edy, a remedy which inures to the benefit of consumers. As the Court in Pfizer stated: "Treble-damages suits by foreigners who have been victimized by antitrust violations clearly may contribute to the protection of American consumers." 3 We recognize that there are serious concerns raised by the result in the Pfizer decision. Section 3, however, takes the most extreme approach possible-precluding all suits by all foreign nations. At the very least, less restrictive alternatives for limiting suits by foreign governments which would speak to those concerns and yet retain foreign governments as private antitrust enforcers should be explored before adopting the approach taken by section 3. 298 S. Ct. 584 [434 U.S. 308] (1978) 3 98 S. Ct. 584; [434 U.S. at 588] Dept. of Justice Press Release, unn., Aug. 3, 1978; Hearings on Clayton Act Amendments of 1978, ante, pp. 4-5. For the report on H.R. 11942, see H.R. Rept. No. 95-1197, pt. 2, 95th Cong., 2d sess. (1978). Walvis Bay South Africa On July 27, 1978, the United Nations Security Council endorsed the compromise proposal of Canada, France, the Federal Republic of Germany, the United Kingdom, and the United States, for cessation of hostilities in Namibia and for free and fair elections, under United Nations supervision, leading to installation of an independent government in Namibia. See, for a discussion of Resolution 431, this Digest, Chapter 2, section 1. The Security Council also adopted a separate resolution covering the port of Walvis Bay, which the South West African People's Organization (SWAPO) demanded be included in the Namibian settlement, although not included in the Western compromise proposal (United Nations Document S/12636, April 10, 1978). Resolution 432 reads: The Security Council, Recalling its Resolutions 385 (1976) and 431 (1978), Reaffirming in particular the provisions of Security Council Resolution 385 (1976) relating to the territorial integrity and unity of Namibia, Taking note of paragraph 7 of General Assembly Resolution 32/9 D, which declared that Walvis Bay is an integral part of Namibia, 1. Declares that the territorial integrity and unity of Namibia must be assured through the reintegration of Walvis Bay within its territory; 2. Decides to lend its full support to the initiation of steps necessary to ensure early reintegration of Walvis Bay into Namibia; 3. Declares that, pending the attainment of this objective, South Africa must not use Walvis Bay in any manner prejudicial to the independence of Namibia or the viability of its economy; 4. Decides to remain seized of the matter until Walvis Bay is fully reintegrated into Namibia. U.N. Doc. S/12520/Add. 29, Aug. 1, 1978. In regard to Resolution 432, Secretary of State Cyrus R. Vance made an additional statement on behalf of the five Western members of the Security Council (Canada, France, the Federal Republic of Germany, the United Kingdom, and the United States). His remarks follow: From the beginning of our efforts to assist in the achievement of independence by Namibia in accordance with Security Council Resolution 385 (1976), our Governments have been conscious of the strongly held views of the parties concerned on the status of Walvis Bay. Since these opposing views appeared to be irreconcilable, the five Governments decided to take the position that they would not include any provisions on this question in their proposal for a settlement of the Namibian situation. Consequently, the terms of the proposal which we submitted to the Security Council on April 10 contain no mention of Walvis Bay. This does not mean that we have no views concerning this question. We adopted our position in recognition of the fact that no proposal on Walvis Bay appeared to be capable of acceptance by the parties. Indeed, we were acutely aware that an effort to resolve the question in the context of our proposal would make agreement on the proposal impossible. Thus, in our discussions with the parties we did not seek to initiate a substantive discussion of this issue. We emphasized to all concerned our belief that a discussion of the legal status of Walvis Bay would not be useful and could only continue to hamper a resolution of the thirty-year controversy over Namibia. Instead, we stated on a number of occasions that the question of Walvis Bay would have to be the subject of negotiations between the parties concerned because we recognize, and we believe all parties recognize, that Walvis Bay is critical to the future of Namibia. In this connection, I should like to reiterate what the Secretary of State for External Affairs of Canada said when he spoke in the General Assembly during the ninth special