question of whether anticipatory consent in itself could form the legal basis for a military intervention. The first view categorically rejects the possibility of anticipatory consent without additional ad hoc consent by the state affected by an intervention relying on the prohibition on the use of force in Article 2(4) of the United Nations Charter. Law professor Alonso Illueca seems to subscribe to this view when he argues that the Neutrality Treaty “cannot allow for an open-ended authorization of the use of force against the territorial integrity or political independence of [Panama].” There is broad support in scholarship, however, for the position that in the case of a treaty-based invitation to intervene, anticipatory consent renders the prohibition on the use of force as inapplicable as ad hoc consent. The International Court of Justice (ICJ) appears to agree with this proposition too in its Case Concerning Armed Activities on the Territory of the Congo (paras. 92-105). According to this view, the treaty provision providing such anticipatory consent would not be in conflict with the UN Charter because of the inapplicability of Article 2(4) of the UN Charter due to consent and therefore not be overruled by Article 103 of the UN Charter, which stipulates the primacy of the Charter over conflicting treaty provisions. The broadest view, thus, accepts anticipatory consent as sufficient, but makes the withdrawal of consent conditional on compliance with procedural treaty provisions on withdrawal. This is not convincing and, correctly, rejected by the predominant view. Given the fundamental character of sovereignty, the principle of non-intervention, and the prohibition on the use of force, making the withdrawal of consent conditional on such procedural treaty provisions that do not explicitly derogate from them would be too strict and overridden by Article 103 of the UN Charter. The ICJ also seems to follow this line of reasoning (paras. 47, 51). Consequentially, the predominant view sees anticipatory consent as sufficient, but accepts ad hoc withdrawal of consent at any time notwithstanding procedural treaty rules (see, e.g., here and here). A strong case therefore can be made that a treaty like the Neutrality Treaty may provide for anticipatory consent subject to ad hoc withdrawal by Panama. However, due to the focus of the debate on multilateral frameworks, it could be questioned whether the same arguments are applicable to clauses enabling domination in bilateral relations. But this assessment is beyond the scope of this post.
Assuming that a treaty could provide anticipatory consent, it would need to be clearly expressed. Here, a more in-depth study of the Neutrality Treaty is required. Consent does not need to be expressis verbis, but the United States would have to prove consent from Panama, which cannot be presumed. Given the implications for fundamental norms such as sovereignty and the prohibition on the use of force, free and unambiguous consent must be established based on conclusive evidence. The wording of Article 4 that both parties “agree to maintain the regime of neutrality” does not provide such evidence. Indeed, the issue of a right to intervene was highly controversial around and after the signing of the Torrijos-Carter-Treaties on Sept. 7, 1977. On Oct. 14, 1977, Carter and Torrijos published a joint statement of understanding consisting of two parts. In the first, they declared that
each of the two countries shall […] defend the Canal against any threat to the regime of neutrality, and consequently shall have the right to act against any aggression or threat directed against the Canal or against the peaceful transit of vessels through the Canal.
However, the second part added that:
[t]his does not mean, nor shall it be interpreted as, a right of intervention of the United States in the internal affairs of Panama. Any United States action will be directed at insuring that the Canal will remain open, secure and accessible, and it shall never be directed against the territorial integrity or political independence of Panama.
The statement was later incorporated into the treaty as an amendment and accepted by both parties as a binding declaration of interpretation. Its content was, however, contradictory. Although the first part suggested a unilateral right to defend the Canal against any threat, the second section reiterated the principle of non-intervention. The reference to the “territorial integrity or political independence” invokes the language of Article 2(4) of the UN Charter. This language was not meant to restrict the scope of the prohibition on the use of force. Thus, the statement could not clearly establish consent by Panama. That the debate remained unresolved was illustrated by further controversies about reservations, conditions, and declarations.
Illueca has argued that U.S. reservations had no legal value. But this seems to be the wrong focus. Panama has in fact accepted all U.S. reservations and understandings included in the instruments of ratification as binding and the United States accepted two Panamanian understandings to be binding while deeming one declaration to be purely political in nature. The more relevant question therefore is, what these documents mean and whether they can unambiguously establish consent by Panama.
