The proposed finding and declaration will not suspend the other qualifications for jury service in section 1865 (b). Further, the suspension of the United States citizenship requirement as codified in section 1865 (b) (1) will not operate to suspend the further provisions in that subsection which require a person to be eighteen years old and to have resided for a period of one year within the judicial district in order to qualify for service.

The operative language of the proposed proclamation ensures the suspension of any other provision of the Constitution or laws of the United States which would require a citizen of the Trust Territory of the Pacific Islands, who is domiciled in the Northern Mariana Islands, to be a citizen of the United States in order to qualify for service on a grand or petit jury in the District Court for the Northern Mariana Islands.

The reviewing panel charged with responsibility to approve the jury selection plan for the District Court for the Northern Mariana Islands pursuant to section 1863 (a) of title 28, United States Code, has determined to withhold action pending your consideration of the proposed Presidential proclamation. Depending upon your action, the reviewing panel will approve an appropriate plan to ensure that juries may be empaneled as necessary to avoid any violation of the time requirements of title I of the Speedy Trial Act of 1974, 18 U.S.C. 31613174 (Supp. V 1975).

Dept. of State File No. P79 0015-1238.

Under date of May 31, 1978, Joseph A. Califano, Jr., Secretary of Health, Education, and Welfare, approved amendments to the regulations governing Federal old-age, survivors, and disability insurance benefits (20 CFR, Part 404) and supplemental security income for the aged, blind, and disabled (20 CFR, Part 416). The amendments provide that people residing in the Northern Mariana Islands, effective January 9, 1978, who are otherwise qualified, are eligible for special age 72 payments and supplemental security income benefits in the same manner and under the same conditions as if they were residents of one of the 50 States or the District of Columbia and citizens of (or qualified aliens in) the United States. The Supplementary Information published with the amendments states, in part:

... On October 24, 1977, President Carter, in accordance with sections 1003 (b) and 1004 (b) of the Northern Marianas Covenant (Pub. L. 94-241; 90 Stat. 277), proclaimed that the Constitution of the NMI and certain sections and articles of the Northern Marianas Covenant shall come into full force and effect on January 9, 1978 (42 FR 56593). The Covenant had been approved by joint resolution of Congress on March 24, 1976, and had previously been approved by the NMI District Legislature on February 20, 1975, and by the people of the NMI voting in a plebiscite on June 17, 1975.

The Covenant provides that the NMI of the Trust Territory of the Pacific Islands will become a commonwealth in political union with the United States upon termination of the Trusteeship Agreement (i.e., about 1981). Until then, the NMI will be in a transition period with self-government.

As herein pertinent, section 502(a) of the Covenant (effective January 9, 1978) provides: "[t]he following Laws of the United States... will apply to the Northern Mariana Islands . . . (1) . . . Section 228 of Title II and Title XVI of the Social Security Act

as it applies to the several States. . . . Section 228 of Title II authorizes special age 72 payments to certain uninsured individuals. Title XVI (SSI program) authorizes benefit payments to needy individuals who are age 65 or older, or blind, or disabled.

When social security programs are extended to new geographical areas, eligibility is ordinarily provided (unless express exceptions are prescribed) on a basis which is comparable to that for individuals who are already covered by the program. Therefore, section 502 (a) of the Covenant is being interpreted to permit residents and individuals who received interim United States citizenship status under the Constitution of the NMI, or qualified aliens in the NMI to qualify for special age 72 payments and SSI benefits just as if they were residents of one of the 50 States or the District of Columbia and citizens of (or qualified aliens in) the United States. Any other interpretation would not give effect to the pertinent parts of section 502 (a) of the Covenant.

Since section 502 (a) of the Covenant was effective January 9, 1978, operating personnel have been alerted to this change and the need to process such cases in a timely manner. This action was taken to insure prompt recognition and equitable handling of these cases, on an interim basis, until final regulations are in effect.