session on April 25. Mr. Jamieson said: "The General Assembly will have noted that we have omitted from our proposal the difficult question of Walvis Bay for the reason that we see no way of settling the question in the context of the present negotiations. We feel strongly, however, that the issue should not delay the long-sought-after independence of Namibia. We consider that all aspects of the question of Walvis Bay must be subject to discussion between the South African Government and the elected government of Namibia. We have, furthermore, obtained assurances that the strength of the South African force in Walvis Bay will not be increased during the transitional period and that Namibians in Walvis Bay will be able to participate in the political life of the Territory during the transitional period, including by voting in the elections." (A/S-9/PV.3, p. 51) Since that time our Governments have given further consideration to this difficult question. We have confirmed our position that we do not wish to enter into disputes of a legal character concerning the various claims as to the status of Walvis Bay. Nevertheless, we recognize that there are arguments of a geographic, political, social, cultural and administrative nature which support the union of Walvis Bay with Namibia. Our Governments have also taken due note of the fact that political parties in Namibia hold the view that Walvis Bay must be part of an independent Namibia. All these considerations lead to the conclusion that it is appropriate that the Security Council should adopt a resolution which calls for "the initiation of steps necessary to ensure the early reintegration of Walvis Bay into Namibia." This resolution does not prejudice the legal position of any party. It does not seek to coerce any party. For our part we should like to state our understanding of our role with respect to the future of Walvis Bay. The commitment of our five Governments, our undertaking by voting in favor of this resolution, is to stand ready to offer the diplomatic support of our Governments to achieve the objective of a successful negotiation. We view our undertaking as consistent with the fundamental principle of the Charter of the United Nations that disputed questions are to be settled peacefully. We consider that the "steps necessary," referred to in operative paragraph 2 of the resolution, are negotiations between the two parties directly concerned. Accordingly, we shall encourage negotiations on this subject between the Government of South Africa and the government of Namibia that will be elected in accordance with our proposal for a settlement of the situation, and we are pleased to note that the Government of South Africa has publicly indicated its readiness to enter into such discussions. We hope that the adoption of this resolution will make a positive contribution. In our view the support of the Security Council in resolving this question is entirely appropriate in view of the responsibilities which the United Nations Charter bestows upon this body. Our Governments pledge to exert our best efforts in order to promote the achievement of an early, peaceful and successful result to the negotiations on Walvis Bay for the mutual benefit of the people of the region. U.N. Doc. S/PV.2082, July 27, 1978, pp. 13–17; Press Release USUN-73 (78), July 27, 1978. For background on Walvis Bay, see Brit. & For. St. Paps., Vol. 69, p. 1177; Vol. 70, pp. 495–496; Vol. 75, pp. 407–410 and 528–553; Vol. 82, p. 35; Vol. 102, pp. 91-92; and Vol. 104, pp. 50-102; Reports of International Arbitral Awards, Vol. XI, pp. 263-308; South African Act No. 24 (assented to July 14, 1922), came into operation Oct. 1, 1922, Brit. & For. St. Paps., Vol. 116, p. 399, as amended. For the 1978 Lusaka Declaration of the United Nations Council for Namibia, Mar. 23, 1978, declaring Walvis Bay an integral part of Namibia, see U.N.G.A. Off. Rec. 9th spec. sess., Supp. No. 1 (A/S-9/4), p. 25. See also G.A. Res. S-9/2, "Declaration on Namibia and Program of Action in Support of Self-Determination and National Independence for Namibia," adopted at the 15th plenary meeting of the 9th spec. sess. of the General Assembly, by a vote of 119-0-21 (United States), May 3, 1978. U.N. Docs. A/RES/S9/2, May 4, 1978, and A/S-9/PV.15, May 3, 1978, pp. 22-23/25. De Facto Control Wrangell (Wrangel) Island In reply to a request from Congressman Bill Frenzel for information about Wrangell (Wrangel) Island, located off the Siberian coast in the Arctic Ocean, Assistant Secretary of State for Congressional Relations Douglas J. Bennet, Jr., wrote, under date of July 13, 1978, in part: Wrangell Island, which lies approximately 