Recommendation IX-2

Antarctic Marine Living Resources

Recommend to their governments that:

I

Scientific Research

1. To the greatest extent feasible, they cooperate broadly and comprehensively in scientific investigations, and in the exchange of information thereon, relating to the Antarctic marine environment and that they intensify as far as possible scientific research related to Antarctic marine living resources;

2. In planning their marine activities in the Antarctic, they have regard to the advantages that will accrue from coordination by them of their scientific investigations contributing to the BIOMASS program;

3. They give sympathetic consideration to the provision of practical measures (such as ships, ship time, personnel and finance) in support of the implementation of the BIOMASS program or other similar programs;

4. They examine the possibility of integrating, insofar as is practicable, research vessel programs with the activities of other vessels, and make available on vessels operating in the Antarctic, other than research vessels contributing directly to the BIOMASS program, time and facilities for routine observations aimed at extending the data base for the program.

II

Interim Guidelines for the Conservation of Antarctic Marine Living Resources 1. They observe the following interim guidelines pending entry into force of the deaitive regime for Antarctic Marine Living Resources:

(a) they cooperate as broadly and comprehensively as possible in the mutual exchange of statistics relating to catch of Antarctic Marine Living Resources;

(b) they should show the greatest possible concern and care in the harvesting of Antarctic Marine Living Resources so that it does not result in the depletion of stocks of Antarctic marine species or jeopardizing the Antarctic marine ecosystem as a whole;

(c) they urge those governments which are not parties to the Antarctic Treaty and which engage in activities involving the use of the marine living resources of Antarctica to take account of these guidelines;

2. They review these interim guidelines as and when necessary and in any event following the conclusion of the definitive regime with a view to their future elaboration in the light of the provisions of the definitive regime.

III

Establishment of a Definitive Conservation Regime

1. A definitive regime for the Conservation of Antarctic Marine Living Resources should be concluded before the end of 1978.

2. A special Consultative Meeting [should] be convened in order to elaborate a draft definitive regime, and in particular:

(a) to determine the form of the definitive regime, including the question as to whether an international instrument such as a convention is necessary; (b) to prepare, if necessary, draft rules of procedure for a subsequent decisive meeting for the establishment of the definitive regime;

(c) to decide on participation in such a meeting by states other than Consultative Parties which are actively engaged in research and exploitation of Antarctic Marine Living Resources and the participation, on an observer basis, of appropriate international organizations;

(d) to finalize the date and place of the decisive meeting;

(e) to take any other steps in order to facilitate the work of the decisive meeting referred to above.

3. The Special Consultative Meeting shall base its work on this recommendation and take account of the discussions at the Ninth Consultative Meeting, its report and the documents presented to it, and, in the elaboration of a draft definitive regime, shall take into account, inter alia, the following elements:

(a) the regime should explicitly recognize the prime responsibilities of the Consultative Parties in relation to the protection and conservation of the environment in the Antarctic Treaty area and the importance of the measures recommended by the Consultative Parties to this end;

(b) the provisions of Article 4 of the Antarctic Treaty shall not be affected by the regime. It should ensure that the principles embodied in Article 4 are safeguarded in application to the marine areas south of 60° South latitude; (c) the regime should provide for the effective conservation of the marine living resources of the Antarctic ecosystem as a whole;

(d) the regime should cover the area of specific competence of the Antarctic Treaty:

(e) the regime should, however, extend north of 60° South latitude where that is necessary for the effective conservation of species of the Antarctic ecosystem, without prejudice to coastal state jurisdiction in that area;

(f) the regime should not apply to species already regulated pursuant to existing international agreements but should take into account the relationship of such species to those species covered by the regime.

The Antarctic Treaty was signed on Dec. 1, 1959. As of Dec. 1977, states which were parties included Argentina, Australia, Belgium, Brazil, Chile, Czechoslovakia, Denmark, France, German Democratic Republic, Japan, Netherlands, New Zealand, Norway, Poland, Romania, South Africa, Union of Soviet Socialist Republics, United Kingdom, and United States.

For the text of art. 4 of the Antarctic Treaty, see ante, Ch. 6, § 2, pp. 455-456. For further information concerning Antarctica, see the 1975 Digest, Ch. 2, § 7, pp. 104-111.

Chapter 3

THE INDIVIDUAL IN INTERNATIONAL LAW

$1 Nationality

Acquisition of Nationality

Nationality at Birth

In 1977 Mr. A. R. Mackay, Acting Chief of the Legal Division of the Passport Office in the Department of State, responded to the inquiry of an attorney at law acting on behalf of U.S. citizens who were seeking, inter alia, to ascertain that their foreign born daughter was documented as a U.S. citizen. The parents of the daughter had received a marriage blessing from the abbot of a monastery in one foreign country and then lived in a second foreign country where their daughter was born and where they attempted to document her citizenship at the U.S. Embassy. After receiving a communication from the authorities of the country where the parents received the marriage blessing to the effect that the parents had not presented sufficient evidence of a valid marriage in accordance with local custom, the Department of State determined that the marriage of the parents was deemed not proved due to lack of evidence. Upon receipt of further information from the U.S. Library of Congress to the effect that the marriage may have been performed in accordance with local custom, the Department reversed its decision concerning the marriage of the parents and amended the daughter's Report of Birth to show that she was born in wedlock.

