terminated on October 23, 1941, following its denunciation by Japan (see Whiteman, Digest of International Law, Vol. 4 (1965), pp. 1042-1048).

The President's letter was accompanied by a report on the 1980 Protocol from Secretary of State Edmund S. Muskie, that read in part:

Under the two conventions, the herds of fur seals have been protected and managed, and the population has increased from 300,000 animals to approximately 1.7 million. The Interim Convention was extended in 1963 and 1969. A 1976 Protocol further extended the Convention and amended it in order to provide greater protection for fur seals. This Protocol extends the Interim Convention for an additional four years, until 1984. It also reflects the four signatory nations' recognition of the extensions of fisheries jurisdictions which have occurred since the entry into force of the 1976 Protocol.

The Interim Convention bans pelagic sealing, which United States scientists consider a wasteful method of harvesting seals. Should the Convention not be extended, the Japanese have indicated they would return to the practice. The Convention also allows the management of fur seal stocks throughout their range. Without it, the United States could manage fur seals within its fishery conservation zone, but would not have any means of control over taking outside the zone. In addition, the Convention allows the continuation of traditional Aleut harvesting of seals for subsistence. The Department of Commerce has drafted an environmental impact statement on the possibilities of renegotiating the Interim Convention and has concluded that a four-year extension of the present agreement is the course of action which will provide the best protection to North Pacific fur seals throughout their range. The Department of Commerce, which participated with the Department of State in the negotiation of this Protocol, concurs in the view that early ratification of the Protocol is most desirable. . . .

S. Ex. S, 96th Cong., 2d sess. (1980), p. v.

During consideration of the Protocol by the Senate Committee on Foreign Relations, a reservation was offered that would have directed the administration to renegotiate the Interim Convention to allow the United States to reduce its harvest by approximately 70 percent. The Administration opposed the proposed reservation, as being without scientific justification, and contrary to the intent and understanding of the Parties to the Interim Convention, and for other reasons. Following defeat of the proposed reservation in committee, the Committee voted 15 to 0 to report the Protocol favorably to the Senate, which gave its advice and consent thereto on June 11, 1981. See S. Ex. Rept. No. 91-12, 97th Cong., 1st sess. (1981), and Cong. Rec., Vol. 127, No. 88 (daily ed. June 11, 1981), p. S6087.

TIAS 10020; 32 UST 5881; entered into force, July 2, 1981.

Alaska National Interest Lands Conservation

Act-Stikine-LeConte Wilderness

The Alaska National Interest Lands Conservation Act (ANILCA), approved on December 2, 1980, Public Law 96-487, 94 Stat. 2374, 16

U.S.C. 3101 et seq., provides for conservation of certain lands and waters in Alaska. Section 703(a)(10) of the Act, 94 Stat. 2419, 16 U.S.C. 1132 nt, designates as wilderness for purposes of conservation the Stikine-LeConte Wilderness, which borders on British Columbia. Prior to enactment of Public Law 96-487, the Government of Canada, by Embassy note number 219 of May 4, 1979, formally expressed its concern that the proposed legislation might affect Canada's access across the soon-to-be-designated wilderness area. In that note the Canadian Government requested "that the rights of free and unimpeded navigation which inure to the benefit of Canadian citizens on Alaska rivers crossing the boundary remain recognized in full and that any legislation, regulations or enforcement procedures which may be adopted by the United States in connection with the designation in the State of Alaska of land reserved from development or access be consistent with those treaty rights."

Canada claimed these navigation rights under: (1) the Convention between Great Britain and Russia concerning Limits of Respective Possessions on the Northwest Coast of America and the Navigation of the Pacific Ocean, signed February 16 (28), 1825; Parry, Consolidated Treaty Series, Vol. 75 (1969), p. 95; Br. & For. St. Paps., Vol. 12, p. 38; and (2) the Treaty between the United States and Great Britain for the Amicable Settlement of all Causes of Differences between the Two Countries, signed at Washington, May 8, 1871 (Treaty of Washington); TS 133, 17 Stat. 863; 12 Bevans, Treaties, etc. (1974), p. 170; entered into force, June 17, 1871. The former treaty provided for navigational rights with respect to all rivers traversing the AlaskanCanadian border. The latter treaty provides in Article XXVI for rights of "navigation of the Rivers Yukon, Porcupine, and Stikine for the purposes of commerce."