The amendments to the regulations are being published in final. They are substantive rules which extend special age 72 payments and SSI benefits to the people of the NMI as required by section 502 (a) of Pub. L. 94-241. This section, as previously mentioned, went into effect by Presidential proclamation January 9, 1978, and the rules have already been implemented by the Social Security Administration. Consequently, the Secretary finds that it would be unnecessary and impracticable for the Social Security Administration to publish the rules with Notice of Proposed Rulemaking.

Accordingly, Part 404 and Part 416 of 20 CFR are being amended

Fed. Reg., Vol. 43, No. 112, June 9, 1978, pp. 25090-25091.

The case of World Communications Corporation v. Micronesian Telecommunications Corporation, 456 F. Supp. 1122 (D. Hawaii, 1978), involved the Federal diversity statute, 28 U.S.C. 1332. The defendant, a corporation organized under the laws of the Trust Territory of the Pacific Islands, moved to dismiss the suit, brought by a Hawaiian corporation and a Hawaiian citizen, on the ground that the diversity statute did not apply. The district court granted the motion, holding that the Trust Territory was not a "foreign state," nor the Northern Mariana Islands portion thereof a "territory" of the United States for diversity jurisdiction purposes at the time the action was filed in 1976. The Court declined to consider the plaintiffs' final argument, that the change in status of the Northern Mariana Islands (including Saipan) from a part of the Trust Territory to a "common

wealth," on January 9, 1978, brought it within the purview of the diversity statute, since "diversity of citizenship is determined as of the commencement of an action." Excerpts from the opinion of Chief District Judge Samuel P. King follow:

[D]espite the diverse nature of the citizenship of the parties, there is no diversity jurisdiction in this instance.

The Trust Territory of the Pacific Islands occupies a unique position under international law. Article 3 of the Trusteeship Agreement provides that the United States has "full powers of administration, legislation, and jurisdiction" over the Trust Territory; thus, although sovereignty technically resides elsewhere, as a practical matter the United States can exercise full sovereign power. Furthermore, because this is the only area designated as a "strategic" trust, the United States is responsible to the Security Council rather than the General Assembly for administration of the Trust Territory, the United States gets preferential treatment in economic and commercial matters, and the United States can unilaterally declare all or any part of the islands a closed area within which the United States may bar anyone (including the United Nations) and determine the extent to which trustee functions will be exercised. People of Saipan v. United States Department of the Interior, 356 F.Supp. 645, 653–54 (D.Hawaii, 1973), aff'd., 502 F.2d 90 (9th Cir. 1974).

Plaintiffs contended that the Trust Territory was a "foreign state" within the meaning of 28 U.S.C. 1332(a) (2). This Court has previously rejected the characterization of the Trust Territory as a foreign country in People of Saipan, supra. "[W]ithout determining exactly what status the Trust Territory occupies, I hold that it is not a foreign country entitled to immunity from suits in the United States courts." Id. at 656. In light of similar considerations, I now hold that the Trust Territory is not a "foreign state" within the meaning of 28 U.S.C. 1332.

An analogous situation arose in Klausner v. Levy, 83 F.Supp. 599 (E.D.Va.1949). In Klausner, the court was confronted with a claim that a citizen of Palestine was a citizen of a "foreign state" within the meaning of the diversity jurisdiction statute. Palestine had been an area controlled by Great Britain under a mandate from the League of Nations. Citizens of Palestine were not citizens of Great Britain. The court held that these people were not citizens of a "foreign state" as that term is used in the diversity jurisdiction statute because Palestine was not recognized by the executive branch of the United States Government as an independent sovereign while it was under the League of Nations mandate. Id. at 600.

