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Chapter 3
THE INDIVIDUAL IN INTERNATIONAL

LAW
§ 1 Nationality

Acquisition of Nationality
Nationality at Birth

On January 27, 1975, Frederick Smith, Jr., Deputy Administrator of the Bureau of Security and Consular Affairs of the Department of State, in a letter to Garner J. Cline, Staff Director of the Committee on the Judiciary of the House of Representatives, stated the Department's opinion that "children born in the United States to the families of officers and employees of the Soviet consular establishment are generally subject to the jurisdiction of the United States and acquire U.S. citizenship at birth.” The following is an excerpt from his letter:

As you know, the first sentence of the 14th Amendment to the Constitution states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside." This provision of the 14th Amendment is also reflected in section 301(a)(1) of the Immigration and Nationality Act. At the time of its conclusion, the U.S.-U.S.S.R. Consular Convention was unique in the granting of full immunity to consular officials. However, unlike some consular conventions subsequently concluded with other Eastern European countries, the U.S.-U.S.S.R. Consular Convention did not extend such immunities to the families of Soviet consular officers and employees. The family members are granted certain limited immunities, such as from military service and custom duties, but they are not granted immunity from criminal or civil jurisdiction. Thus they would appear to be in the same position as family members of employees of foreign diplomatic missions whose names are included in the so-called “White List." While such employees enjoy functional immunity from civil and criminal jurisdiction, they do not have full diplomatic immunity nor do their children or other family members.

Dept. of State File No. P75 0109-0204.

Mr. Cline subsequently inquired whether the Department's conclusion might be altered in any way by Note No. 1328, dated March 1, 1968, sent by the U.S. Embassy in Moscow to the Soviet

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Ministry of Foreign Affairs. The note in question stated that “the non-diplomatic staff of the Embassy of the U.S.S.R. in the United States of America will be granted, on a basis of reciprocity, all of the privileges and immunities granted to diplomatic officers, except as certain state taxes and the District of Columbia gasoline tax may apply."

Leonard F. Walentynowicz, Administrator of the Bureau of Security and Consular Affairs, replied on May 29, 1975, in part, as follows:

The Office of the Legal Adviser has, upon my request, reviewed the U.S.-U.S.S.R. Consular Convention and the negotiating history of that Convention. That office concludes that Embassy Note No. 1328 does not alter the view reached by Mr. Smith in his letter to you of January 27, to wit, children born in the United States to families of officers and employees of the Soviet consular establishment are generally subject to the jurisdiction of the U.S., and therefore acquire citizenship at birth under the Fourteenth Amendment.

In the 1964 Convention, following the rubric “Rights, Privileges, and Immunities,” Article 19 extends immunity from criminal jurisdiction to "consular officers and employees." Families of such officers and employees are not specifically included in Articles 23(3), 24, and 26(2) in the Convention. With reference to Embassy Note No. 1328, it must be remembered that such exchanges, executed subsequent to a Convention still in force, must be read and interpreted in light of the Convention. The Embassy Note under discussion specifically refers to “nondiplomatic personnel,” and later to "non-diplomatic staff,” i.e., all those officers and employees not now accorded full immunity including members of the consular establishment. It does not appear to attempt to broaden the class of affected individuals to include “families” of such Soviet employees. However, if any such attempt was intended, it could not be effective in light of the selective language of the Convention. Therefore, children born in the United States to Soviet "non-diplomatic" employees are subject only to those immunities specifically enumerated in the 1964 Convention. Since no full immunity is granted by the Convention to the families of consular officers or employees, they are subject to U.S. jurisdiction and thus such children acquire United States citizenship at birth under the Fourteenth Amendment.

In view of your feelings and the feelings of the U.S.S.R. Government about this situation, we are exploring the possibilities of resolving this problem by means of a separate protocol agreement.

Dept. of State File No. P75 0091-1195.

The U.S.-U.S.S.R. Consular Convention was signed June 1, 1964 (TIAS 6503; 19 UST 5018; entered into force July 13, 1968).

Naturalization

The United States Court of Appeals for the Third Circuit, in the case of Petition of Yiu Nam Donn, 512 F.2d 208 (1975), decided on February 25, 1975, held that an alien who had served with the United States forces in Korea after the Korean cease-fire and who was on inactive duty during the Vietnamese conflict did not qualify for citizenship under Section 329 of the Immigration and Nationality Act, 8 U.S.C. 1440(a). That section of the Act allows citizenship to aliens who have served actively in the armed forces during specified periods of wartime or hostilities. Active duty service during both the Korean and Vietnamese conflicts is included.

Yiu Nam Donn, a native of mainland China, had entered the United States in 1952 as the alleged son of a United States citizen. On the basis of his father's alleged citizenship, Donn was issued a certificate of citizenship in 1955 under Section 341 of the Act, 8 U.S.C. 1452. He served actively in the military forces from 1958 to 1960 and was assigned to Korea for one year of that period. Subsequently, he was a member of the standby reserve from 1960 to 1964. Mr. Donn later learned that his father had not in fact been an American citizen. Upon learning this from Mr. Donn, the Immigration and Naturalization Service cancelled Mr. Donn's certificate of citizenship. Donn then filed a petition for naturalization under Section 329 of the Act based on his military service. The District Court upheld his argument that his service came within the spirit of the Act because (1) he served in Korea during a period when tensions were high, even after the 1955 termination of active fighting, and (2) he was in standby service, where he might have been called up at any time, during the VietNam war. It issued an order granting naturalization, and the United States appealed.