200 miles west of the 1867 Alaska Purchase line in the Bering Strait, was known to the aboriginal inhabitants of Siberia from an early period, but efforts by Baron Wrangel, a Russian national, to "discover" it in the 1820's were unsuccessful. The date of eventual discovery is variously given as 1849 (a British explorer) and 1867. In the latter year an American, a Captain Long, sighted but apparently did not land on the Island; he was followed in that year by a number of other American whalers. In 1879, Commander G. W. DeLong of the U.S. Navy set out to explore the Island. His ship became entrapped by ice, and most of the crew perished when the ice eventually crushed the vessel. A Captain Hooper, sent to find DeLong and his ship, landed on Wrangell and claimed it for the United States in 1881. in In the 1920's, the Canadian explorer Vilhjalmur Stefansson was convinced that the age of the Arctic had come and organized a company to occupy Wrangell and perhaps adjacent islets in 1921, order to exploit its resources and establish British sovereignty. In September of 1921, a party of four men and one Eskimo cook was landed. A supply ship was scheduled to return in 1922, but was prevented from doing so by ice conditions. In 1923, a relief ship disregarded Soviet instructions (in assertion of their claim to Wrangell) that it clear a Soviet port and sailed directly to Wrangell. All of the party had perished except the cook. A new party was left, including one American, thirteen Alaskan natives and one Canadian Eskimo. The group was removed by a Soviet vessel in August of 1924. The Soviets raised their flag, by some accounts removing the British flag still being flown over the Island, despite Stefansson's sale of his interest to an American group in 1924. Prior to the Soviet removal of the party on Wrangell, both the British and Canadian governments had disclaimed any interest in pursuing a claim to the Island. We have found little evidence that the United States has ever actively asserted a claim to Wrangell Island. We are unaware of American actions subsequent to 1881 which evidence the actual, effective, and continuous functions of a state required to preserve and perfect a claim of sovereignty. While it is true that Wrangell Island was indicated shortly after the turn of the century as part of Alaska on Interior Department maps and in their geographical publications, this would not constitute by itself an exercise of such functions. Mere discovery, unsupported by effective occupation over time, is insufficient to acquire sovereignty over a "terra nullius," according to the legal authorities. The most recent official United States statement on Wrangell contained in our files dates from the period when the Soviets were establishing their control of it, in the early twenties. At the time, it was merely noted that the United States had not relinquished its claim. Notwithstanding considerable in-house study of the issue in the early twenties, we are unaware of diplomatic activity at any time to advance such a claim against the British, or after 1924, the Soviets. The United States has never had occasion formally to recognize Soviet ownership of Wrangell Island, although it did reject Soviet claims based on a sector principle in the Arctic. The United States, however, has long since adopted the practice of dealing with authorities in de facto control of territory, and we do not consider that recent scientific cooperative activities with the Soviet Union with respect to Wrangell Island necessarily import any recognition of legal status. Dept. of State File No. P78 0119-0676. Securities and Exchange Commission In Securities and Exchange Commission v. Zanganeh, 470 F. Supp. 1307 (D.D.C. 1978), District Judge Gerhard A. Gesell ruled on December 18, 1978, that the Commission had no power to subpoena an alien nonresident to appear before it from a foreign land, and he denied its application for an order to show cause why a subpoena duces tecum should not be enforced. A Commission rule provided that service upon an individual might be accomplished by service at the individual's office, and service had been made by leaving the subpoena at the offices of an Oklahoma corporation organized and owned by the respondent to hold Oklahoma lands for his children. 82 83 U.S.-Bolivia Jurisdiction Based on Nationality Jurisdiction Based on Agreement With Bilateral Agreements On April 14, 1978, President Carter transmitted to the Senate for its advice and consent to ratification the Treaty between the United States and Bolivia on the Execution of Penal Sentences, signed at La Paz on February 10, 1978, which the Senate Committee on Foreign |