The authorities cited by plaintiffs are inapposite here. Murarka v. Bachrack Brothers, 215 F.2d 547 (2d Cir. 1954), involved a suit between a New York corporation and a citizen of India. At the time that the suit was commenced, there was no government of India; rather, there was an "interim government" between British control and independence. Id. at 552. The court rejected the New York corporation's contention that the plaintiff was not a citizen of a foreign state within the meaning of 28 U.S.C. 1332, stating that: "Unless form rather than substance is to govern, we think that in every

substantial sense by the time this complaint was filed India had become an independent international entity and was so recognized by the United States." Id. Unlike the status of India in Murarka, however, it is clear that the Trust Territory was not "in every substantial sense... an independent international entity" at the time this complaint was filed.

Plaintiffs also relied on Betancourt v. Mutual Reserve Fund Life Association, 101 F. 305 (C.C.S.D.N.Y. 1900), which found diversity of citizenship jurisdiction in a suit between a New York corporation and a Cuban citizen even though Cuba was no longer governed by Spain but was occupied by the United States in the aftermath of the Spanish-American War when the suit was filed. Although the court only discussed the legal status of the Cuban citizens briefly, it did note that the United States had officially declared that the people of Cuba were "free and independent." Id. at 306. Conversely, in the case at bar, there has been no such recognition of independence for the people of the Trust Territory; furthermore, such a declaration by the United States would be of dubious validity in light of the United Nations mandate.

Another argument for diversity jurisdiction is that the Trust Territory is a "territory" within the meaning of 28 U.S.C. 1332(d). This argument, however, has been previously rejected by this Court in People of Saipan, supra. "[T]he Trust Territory is technically not a territory or possession because the United States does not have Sovereignty." Id. at 656.

Plaintiffs' final argument is that the change in status of the Northern Mariana Islands (including Saipan) from a part of the Trust Territory to a "commonwealth" as of January 9, 1978, brings it within the purview of the diversity jurisdiction statute. See 48 U.S.C. 1681.... Plaintiffs contend that, in light of the increased autonomy of these islands, the Northern Marianas should be characterized as a "territory" for diversity jurisdiction purposes. Nevertheless, although plaintiffs make some interesting arguments in this context, they need not be reached herein. Diversity of citizenship is determined as of the commencement of an action. Louisville, N.A. & C. Ry. Co. v. Louisville Trust Co., 174 U.S. 552, 566, 19 S.Ct. 817, 43 L.Ed. 1081 (1899); C. Wright, Federal Courts § 28 at 107 (3d ed. 1976). Because this suit was filed in 1976, the subsequent change in status of the Northern Mariana Islands is irrelevant to the disposition of the instant motion to dismiss.

87

Other Subjects of International Law

Chapter 3

THE INDIVIDUAL IN INTERNATIONAL LAW

81

Nationality

General

The Foreign Relations Authorization Act, Fiscal Year 1979 (Public Law 95-426; 92 Stat. 963), approved October 7, 1978, contains the following provision regarding United States citizens living abroad, under Title VI, Policy Provisions:

EQUITABLE TREATMENT OF UNITED STATES CITIZENS LIVING ABROAD Sec. 611. (a) The Congress finds that

(1) United States citizens living abroad should be provided fair and equitable treatment by the United States Government with regard to taxation, citizenship of progeny, veterans' benefits, voting rights, Social Security benefits, and other obligations, rights, and benefits; and

(2) such fair and equitable treatment would be facilitated by a periodic review of statutes and regulations affecting Americans living abroad.

(b) Not later than January 20, 1979, the President shall transmit to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate a report which

(1) identifies all United States statutes and regulations which discriminate against United States citizens living abroad;

(2) evaluates each such discriminatory practice; and

(3) recommends legislation and any other remedial action the President finds appropriate to eliminate unfair or inequitable treatment of Americans living abroad.

Naturalization

Acquisition of Nationality

By Executive Order 12081, September 18, 1978, President Carter ordered that the statutory period of Vietnam hostilities which began on February 28, 1961, should be deemed to have terminated on October 15, 1978, for purposes of qualification for expeditious naturalization based on military service. It reads:

By the authority vested in me as President of the United States of America by section 329 of the Immigration and Nationality Act,

(233)