Chapter 6 STATE TERRITORY, JURISDICTION, AND JURISDICTIONAL IMMUNITIES § 1 State Territory and Territorial Jurisdiction Berlin On April 14, 1975, the Permanent Representatives of France, the United Kingdom, and the United States sent a letter to the Secretary-General of the United Nations, setting forth certain additional points concerning the quadripartite status of greater Berlin, a matter at issue with the Soviet Union following the release of the 1972 edition of the United Nations Demographic Yearbook. The three states had previously protested the listing in that publication of the Eastern sector of Berlin as the capital of the German Democratic Republic, and the listing of the Western sector of Berlin as part of the Federal Republic of Germany, at the end of a list of West German cities otherwise placed alphabetically on the page. See the 1974 Digest, p. 246. In a letter dated September 19, 1974 (U.N. Doc. A/9761, Sept. 20, 1974), the three states had recalled that the Quadripartite Declaration of November 9, 1972, confirmed that the membership of the Federal Republic of Germany and the German Democratic Republic in the United Nations should in no way affect the rights and responsibilities of the Four Powers and the related quadripartite agreements, decisions, and practices. They declared further that there was no justification for treating statistics relating to Berlin in any manner which failed to reflect the quadripartite status of all of its sectors. The Soviet Union, in turn, had rejected these statements (U.N. Doc. A/9855, Nov. 13, 1974). In their letter of April 14, 1975, France, the United Kingdon, and the United States reaffirmed the terms of their letter of September 19, 1974, and made the following additional points: 1. The quadripartite status of greater Berlin stems from the original rights and responsibilities of the Four Powers. Quadripartite wartime and post-war agreements and decisions based on these rights and responsibilities stipulated that greater Berlin was to be a special area under the joint authority of the Four Powers entirely distinct from the Soviet zone of occupation in Germany. 2. Any change in the status of greater Berlin as reflected in these agreements and decisions would require the agreement of all Four Powers. No such agreement altering the status of Berlin or providing for a special status for any of its sectors has ever been concluded. No unilateral steps taken by the Soviet Union in violation of the quadripartite agreements and decisions relating to greater Berlin, nor the fact that the seat of government of the German Democratic Republic is currently located in the Eastern sector of the city, can imply that the quadripartite rights and responsibilities relating to the Eastern sector are in any way affected. In fact, the Four Powers continue to exercise their quadripartite rights and responsibilities in all four sectors of the city. 3. The Quadripartite Agreement, signed in Berlin on September 3, 1971, was explicitly concluded on the basis that the quadripartite rights and responsibilities and the corresponding wartime and postwar agreements and decisions of the Four Powers are not affected. Moreover, the Four Powers affirmed in the Quadripartite Declaration, made in Berlin on November 9, 1972, and circulated on June 18, 1973, as a document of the United Nations (S/10955), that membership of the Federal Republic of Germany and the German Democratic Republic in the United Nations shall in no way affect the rights and responsibilities of the Four Powers and the corresponding related quadripartite agreements, decisions and practices. The Three Powers will continue, as in the past, to fulfill their obligations flowing from the quadripartite agreements and decisions relating to Berlin. U.N. Doc. A/10078, Apr. 23, 1975. In a note verbale of May 12, 1975 (U.N. Doc. A/ 10084, May 13, 1975), the Soviet Representative to the United Nations reaffirmed the Soviet point of view and stated in addition: 1. The Soviet Union rejects the assertions in the Three Power letter concerning the present legal status of Berlin, capital of the German Democratic Republic. The capital of the German Democratic Republic is an integral part of that country, from which it is inseparable, and has exactly the same legal status as any other part of the territory of the German Democratic Republic. Neither the provisions of the Quadripartite Agreement of September 3, 1971, nor the Quadripartite Declaration of November 9, 1972 (S/10955), affects in any way whatsoever the position of Berlin as the capital of the German Democratic Republic, a fact which those instruments take for granted. 2. The attempt of the Three Powers to prove otherwise by referring to quadripartite wartime and postwar agreements and decisions cannot be regarded as sound, inasmuch as they are clearly contrary to legal and factual realities. The Soviet Union deems it essential to emphasize that France, the United Kingdom and the United States do not possess, and never did possess, any "original", non-treaty rights over Berlin. Territorially, Berlin was never detached from the former Soviet zone of occupation in Germany, a fact which is reflected and confirmed in the quadripartite instruments. 3. On the question of the authority exercised jointly by the Four Powers over Berlin, it was of course the Three Powers themselves that brought that situation to an end by frustrating the implementation of the quadripartite agreements and decisions and by cutting off the Western sectors of Berlin from their natural environment. It is perfectly obvious that they cannot claim advantages under an agreement that they themselves violated, much less claim any rights whatsoever with respect to the capital of the German Democratic Republic. 4. The Soviet Union continues to deem it essential that all parties should take into consideration the political and territorial situation which actually exists in that area, as a result of events in the postwar period and as now recognized and accepted by the immense majority of states. Such an attitude would serve the cause of developing normal and businesslike cooperation on a broad international basis. On June 26, 1975, the representatives of France, the United Kingdom, and the United States sent a letter to the Secretary-General reaffirming their Apr. 14 letter, and rejecting the Soviet counter-assertions. U.N. Doc. A/10126, June 27, 1975. On June 26, 1975, the Permanent Representatives of France, the United Kingdom, and the United States to the United Nations addressed a letter to the U.N. Secretary-General upholding the legality of the representation of the Federal Republic of Germany, at the first session of the U.N. Commission on Transnational Corporations, by Dr. Eberhard Guenther, President of the Federal Office