Agreement which will expire on October 3. We appreciate the desirability of such a unilateral statement and we are confident that the Soviet Union understands that we expect them to exercise similar restraint.

It is our view that under existing circumstances a unilateral policy declaration along the lines you indicated would not constitute an international agreement. We believe such a declaration would be preferable to a joint statement which would raise questions as to whether congressional approval would be necessary. In our opinion, no such approval would be required for the nonbinding arrangement you have outlined.

We sincerely appreciate the continuing close consultation with you on SALT-related matters.

Dept. of State File No. P78 0019-542.

Chapter 6

STATE TERRITORY, JURISDICTION, AND
JURISDICTIONAL IMMUNITIES

§ 1 State Territory and Territorial Jurisdiction Transfer of Territory With Mexico

In a ceremony at the Department of State in Washington, D.C., Secretary of State Vance and Foreign Secretary Santiago Roel signed on May 26, 1977, an Act approving Minute 257 of the International Boundary and Water Commission and thus confirmed that the relocations of the channel of the Rio Grande stipulated in paragraphs A, B, and C of Article I of the Treaty of November 23, 1970, which entered into force April 18, 1972 (TIAS 7313; 23 UST 371), have been completed. By virtue of their approval, jurisdiction over some 2,340 acres was transferred between the two countries, and for the first time since soon after the U.S.-Mexico Boundary Survey of 1853, the Rio Grande marks the undisputed international boundary at all points on its entire international reach from El Paso, Texas, to the Gulf of Mexico.

Dept. of State Press Release No. 232 (May 26, 1977). For details concerning the U.S.-Mexican Boundary Treaty of 1970, see S. Ex. B, 92d Cong., 1st Sess. Art. I of the 1970 Boundary Treaty reads as follows:

ARTICLE I

In order to resolve the pending boundary cases of the Presidio-Ojinaga Tracts, the Horcon Tract, Beaver Island, and islands, in which the territory of one of the Contracting States has been placed on the opposite bank of the Rio Grande, and to restore this river as the international boundary, the United States and Mexico have decided to modify the position of the Rio Grande in certain reaches, in accordance with the following terms:

A. To change the location of a section of the channel of the Rio Grande in the area of the Presidio-Ojinaga Tracts, so as to transfer from the north to the south side of the Rio Grande an area of 1606.19 acres (650 hectares). This relocation shall be effected so that the middle of the new channel follows the alignment shown on the map of the International Boundary and Water Commission, United States and Mexico (hereinafter referred to as the "Commission"), entitled Relocation of the Rio Grande in the Presidio—Ojinaga Tracts, attached to and forming a part of this Treaty.

B. To change the location of the channel of the Rio Grande upstream from and near Hidalgo-Reynosa, so as to transfer from the south to the north of the Rio Grande an area of 481.68 acres (194.93 hectares). This relocation shall be effected so that the middle of the rectified channel follows the alignment shown on the Commission's map entitled Relocation of the Rio Grande Up

stream from Hilalgo-Reynosa, attached to and forming a part of this Treaty. C. To change the location of the channel of the Rio Grande downstream from and near Presidio-Ojinaga, so as to transfer from the south to the north of the Rio Grande an area of 252 acres (101.98 hectares). This relocation shall be effected so that the middle of the rectified channel follows the alignment shown on the Commission's map entitled Relocation of the Rio Grande Downstream from Presidio-Ojinaga, attached to and forming a part of this Treaty. D. Once this Treaty has come into force and the necessary legislation has been enacted for carrying it out, the two Governments shall determine, on the basis of a recommendation by the Commission, the period of time appropriate for each of them to carry out the following operations:

(1) The acquisition, in conformity with its laws, of the lands to be transferred to the other and of the rights of way for the new river channels; (2) The orderly evacuation of the occupants of the lands referred to in paragraph D (1) of this Article.

E. The changes in location of the Rio Grande referred to in paragraphs A, B and C of this Article, shall be executed by the Commission as soon as practical in accordance with the engineering plans recommended by it and approved by the two Governments. The cost of these changes in location shall be equally divided between the two Governments, through an appropriate division of work recommended by the Commission in the same engineering plans.

F. On the date on which the two Governments approve the Commission's Minute confirming the completion of the relocations of the channel of the Rio Grande provided for in paragraphs A, B and C of this Article, the change of location of the international boundary shall be effected in each case and the middle of the new channels of the Rio Grande and of the present channels north of the Horcon Tract and north of Beaver Island shall become the international boundary; and consequently the following territorial adjustments shall take place:

(1) By reason of the rectification referred to in paragraph A of this Article, there shall pass from the north to the south of the Rio Grande within the territory of Mexico, 1606.19 acres (650 hectares) in the Presidio-Ojinaga Tracts. (2) By reason of the rectification referred to in paragraph B of this Article, there shall pass from the south to the north of the Rio Grande 481.68 acres (194.93 hectares) to form a part of the territory of the United States. This transfer is in recognition of the fact that the Horcon Tract and Beaver Island, located south of the Rio Grande, comprising a total area of 481.68 acres (194.93 hectares) now under the sovereignty of the United States shall pass to and become part of the territory of Mexico.

(3) By reason of the rectification referred to in paragraph C of this Article, there shall pass from the south to the north of the Rio Grande 252 acres (101.98 hectares) to form a part of the territory of the United States. This transfer is in recognition of the fact that, upon the adoption of the new boundary in accordance with Article II of this Treaty, Mexico will receive a greater number and acreage of islands than the United States.