In March and April 1978, the U.S. Senate considered the treaties for advice and consent. It added two reservations and an understanding trying to clarify its understanding of Article 4 of the Neutrality Treaty. In the first “DeConcini reservation” in March, the Senate added that:
if the Canal is closed, or its operations are interfered with, the United States and the Republic of Panama shall each independently have the right to take such steps as each deems necessary […], including the use of military force in the Republic of Panama, to reopen the Canal or restore the operations of the Canal, as the case may be.
This was accompanied by an understanding that:
either of the two Parties to the Treaty may […] take unilateral action to defend the Panama Canal against any threat, as determined by the Party taking such action.
These statements suggested a broad, discretionary right of the United States to take military action. Unsurprisingly, Panama understood it exactly in this way and rejected it. Therefore, the U.S. Senate reconsidered the issue in April and added the “Church reservation” clarifying that:
[p]ursuant to its adherence to the principle of non-intervention, any action taken by the United States in the exercise of its rights to assure that the Panama Canal shall remain open, neutral, secure, and accessible, pursuant to the provisions of the [Neutrality Treaty], shall be only for the purpose of assuring that the Canal shall remain open, neutral, secure, and accessible, and shall not have as its purpose or be interpreted as a right of intervention in the internal affairs of the Republic of Panama or interference with its political independence or sovereign integrity.
The language resembles that of the statement of understanding between Carter and Torrijos. Both sides agreed that the reservation clarified and took precedence over the misunderstandable meaning of the “DeConcini reservation.” Panama understood it to reject a U.S. right to unilateral intervention “in any way.” In the United States, the interpretation of the “Church reservation” was more ambivalent. During the Senate debate, some claimed a U.S. right to intervene unilaterally limited to the purpose of ensuring that the Canal remained “open, neutral, secure, and accessible,” while others criticized the ambiguous language or emphasized non-intervention, Panamanian sovereignty, and that the UN Charter and the Organization of American States (OAS) Charter would prevail.
Carter supported a limited right of intervention vis-à-vis senators, but emphasized non-intervention and sovereignty vis-à-vis Panama (here and here). The Panamanian understandings accepted by the United States also emphasized that both countries were bound by Articles 1(2) and 2(4) of the UN Charter as well as Articles 18 and 20 of the OAS Charter, which enshrine peaceful relations, the prohibition on the use of force and non-intervention, and that any action “will be effected” consistent with mutual respect and co-operation. While some in the U.S. debate seem to have had the understanding that the “territorial integrity or political independence” would not be affected if an intervention would be limited to the “protection” of the Canal, this was a self-contradictory position that cannot be reconciled with the meaning of the terms in Article 2(4) of the UN Charter. An intervention in internal affairs encompasses any coercive interference with a country’s political decision (see here and here). The contradictory language was precisely the result of a political compromise that allowed both countries to claim victory while not resolving the hotly contested issue. Ultimately, such ambiguous language does not provide a sufficiently clear expression of consent. Instead, Panama has consistently asserted its interpretation of the materials excluding a right to intervene for any purpose whatsoever. Thus, the treaty does not provide the United States such a right. Therefore, the prohibition on the use of force and the principle of non-intervention apply without any restriction.
The third issue of the scope of a right to intervene will be addressed very briefly. Even proponents of a right to intervene would have to recognize its very limited nature, excluding issues such as the political allegiances of the government. Furthermore, proof of any breaches of the neutrality regime lacks as the presence of companies connected to China around the Canal has not affected its neutrality (see here and here).
Any (threat of a) military intervention in Panama would violate fundamental international norms and find no justification in the Neutrality Treaty. These illegal threats have forced Panama to engage in appeasement efforts toward the United States, including the recent agreements on an increased U.S. military presence in the country and “cost-neutral” transit for U.S. warships and auxiliary ships. Before the most recent concessions, Panama had already aligned itself with the United States at the UN and withdrawn from China’s Belt and Road initiative. Now, it appears that two ports next to the Canal could be sold from a Hong Kong company to an investor group led by U.S.-based BlackRock – that is if opposition by the Chinese government or a recent audit into the operator of the ports do not prevent it. Meanwhile, U.S. threats of using force to establish control over the Canal have created animosity toward the United States in Panama and have undermined the standing of a U.S.-friendly president inside his own country. As long as the threat of American intervention remains, true partnership and cooperation between the two countries seems unlikely.