The Court of Appeals reversed the order of the District Court, saying that the lower court's holding that Donn's service came within the spirit of the Act must fail “because it asks us to rewrite a statute which requires active duty service during a specified period rather than service in any specific place or service in the standby reserves."

The Appeals Court decision noted, however, that the government had been requested to reexamine Mr. Donn's status with respect to application for permanent residency, and that Donn was subsequently granted permanent resident status, making him eligible for citizenship in five years on that basis, or in three years, if his wife should become a naturalized citizen in the meantime.

Northern Mariana Islands

The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, signed at Saipan February 15, 1975, provides for acquisition of United States citizenship or nationality by specified persons, either citizens of the Trust Territory of the Pacific Islands or domiciled in the Northern Mariana Islands on the day preceding the effective date of the relevant provision, and acquisition of United States citizenship at birth by persons born in the Commonwealth after the effective date. The provisions of Article III of the Covenant reads as follows:

Section 301. The following persons and their children under the age of 18 years on the effective date of this Section, who are not citizens or nationals of the United States under any other provision of law, and who on that date do not owe allegiance to any foreign state, are declared to be citizens of the United States, except as otherwise provided in Section 302:

(a) all persons born in the Northern Mariana Islands who are citizens of the Trust Territory of the Pacific Islands on the day preceding the effective date of this Section, and who on that date are domiciled in the Northern Mariana Islands or in the United States or any territory or possession thereof;

(b) all persons who are citizens of the Trust Territory of the Pacific Islands on the day preceding the effective date of this Section, who have been domiciled continuously in the Northern Mariana Islands for at least five years immediately prior to that date, and who, unless under age, registered to vote in elections for the Mariana Islands District Legislature or for any municipal election in the Northern Mariana Islands prior to January 1, 1975; and

(c) all persons domiciled in the Northern Mariana Islands on the day preceding the effective date of this Section, who, although not citizens of the Trust Territory of the Pacific Islands, on that date have been domiciled continuously in the Northern Mariana Islands beginning prior to January 1, 1974. Section 302. Any person who becomes a citizen of the United States solely by virtue of the provisions of Section 301 may within six months after the effective date of that Section or within six months after reaching the age of 18 years, whichever date is the later, become a national but not a citizen of the United States by making a declaration under oath before any court established by the Constitution or laws of the United States or any court of record in the Commonwealth in the form as follows:

"I ... being duly sworn, hereby declare my intention to be a national but not

a citizen of the United States." Section 303. All persons born in the Commonwealth on or after the effective date of this Section and subject to the jurisdiction of the United States will be citizens of the United States at birth.

Section 304. Citizens of the Northern Mariana Islands will be entitled to all privileges and immunities of citizens in the several States of the United States.

Under Article X, Section 1003 of the Covenant, the effective date of Section 301 is “upon the termination of the Trusteeship Agreement and the establishment of the Commonwealth of the Northern Mariana Islands."

Section 506 of the Covenant provides the extent to which the Immigration and Nationality Act, as amended, will apply to the Northern Mariana Islands. That Section reads as follows:

Section 506.

(a) Notwithstanding the provisions of Subsection 503(a), upon the effective date of this Section the Northern Mariana Islands will be deemed to be a part of the United States under the Immigration and Nationality Act, as amended, for the following purposes only, and the said Act will apply to the Northern Mariana Islands to the extent indicated in each of the following Subsections of this Section.

(b) With respect to children born abroad to United States citizen or noncitizen national parents permanently residing in the Northern Mariana Islands the provisions of Sections 301 and 308 of the said Act will apply.

(c) With respect to aliens who are “immediate relatives" (as defined in Subsection 201(b) of the said Act) of United States citizens who are permanently residing in the Northern Mariana Islands all the provisions of the said Act will apply, commencing when a claim is made to entitlement to “immediate relative” status. A person who is certified by the Government of the Northern Mariana Islands both to have been a lawful permanent resident of the Northern Mariana Islands and to have had the "immediate relative” relationship denoted herein on the effective date of this Section will be presumed to have been admitted to the United States for lawful permanent residence as of that date without the requirement of any of the usual procedures set forth in the said Act. For the purpose of the requirements of judicial naturalization, the Northern Mariana Islands will be deemed to constitute a State as defined in Subsection 101(a) paragraph (36) of the said Act. The Courts of record of the Northern Mariana Islands and the District Court for the Northern Mariana Islands will be included among the courts specified in Subsection 310(a) of the said Act and will have jurisdiction to naturalize persons who become eligible under this Section and who reside within their respective jurisdictions.

(d) With respect to persons who will become citizens or nationals of the United States under Article III of this Covenant or under this Section the loss of nationality provisions of the said Act will apply.

The full text of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America may be found in Cong. Rec., Vol. 121, No. 43, Mar. 17, 1975, pp. 4083-4091 (daily ed.), and in U.N. Doc. T/1759, Mar. 10, 1975. For a summary of the Covenant, see Ch. 2, $ 6, ante, pp. 97–103.

Loss of Nationality

The Department of State, in a note dated April 28, 1975, to the Embassy of Sweden in Washington, responded as follows to the Embassy's questions regarding the effect upon U.S. citizenship of voting in a foreign political election:

. . At present there is no existing legislation which could cause the loss of United States citizenship solely for voting in a

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