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

joint statement "relating to the situation in Germany and particularly Berlin" entitled "Declaration on Berlin." The body of this statement as issued by the Office of the White House Press Secretary in Geneva, Switzerland, on May 9 reads as follows:

The four governments expressed their satisfaction at the positive effect which the Quadripartite Agreement of September 3, 1971, has had on the situation in and around Berlin. They agreed that the strict observance and full implementation of the Agreement, which are indispensable to the continued improvement of the situation, are essential to the strengthening of détente, the maintenance of security and the development of cooperation throughout Europe. The Governments of France, the United States and the United Kingdom noted that détente would be seriously threatened if any one of the four signatory powers to the Quadripartite Agreement were not to respect fully the undertakings confirmed by the signatory powers in the Agreement and in the Quadripartite Declaration of November 1972.

The three Powers recalled that the Quadripartite Agreement was based explicitly on the fact that quadripartite rights and responsibilities and the corresponding wartime and post-war four Power agreements and decisions were not affected. They reaffirmed that this status of the special area of Berlin could not be modified unilaterally. The three Powers will continue to reject all attempts to put in question the rights and responsibilities which France, the United States, the United Kingdom and the Soviet Union retain relating to Germany as a whole and to all four sectors of Berlin.

The four governments recalled that one of the essential elements in the Quadripartite Agreement is the affirmation that the ties between the Western Sectors of Berlin and the F.R.G. should be maintained and developed in accordance with the relevant provisions of the Agreement. This conforms with the interests and wishes of the people directly concerned. In this regard, the three Powers took special note of efforts by the Federal Republic of Germany, taking into account the provisions of the Quadripartite Agreement relevant to its responsibilities for representing the interests of the Western Sectors of Berlin abroad, to enable the Western Sectors of Berlin to profit from the practical benefits of East-West relations.

The four governments pledged their cooperation in maintaining a political situation conducive to the vitality and prosperity of the Western Sectors of Berlin. The three Powers expressed their appreciation of the efforts of the Federal Republic of Germany and the Senat of Berlin to ensure that the Western Sectors remain an attractive place in which to invest and to work. They reaffirmed their commitment to the city's security, which is an indispensable prerequisite for its economic and social development.

13 Weekly Comp. of Pres. Doc. 687-688 (May 9, 1977). Participants in the Four Power summit meeting were President Carter. Valery Giscard d'Estaing, President of the Republic of France, Helmut Schmidt, Chancellor of the Federal Republic of Germany, and James Callaghan, Prime Minister of the United Kingdom of Great Britain and Northern Ireland.

Botswana

On May 25, 1977, the U.N. Security Council adopted unanimously without a vote Resolution 406 (1977) in which the Security Council noted, inter alia, the "statement of the Minister for External Affairs of Botswana [Archibald Mogwe] on the continued attacks and acts of provocation by the illegal racist regime of Southern Rhodesia against Botswana" and expressed "full support for the Government of Botswana in its efforts to safeguard its sovereignty, territorial integrity and independence . . . to provide Botswana with the financial and material help it urgently needs; . . . ."

In his statement in the Security Council on May 25, 1977, Ambassador James F. Leonard, Deputy U.S. Representative to the United Nations, expressed U.S. support for this resolution based on the principle of territorial integrity and indicated that the U.S. Government was discussing with the Government of Botswana the possibility of providing assistance for developmental purposes and to ease "the impact on Botswana of the influx of refugees fleeing from oppression" in Southern Rhodesia. An excerpt from Ambassador Leonard's statement appears below:

*

My government is prepared to join in the consensus which we foresee on the draft resolution in support of Botswana. We shall do this because of our strong support for the principle of territorial integrity and the inviolability of international borders. We believe that Botswana, as a sovereign state in the front line of the struggle for equality on the African Continent, is entitled to develop free from incursions sponsored by the illegal minority regime in [Southern] Rhodesia.

U.N. Doc. S/PV. 2008, May 25, 1977 (Provisional), p. 18. For information concerning the U.S. position on the territorial integrity of Benin, see post, Ch. 14, § 4, pp. 931-932.