The United States Government advised the Government of Canada in 1979 and periodically thereafter of its views that existing Canadian rights of access in the Stikine-LeConte region are limited to those navigational rights on the three named rivers accorded by the Treaty of 1871. The United States Government has also noted its view that neither the 1825 Convention nor navigational rights accorded thereby continued in effect after the cession of Alaska (see, post).

Section 1113 of the Alaska National Interest Lands Conservation Act provided for future consideration of Canadian access needs: Congress finds that there is need to study the effect of this Act upon the ability of the Government of Canada to obtain access in the Stikine River region of southeast Alaska. Accordingly, within five years from the date of enactment of this Act, the President shall consult with the Government of Canada and shall submit a report to the Congress containing his findings and recommendations con

cerning the need, if any, to provide for such access. Such report shall include, among other things, an analysis of the need for access and the social, environmental and economic impacts which may result from various forms of access including, but not limited to, a road along the Stikine and Iskut rivers, or other alternative routes, should such access be permitted.

94 Stat. 2466, 16 U.S.C. 3173.

The Canadian Embassy's note No. 219, dated May 4, 1979, and the Dept. of State's reply, by note dated July 11, 1979, may be found at Dept. of State File Nos. P79 0065-2334 and P86 0126-2212.

The Convention Ceding Alaska, signed at Washington, Mar. 30, 1867, may be found at TS 301, 15 Stat. 539; 11 Bevans, Treaties, etc. (1974), p. 1216; entered into force, June 20, 1867.

In a note to the Embassy of Canada dated July 15, 1980, the Dept. of State noted reports of proposed dams being considered for the Stikine River basin in British Columbia and its tributary, the Iskut River. The Department pointed out that the Stikine, rising in British Columbia and flowing across Alaska to the Pacific, was subject to the Boundary Waters Treaty of 1909, and that any one of the reported projects might have an effect on the river's levels and flows in the United States. The Department asked for further information and details and suggested that the United States might request formal consultations with the Government of Canada on these projects at a later date.

Dept. of State File No. P80 0097-0578.

The Treaty Relating to the Boundary Waters and Questions Arising along the Boundary between the United States and Canada, signed Jan. 11, 1909, is at TS 548; 36 Stat. 2448; 12 Bevans, Treaties, etc. (1974), p. 319; entered into force, May 5, 1910.

Offense Committed Wholly Outside United States

The defendants in United States v. Perez-Herrera, 610 F.2d 289 (5th Cir. 1980), reh'g denied, 613 F.2d 315 (1980), all of them United States citizens, appealed their conviction for attempting to import marijuana into the United States in violation of 21 U.S.C. 963. They argued that they had committed no crime, because the indictment did not charge, nor did the government prove, that any part of the attempt had been made within the United States. Their arrest aboard an American-registered ship had taken place approximately seventy miles from the United States.

The United States Court of Appeals for the Fifth Circuit rejected the defendants' contention on January 23, 1980. Writing for the Court, Circuit Judge Albert J. Henderson referred to decisions upholding congressional power to regulate extraterritorial acts of United States citizens and also to penal statutes that might provide "in so many words" for extraterritorial effect. If limiting the com

pass of penal legislation to acts entirely within the United States would greatly curtail its scope and usefulness, the Court noted, a congressional intent to legislate extraterritorially would be inferred. The instant case differed from other conspiracy cases in that no overt act had taken place within the United States. Even so, the Court concluded, Congress had intended that the prohibition of attempts to import drugs should also apply to attempts made wholly outside of the United States.