for Supervision of Cartels and Trusts, an office with headquarters in West Berlin. The representative of the Soviet Union to the United Nations had asserted that the designation of Dr. Guenther and the activities in West Berlin of the Federal Office for the Supervision of Cartels and Trusts were contrary to the Quadripartite Agreement of September 3, 1971 (TIAS 7551; 24 UST 285; entered into force June 3, 1972). The letter of June 26, 1975, in reply to that assertion, stated in relevant part: The contention of the Permanent Representative of the Union of Soviet Socialist Republics that the designation of Dr. Eberhard Guenther as a representative of the Federal Republic of Germany at the first session of the United Nations Commission on Transnational Corporations is contrary to the Quadripartite Agreement of September 3, 1971, is without foundation. That Agreement, which was signed in Berlin by the Governments of France, the United Kingdom of Great Britain and Northern Ireland, the United States of America and the Union of Soviet Socialist Republics, contains no provision from which such a contention could be drawn. The location of the Federal Office for the Supervision of Cartels and Trusts in the Western sectors of Berlin was approved in 1957 by the British, French and United States authorities acting on the basis of their supreme authority. They are satisfied that the Federal Office for the Supervision of Cartels and Trusts does not perform in the Western sectors of Berlin acts in exercise of direct state authority over the Western sectors of Berlin. Neither the location nor the activities of that Office in the Western sectors of Berlin therefore contravene any of the provisions of the Quadripartite Agreement. The letter from the Permanent Representative of the Union of Soviet Socialist Republics which is referred to above contains an incomplete and consequently misleading reference to the Quad ripartite Agreement. The relevant passage of that Agreement to which the Soviet representative referred provides that the ties between the Western sectors of Berlin and the Federal Republic of Germany will be maintained and developed, taking into account that these sectors continue not to be a constituent part of the Federal Republic of Germany and not to be governed by it. Regarding other communications on this subject which have been sent to the Secretary-General, we wish to point out that states which are not parties to the Quadripartite Agreement are not competent to comment authoritatively on its provisions. U.N. Doc. A/10127, June 27, 1975, and A/10062, Mar. 24, 1975. On October 14, 1975, the Governments of France, the United Kingdom, and the United States made a declaration that the rights and responsibilities of the Four Powers for Berlin and Germany as a whole remain unaffected by the Treaty of Friendship, Cooperation and Mutual Assistance concluded by the Soviet Union and the German Democratic Republic on October 7, 1975 (U.N. Doc. A/10328, Nov. 3, 1975). The communique issued by the North Atlantic Council in Ministerial session in Brussels on December 11 and 12, 1975, took note of the declaration and supported the view of the Government of the Federal Republic of Germany that its policy to work for "a state of peace in Europe in which the German nation will regain its unity through free self-determination is fully consistent with the Final Act of Helsinki." The Ministers emphasized in particular that "traffic and ties between Western sectors of Berlin and the Federal Republic of Germany and the representation abroad of the interests of those sectors by the Federal Republic of Germany continue to be important elements of the viability of the city." See Dept. of State Bulletin, Vol. LXXIV, No. 1907, Jan. 12, 1976, pp. 57-58. Baltic States On December 2, 1975, the United States House of Representatives passed House Resolution 864, expressing the sense of the House that the signing in Helsinki on August 1, 1975, of the Final Act of the Conference on Security and Cooperation in Europe (CSCE) did not change in any way United States policy on the nonrecognition of the Soviet Union's seizure and annexation of the three Baltic nations of Estonia, Latvia, and Lithuania. The operative portion of the resolution reads as follows: * Resolved, That notwithstanding any interpretation which the Soviet Union or any other country may attempt to give to the Final Act of the Conference on Security and Cooperation in Europe, signed in Helsinki, it is the sense of the House of Representatives (1) that there has been no change in the longstanding policy of the United States on nonrecognition of the illegal seizure and annexation by the Soviet Union of the three Baltic nations of Estonia, Latvia, and Lithuania, and (2) that it will continue to be the policy of the United States not to recognize in any way the annexation of the Baltic nations by the Soviet Union. Cong. Rec., Vol. 121, No. 176, Dec. 2, 1975, p. H11587 (daily ed.). The resolution noted that the President and the Assistant Secretary of State for European Affairs had previously stated that U.S. policy on nonrecognition of the Soviet Union's forcible annexation of the Baltic nations had not been affected by the CSCE. For the full text of the Final Act of the CSCE, see Dept. of State Bulletin, Vol. LXII, No. 1888, Sept. 1, 1975, pp. 323-350. See also index entries, this Digest, under Conference on Security and Cooperation in Europe (CSCE) (1975). Foreign States In Republic International Corporation, et al. v. Amco Engineers, Inc. et al., No. 73-2459, the Ministry of Public Works of the Republic of Uruguay, a codefendant, appealed from a default judgment entered in favor of Republic International Corporation for damages for breach of contract. On April 25, 1975, the U.S. Court of Appeals for the Ninth Circuit held that service of process on the appellant under Rule 83 of the Federal Rules of Civil Procedure was proper in view of the issuance of letters rogatory to the Uruguayan court and service by special agent to the special residence of the Ministry of Public Works in Montevideo with a return of summons to the Court. The opinion also held that the dispatch of engineers by the Ministry to the offices of Amco in Los Angeles and their presence there for several months was sufficient to support a finding of personal jurisdiction over the appellant. However, the Court held that the action should have been dismissed because forum selection clauses in the original contract provided that suit should be brought in the courts of Uruguay. Criminal Jurisdiction Illegal Apprehension On January 8, 1975, the United States Court of Appeals for the Second Circuit decided in the case of United States ex rel. Lujan v. Gengler, 510 F.2d 62 (1975), cert. denied 421 U.S. 1001 (1975), that |