Security Laws

Foreign Corporations

In the case of Shaffer v. Heitner, 45 Law Week 4849, decided on June 24, 1977, Justice John Paul Stevens suggested in a concurring opinion. that investors purchasing the stock of a corporation organized under the laws of a foreign state might assume as a matter of international law that to some limited extent their property and affairs would become subject to the laws of domicile of the corporation. Justice Stevens indicated that such international contacts between investors and foreign states though minimal are sufficiently unusual to require investors to study the ramifications of their decisions. He contrasted such purchases

with purchases within the U.S. domestic market where investors domiciled in one State of the United States buying securities issued by corporations organized in another State of the United States could not be expected to know that they would become subject to the jurisdiction of the second issuing State.

In the majority opinion delivered by Justice Thurgood Marshall, in which Chief Justice Warren Burger and Justices Potter Stewart, Byron White, Harry Blackmun, and Lewis Powell joined and Justice William Brennan joined in part, the issues of the case were summarized as follows:

The controversy in this case concerns the constitutionality of a Delaware statute that allows a court of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that happens to be located in Delaware. Appellants contend that the sequestration statute as applied in this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the State courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants, the litigation, and the State of Delaware and because it authorizes the deprivation of defendants' property without providing adequate procedural safeguards. We find it necessary to consider only the first of these contentions.

Id. 4850.

The case involved a shareholder's derivative suit filed in a Delaware chancery court by a nonresident of Delaware against a corporation and its subsidiary as well as against 28 present and former nonresident corporate officers of the two corporations alleging that unlawful actions of the defendants in Oregon had given rise to liability by the corporation and the subsidiary for substantial damages in a private antitrust suit and a large fine in a criminal contempt action. The corporation had been incorporated in Delaware, and the subsidiary had been incorporated in Arizona. As to 21 of the defendants, the appellee obtained a sequestration order seizing their stock and various corporate rights located in Delaware and placing "stop transfer" orders on the books of the Delaware corporation. On appeal the Delaware Supreme Court upheld the judgment of the court of chancery permitting the sequestration procedure. Finding a lack of due process, the U.S. Supreme Court reversed:

The Due Process Clause

does not contemplate that a State may make binding a judgment against an individual or corporate defendant with which the State has no contacts, ties, or relations. International Shoe Co. v. Washington [326 U.S. 310], at 319.

Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional limitation on State power. . .

In his concurring opinion, Justice Stevens discussed how the due process requirement of fair notice has different consequences in domestic and international transactions for a cause of action against property (in rem) and against a defendant personally, though the true objective of the personal action is to discharge the claim against attached property (quasi in rem). A portion of Justice Stevens' concurring opinion appears below:

The Due Process Clause affords protection against "judgments without notice." International Shoe Co. v. Washington, 326 U.S. 310, 324 (opinion of Black, J.). Throughout our history the acceptable exercise of in rem and quasi in rem jurisdiction has included a procedure giving reasonable assurance that actual notice of the particular claim will be conveyed to the defendant. Thus, publication, notice by registered mail, or extraterritorial personal service has been an essential ingredient of any procedure that serves as a substitute for personal service within the jurisdiction.

The requirement of fair notice also, I believe, includes fair warning that a particular activity may subject a person to the jurisdiction of a foreign sovereign. If I visit another State, or acquire real estate or open a bank account in it, I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks,

Perhaps the same consequences should flow from the purchase of stock of a corporation organized under the laws of a foreign state, because to some limited extent one's property and affairs then become subject to the laws of the state of domicile of the corporation. As a matter of international law, that suggestion might be acceptable because a foreign investment is sufficiently unusual to make it appropriate to require the investor to study the ramifications of his decision. But a purchase of securities in the domestic market is an entirely different matter.

One who purchases shares of stock on the open market can hardly be expected to know that he has thereby become subject to suit in a forum remote from his residence and unrelated to the transaction. As a practical matter, the Delaware Sequestration Statute creates an unacceptable risk of judgment without notice. Unlike the 49 other States, Delaware treats the place of incorporation as the situs of the stock, even though both the owner and the custodian of the shares are elsewhere. Moreover, Delaware denies the defendant the opportunity to defend the merits of the suit unless he subjects himself to the unlimited jurisdiction of the court. Thus, it coerces a defendant either to submit to personal jurisdiction in a forum which could not otherwise obtain such jurisdiction or to lose the securities which have been attached. If its procedure were upheld, Delaware would, in effect, impose a duty of inquiry on every purchaser of securities in the national market. For unless the purchaser ascertains both the state of incorporation of the company whose shares he is buying, and also the idiosyncrasies of its law, he may be assuming an unknown risk of litigation. I therefore agree with the Court that on the

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