See, also, United States v. Ricardo, 619 F.2d 1124 (5th Cir. 1980), cert. denied, 449 U.S. 1063 (1980).

In United States v. Egan, 501 F. Supp. 1252 (S.D.N.Y. 1980), the defendants had been charged under various provisions of the Comprehensive Drug Abuse and Prevention Act of 1970, 21 U.S.C. 801 et seq., with: (1) conspiracy to import and to possess with intent to distribute 30 tons of marijuana; (2) possession of the marijuana with intent to distribute it; and (3) unlawfully attempting to import the marijuana.

They, too, argued that the statutory provisions under which they were charged were inapplicable to their activities, since none was expressly made applicable to conduct occurring outside the United States. The stateless vessel involved had been boarded by the Coast Guard with the defendants' consent, following a request for medical assistance (although the Coast Guard had already become aware that marijuana was on board when bales of marijuana had been jettisoned). The indictment contained no allegation that any overt act occurred within United States territorial limits.

Noting cases in which the United States had used either the objective territorial principle or the protective principle as the basis for asserting criminal jurisdiction, District Judge Robert W. Sweet rejected the defendants' contentions. In addition, the Court said, since two were United States citizens, the nationality principle also provided a basis for exercising jurisdiction over them.

Judge Sweet stated that his conclusion applied to all three counts, since the crime covered by the second, possession with intent to distribute, was, like conspiracy and attempt to import, one that could be anticipated to occur often on the high seas. An intent to distribute marijuana could be inferred from the size of the shipment and the location of the vessel. To follow the defendants' "narrow" interpretation of the drug laws, the Court said, would "defeat the goal of Congress to utilize its full authority to combat the illegal narcotics invasion."

On July 8, 1980, Judge Sweet denied the defendants' motion to suppress various evidence, including the 30 tons of marijuana seized. He held that the defendants did not satisfy either test under Rakas v.

Illinois, 439 U.S. 128 (1978), for assertion of a Fourth Amendment right. They could not claim to be aggrieved by the seizure of the marijuana, because they had not claimed a property interest therein, and they had not demonstrated a reasonable expectation of privacy in the vessel's hold. The vessel was a commercial ship and was subject to administrative searches by the Coast Guard to determine if it were properly registered, and these could include examining the main beam number in the hold.

The Court noted that neither following the vessel nor attempting to communicate by radio and loud hailer constituted a seizure, and that the vessel had not been restrained from proceeding. But, the Court said, even if a stop amounting to a seizure had occurred within the meaning of United States v. Williams (see, this Digest, pp. 473-475), the stop/seizure did not violate the Fourth Amendment, since the available facts had given rise not only to a reasonable suspicion, but also to probable cause, to believe that the crew members were violating United States drug laws.

Finally, the limited warrantless search of the vessel was valid both by analogy to the "automobile exception" to the warrant requirement ("like an automobile, a boat is 'inherently mobile" ") and because of the defendants' refusal to specify the vessel's registry or destination, which gave rise to a reasonable suspicion that the vessel was stolen. While the Coast Guard officer was lawfully in the engine room to check for the main beam number, the marijuana bales "were in plain view through the hatch of the forward hold . . . and thus were subject to seizure without a warrant."

United States, v. Egan, 501 F. Supp. 1252, 1260, 1273-1274.

See, also, United States v. De Weese, 632 F.2d 1267 (5th Cir. 1980), reh'g denied, 641 F.2d 879, cert. denied, 454 U.S. 878 (1981).

On September 15, 1980, President Carter signed into law, as Public Law 96-350, legislation to facilitate increased enforcement by the Coast Guard of laws relating to the importation of controlled substances. It read:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) it is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States on the high seas, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

(b) It is unlawful for a citizen of the United States on board any vessel to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance.

(c) It is unlawful for any person on board any vessel within the customs waters of the United States to knowingly or intentionally