U.S.-Canadian Boundaries

On March 3, 1977, David A. Gantz, Assistant Legal Adviser for European Affairs of the Department of State, wrote Richard L. Fowler, Director of the Natural Resources Division of the U.S. Department of Agriculture, a letter concerning the intention of the U.S.Canadian International Boundary Commission to clear the boundary vista between the United States and Canada in areas of the State of Washington and the Province of British Columbia. The proposed action would involve clearing a ten-foot strip on each side of the boundary line. On the U.S. side, the strip would run through an area

designated as the Pasayten Wilderness pursuant to 16 U.S.C. 90e-2. Portions of Mr. Gantz' letter concerning the authority of the International Boundary Commission to keep this boundary vista open follow:

*

[T]he International Boundary Commission (IBC) is a binational organization charged with the delineation, demarcation, and maintenance of the international boundary between the continental United States border States, Alaska and Canada (see 3 Whiteman, Digest of International Law 722 et seq.).

Stemming from an agreement of the Commissioners on December 28, 1908, the 1908 Treaty was implemented in part by a decision "that the boundary through timbered areas should be further marked by a vista along the line of sufficient width to give a cleared 20-foot sky line." Thus the IBC continued the practice of earlier surveyors which permits ready identification of the boundary in forested areas on land and from the air, and assists in accurate surveying.

The Commission's principal border-wide responsibilities at the present time derive from article IV of the 1925 Treaty which in relevant part provides as follows:

And whereas boundary monuments deteriorate and at times are destroyed or damaged; and boundary vistas become closed by the growth of timber;

And whereas changing conditions require from time to time that the boundary be marked more precisely and plainly by the establishment of additional monuments or the relocation of existing monuments;

The Contracting Parties, in order to provide for the maintenance of an effective boundary line between the United States and the Dominion of Canada, as established or to be established, and for the determination of the location of any point thereof, which may become necessary in the settlement of any question that may arise between the two Governments hereby agree that the Commissioners appointed under the provisions of the Treaty of April 11, 1908, are hereby jointly empowered and directed: to inspect the various sections of the boundary line between the United States and the Dominion of Canada and between Alaska and the Dominion of Canada at such times as they shall deem necessary; to repair all damaged monuments and buoys; to relocate and rebuild monuments which have been destroyed; to keep the boundary vistas open; . ... [and] to maintain at all times an effective boundary line.

While not specifying a twenty-foot strip centered on the boundary, article IV was premised on the longstanding practice of the Commission regarding the twenty-foot "sky line vista."

The United States has not enacted implementing legislation conferring on the Commission or its employees the right to enter onto private lands to clear the boundary vista or otherwise discharge its responsibilities. Nor is the Commission specifically authorized under United States law to prohibit construction or other activity in the United States within ten feet of the boundary on privately held

land. As described in an extensive December 1, 1961, memorandum of law of the Lands Division of the Department of Justice (AWC: ESL 33-1-01-01), the history of the IBC provides evidence of almost unbroken cooperation by United States private landowners in permitting the IBC to perform its functions on private land adjacent to the boundary. Many of the areas abutting the boundary were and are constituted public lands of the United States, and it has been considered that the reservation effected by Presidential Proclamations No. 810 of June 15, 1908, and No. 1196 of May 3, 1912, of such lands lying within sixty feet of the boundary is adequate to ensure that all Federal agencies sharing jurisdiction over the use and management of such lands are on notice regarding the special character of the boundary strip and the activities which may be carried on therein.

In Canada, however, the IBC has been the subject of specific legislation to assist it in its work (Ch. 31, 8-9 Elizabeth II, assented to July 7, 1960). This law authorizes the IBC, its officers, employees and agents, at any time, in Canada, to: (a) pass over the land of any person to gain access to or survey the boundary; (b) erect and maintain boundary monuments on the land of any person; and (c) clear from the land of any person trees and underbrush to maintain a vista ten feet in width from the boundary. The law also authorizes the destruction at the cost of the owner of any structure thereafter erected within ten feet of the boundary without the permission of the IBC, provides for criminal penalties for various acts of interference with the work of the Commission, and submits the Canadian Government to liability for any tortious conduct of the Canadian member of the Commission while acting within the scope of his employment.

Subsequent consideration by this Department of similar legislation in the United States prompted the above-cited Justice Department legal memorandum. However, the absence of serious problems in carrying out Commission functions on privately held land for over fifty years, the potential costs of acquiring appropriate interests in such land for the purposes of any legislation in light of the requirements of the Fifth Amendment, and the existence of the reservation of a border strip in the preponderance of publicly owned lands along the land boundary, were apparently disincentives to pursuing this initiative beyond internal executive branch discussion.

Dept. of State File No. P77 0033-1325. The International Boundary Commission was created pursuant to the Treaties between the United States and the United Kingdom concerning the Canadian International Boundary signed Apr. 11, 1908 (TS 497; 35 Stat. 2003; 12 Bevans 297; entered into force June 4, 1908), and in regard to the Boundary between the United States and Canada signed on Feb. 24, 1925 (TS 720; 44 Stat. 2102; 6 Bevans 7; UNTS 239; entered into force July 17, 1925).

Berlin

After a Four Power summit meeting in London on May 9, 1977, the heads of state and of Governments of the Federal Republic of Germany, France, the United Kingdom, and the United States issued a