Subsequently, the attorney at law for the parents suggested in a letter that his clients might bring suit against the Department, alleging in essence that the Department had nullified the parents' marriage by its negligent action, "retroactively bastardized their child," and caused them great economic hardship. Set forth below are portions of Mr. Mackay's letter of response in which he outlines how U.S. parents may present evidence to establish the U.S. citizenship of their children and how these evidentiary standards were met in this case:

A person seeking documentation as a United States citizen has the burden of proving acquisition of United States citizenship (22 CFR 51.40). If the [parents] were considered legally married at

the time of their daughter's birth, she acquired United States citizenship under section 301 (a) (3) (8 U.S.Č. 1401) of the Immigration and Nationality Act of 1952. If they were not legally married at the time of [the daughter's] birth, she acquired citizenship under section 309 (c) (8 U.S.C. 1409) of the Act. If the [parents] felt that their daughter should acquire under section 301 (a) (3) the burden was, therefore, upon them to present sufficient evidence of a valid marriage (22 CFR 50.7). When, in fact, they did not do so it was duly indicated on [the daughter's] Report of Birth Abroad that her natural parents were not married.

A Report of Birth Abroad is a Department of State document in affidavit form which sets forth the facts of a child's birth.

Setting forth the existence of a valid marriage binding such a child's natural parents, or the lack of a marriage, on a Report of Birth is a fact of the child's birth which serves to indicate the provision of law under which such child has acquired United States citizenship. Requiring a notation of the existence of a valid marriage of the natural parents, or the lack thereof, is therefore a valid function of the Department under section 104 (a) (3) of the Immigration and Nationality Act of 1952. No stigma attaches to such a notation; the provisions of the Privacy Act of 1974 and Freedom of Information Act, 5 U.S.C. 552 (a) and (b), guarantee, with few exceptions, that Reports of Birth remain confidential.

The notation in question, indicating lack of a valid marriage of her parents, on [the daughter's] Report of Birth did not "retroactively bastardize" her. It has no such legal effect, in and of itself. In any court proceeding in which [the daughter's] legitimacy might be at issue, the notation would be irrelevant; rather, with regard to [the parents'] marriage, the court would seek more probative evidence that the marriage had taken place in compliance with the marriage laws of [the foreign country where the parents were married]. The ultimate issue, [the daughter's] legitimacy, would be decided according to the appropriate State laws.... As it appears that [the daughter] and her father are domiciliaries of California, and that she was informally acknowledged in accordance with section 230 of the Civil Code of California (1954), her acquisition of United States citizenship under section 301 (a) (3) of the Immigration and Nationality Act of 1952, as made applicable by section 309 (a) of the Act, is guaranteed.

.

While it is regrettable that the status of the [parents'] marriage was the subject of a lengthy inquiry, it is apparent from a review of our files that the difficulty of resolution is attributable to the type and locale of the [parents'] marriage and the type of evidence presented by them. In order to change the name on her passport [the wife] was asked to submit a marriage document and a letter from the ecclesiastical authority, the abbot of the monastery, indicating that the marriage blessing (emphasis added) had been performed in accordance with the local custom. The name on her passport was changed, but the Department's inquiry continued, in fulfillment of its statutory obligation, into the validity of the [parents']

marriage in order to assure a correct decision for children who might be born subsequently. The continuation of such inquiry was due in part also to the lack of a recorded marriage certificate.

When the appropriate authorities of [the foreign country where the marriage took place] were queried concerning this fact and the [parents'] case, they answered by saying that all of the evidence of marriage submitted by the [parents] indicated only that a blessing (emphasis added) had taken place in accordance with local custom and that no evidence of compliance with the . . . formalities of a marriage [of the country where the marriage took place] had been presented by the [parents]. When the [parents] attempted to document the citizenship claim of [the daughter at the U.S. Embassy in the second country] this was the only information concerning their marriage held by the Department. Based upon this statement and analysis by the . . . authorities [of the country where the marriage took place, the [parents'] marriage was deemed not proved, for lack of evidence thereof. This decision was made, for citizenship purposes only, as required by section 104 (a) (3) of the Immigration and Nationality Act, in order to establish the United States citizenship of the child and the section or sections of law under which it acquired that citizenship.

The Department's final decision relied upon a statement of the law obtained from the appropriate . . . authorities by the Library of Congress as well as the totality of the evidence of record. However, in view of the paucity of the evidence in the file and the inconclusiveness of the evidence from [the country where the marriage took place] we still cannot state as a certainty that the [parents] were legally married in [the country where the marriage took place]. Despite this uncertainty the Department resolved all doubts in favor of the validity of the [parents'] marriage.

Dept. of State File No. P77 120-2161.

The text of 22 CFR 51.40 reads as follows:

§ 51.40 Burden of Proof

The applicant has the burden of proving that he and any persons to be included in the passport are nationals of the United States.

Sec. 301(a)(3) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1401 (a) (3), reads as follows:

§ 1401. Nationals and citizens of United States at birth

(a) The following shall be nationals and citizens of the United States at birth:

(3) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

Sec. 309 (a) and (c) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1409 (a) and (c), read as follows: