711.544/7

The Acting Secretary of State to the Minister in Switzerland (Wilson)

No. 1521

Sir: The Department has recently received a number of letters complaining that naturalized citizens of the United States of Swiss origin have been called upon to pay taxes in lieu of military service which accrued subsequent to their acquisition of residence in this country. One of these letters, after mentioning the case of a naturalized citizen who was imprisoned in Switzerland for three months because of non-payment of the military service tax, makes the following statement:

“This question concerns other naturalized American citizens, formerly citizens of the Swiss Government, residing in this vicinity. Some are contemplating visits to Switzerland, others are not. Nevertheless it is annoying to continually receive notice of tax due and also information that if such tax is not paid, the sum due will be deducted from the estate of the parents yet residing in Switzerland.”

In some cases the Department has received complaints from persons born in the United States of naturalized Swiss parents, such persons having been regarded as Swiss citizens, under the Swiss law, because their fathers had never relinquished Swiss nationality in accordance with the requirements of Swiss law.

It is hardly necessary to say that the constant emergence of cases of the kind just mentioned tends to impede normal free intercourse between the United States and Switzerland. It is believed that the uneasiness and ill-feeling engendered in naturalized citizens of Swiss birth through the exactions of the Swiss authorities in lieu of military service taxes far outweigh the advantages obtained through the collection of these taxes. In past years this Government has, through the Legation at Berne, appealed in individual cases, with a view to obtaining exemption from payment of military services taxes, but the necessity of making such appeals is onerous to all concerned. It is believed that the only satisfactory solution of the matter lies in the conclusion of a convention concerning nationality, such convention to cover cases of persons born in the United States of Swiss parents as well as those of persons of Swiss birth who shall have obtained naturalization as citizens of the United States.

The status and rights of persons born in the United States of alien parents and persons of foreign birth who have obtained naturalization as citizens of the United States have always furnished a subject of [Page 776] great concern to this Government. In this connection attention is called to the Joint Resolution of Congress of May 28, 1928,32 reading as follows:

“That the President be, and he is hereby, respectfully requested to endeavor as soon as possible to negotiate treaties with the remaining nations with which we have no such agreement, providing that persons born in the United States of foreign parentage, and naturalized American citizens, shall not be held liable for military service or any other act of allegiance during a stay in the territory subject to the jurisdiction of any such nation while citizens of the United States of America under the laws thereof.”

In pursuance of the resolution just quoted the conclusion of conventions concerning nationality has been proposed to a number of European states with which the United States at present has no such conventions.33 In some instances these proposals have already met with success, and in other cases it is expected that satisfactory agreements will be reached in the not distant future.

The Department is fully aware of the difficulties which have been encountered in the past in efforts to negotiate a treaty of naturalization with Switzerland. The subject is discussed at considerable length in correspondence printed in the Foreign Relations of the United States and in Moore’s Digest of International Law, Volume 3, pages 658–678. The principal difficulty seems to arise from the fact that Swiss citizenship is based primarily upon citizenship in the individual cantons, so that, for relinquishment of Swiss citizenship, application must be made to the canton of which the individual is a citizen. (See Articles 7, 8 and 9 of the Federal Decree of June 25, 1903.)34 On the other hand, Article 44 of the Federal Constitution of May 29, 1874, as amended May 20, 1928,35 contains the following provision:

“Federal legislation determines the regulations applicable to the aquisition or the loss of Swiss nationality.”

In view of the provision of the Swiss constitution just quoted, it would seem possible for the Federal Government of Switzerland to provide, through the medium of a convention with the United States, for the loss of Swiss nationality in cases of persons of Swiss birth who shall have been naturalized as citizens of the United States. From a review of previous correspondence concerning this subject it appears that one of the reasons why the Swiss Government has been reluctant to conclude a naturalization convention with the United States is found in the apprehension that persons of Swiss origin [Page 777] naturalized in this country might, shortly after naturalization, resume their residence in Switzerland and seek to benefit by Swiss laws, while at the same time evading military and other obligations to Switzerland. In this regard it should be pointed out that the Government of the United States has no desire to extend its protection to persons of the class just mentioned. It is interested only in protecting persons who have in good faith established a permanent residence in the United States and obtained naturalization in this country, and those born in the United States of foreign parentage who intend to remain permanently in this country. With regard to naturalized citizens, attention may be called to the second paragraph of Section 15 of the Act of June 29, 1906,36 which authorizes the cancellation db initio of the naturalization of persons who, within five years after procuring naturalization, establish a permanent residence abroad. Attention may also be called to the provision of the second paragraph of Section 2 of the Act of March 2, 1907,37 under which a naturalized citizen of the United States who resides for two years in his native land becomes subject to a presumption that he has ceased to be a citizen of this country, although such presumption may be overcome upon the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under rules prescribed by the Department. These rules contain the condition that the naturalized citizen intends to return to the United States to reside. I enclose herewith a sheet38 containing the statutory provisions just mentioned and printed circular38a containing the rules whereunder the presumption of loss of citizenship arising under the Act of 1907 may be overcome. It may also be observed that the United States Immigration Act of 192439 draws a sharp line of demarcation between immigrants and non-immigrants, and it is not lawful for an alien who has entered this country as a non-immigrant to obtain naturalization. Thus it is clearly the intent of the laws of the United States to grant naturalization only to aliens who have in good faith established themselves permanently in this country. It is for the benefit of such persons only that the naturalization treaty is proposed.

The Department desires that you avail yourself of a suitable opportunity to bring this matter to the attention of the Swiss Government. While the Department will leave it to your discretion to decide the form in which the proposal is to be submitted to the Swiss authorities, it is suggested that you consider the advisability of sending a formal written communication, while at the same time bringing the [Page 778] matter orally to the attention of the Foreign Minister or other appropriate official. As a basis of discussion I enclose herewith a draft of a proposed convention.

Articles I, II, III, V and VI of this draft resemble articles contained in treaties which the United States has concluded with various foreign states and recently proposed to others. Article IV is designed principally to enable persons of Swiss origin who have been naturalized as citizens of the United States to notify the Swiss authorities of such naturalization in order that appropriate records thereof may be made in the cantons from which they came. Under this article the fact of the naturalization may be proven by the original certificate of naturalization or a duplicate thereof, issued by the Court of Naturalization, or by a certificate issued by the Commissioner of Naturalization, “for use by such (naturalized) citizen only for the purpose of obtaining recognition as a citizen of the United States by the country of former allegiance of such citizen”, under the provision of Section 32 (b) of the Immigration Act of June 29, 1906, as amended by Section 9 of the Act of March 2, 1929 (U. S. C. Sup. 3, t. 8, sec. 399 b (b).

It will be observed that Article IV has been drafted in alternate forms. The second form, marked “alternate”, is unilateral and relates on its face to Articles 7–9 of the Swiss Federal Decree of June 25, 1903. It is designed to make it entirely clear that the declaration provided for in Articles 7–9 of the Swiss law will not be required of persons naturalized in the United States, as a condition to their loss of Swiss nationality and discharge from obligations incident thereto. The first form seems preferable. It relates to proof of naturalization rather than the effect of naturalization. The second paragraph of Article I of the convention seems in itself to cancel the provisions of Articles 7–9 of the Swiss Code in so far as the Swiss naturalized in the United States are concerned, since, under the terms of Article I it is the fact of naturalization in the United States and not the formal discharge by the Swiss authorities which terminates the Swiss nationality.

Very truly yours,

W. R. Castle
[Enclosure]

Proposed Convention on Nationality Between the United States and Switzerland

The Government of the United States of America and the Government of Switzerland, being desirous of regulating the nationality of those persons who have emigrated or who may emigrate from the United States of America to Switzerland, and from Switzerland [Page 779] to the United States of America, and of the liability for military service and other national obligations of such persons and persons born in the territory of either state of parents having the nationality of the other, have resolved to conclude a treaty on this subject and for that purpose have appointed their plenipotentiaries, that is to say: The President of the United States of America: . . . . . . . . . and His Excellency the President of the Swiss Confederation: . . . . . . . . . . Who, having communicated to each other their full powers, found to be in good and due form, have agreed upon the following Articles:

Article I

Nationals of the United States who have been or shall be naturalized in Swiss territory, shall be held by the United States to have lost their former nationality and to be nationals of Switzerland.

Reciprocally, nationals of Switzerland who have been or shall be naturalized in territory of the United States shall be held by Switzerland to have lost their former nationality and to be nationals of the United States.

The foregoing provisions of this Article are subject to any law of either country providing that its nationals do not lose their nationality by becoming naturalized in another country in time of war.

The word “national”, as used in this convention, means a person owing permanent allegiance to, or having the nationality of, the United States or Switzerland, respectively, under the laws thereof.

The word “naturalized” refers only to the naturalization of persons of full age, upon their own applications, and to the naturalization of minors through the naturalization of their parents. It does not apply to the acquisition of nationality by a woman through marriage.

Article II

Nationals of either country, who have or shall become naturalized in the territory of the other, as contemplated in Article I, shall not, upon returning to the country of former nationality, be punished for the original act of emigration, or for failure to respond to calls for military service accruing after bona fide residence was acquired in the territory of the country whose nationality was obtained by naturalization, nor shall they be required to pay taxes in lieu of such service.

Article III

If a national of either country, who comes within the purview of Article I, shall renew his residence in his country of origin without the intent to return to that in which he was naturalized, he shall be held to have renounced his naturalization.

[Page 780]

The intent not to return may be held to exist when a person naturalized in one country shall have resided more than two years in the other; but this presumption may be overcome by evidence to the contrary.

Article IV

A certificate issued by the court or other governmental organ of either state by which naturalization was conferred in a particular case, or by the federal department having supervision of naturalization, authenticated by the Department of State of the United States or the Federal Political Department of Switzerland, as the case may be, shall be accepted in the state of origin as sufficient evidence, but not the sole evidence, of the naturalization.

Article IV (Alternate)

If a former Swiss national who has obtained, or shall obtain, naturalization as a citizen of the United States submits to the appropriate authorities of the canton from which he came, through a Swiss consul in the United States or otherwise, a properly authenticated certificate of his naturalization issued by the court in which he was naturalized or by the Commissioner of Naturalization, Department of Labor, this shall be regarded as prima facie evidence, not only (1) of the fact of his naturalization as a citizen of the United States in due course of law but also (2) that he was of legal capacity at the time of his naturalization, and (3) had at that time established his domicile in the United States. The submission of such evidence shall be sufficient to cancel any claims made by Swiss authorities on the naturalized citizen upon the ground that he is a Swiss national, if such claims accrued subsequent to his establishment of a domicile in the United States, but such submission shall not be regarded as a condition precedent to the change of nationality resulting from the naturalization.

In the case of minors naturalized under the laws of the United States through the naturalization of their parents, the Swiss authorities shall waive the formality of requiring the submission of evidence of legal capacity at the time of said naturalization.

Article V

A person born in the territory of one party of parents who are nationals of the other party, and having the nationality of both parties under their laws, shall not, if he has his habitual residence, that is, the place of his general abode, in the territory of the state of his birth, be held liable for military service or any other national obligation during a temporary stay in the territory of the other party, nor shall such a person be required by the Government of the latter to pay taxes in lieu of military service.

[Page 781]

Article VI

The present Treaty shall go into effect immediately upon the exchange of ratifications, and shall continue in force for ten years. If neither party shall have given to the other six months previous notice of its intention then to terminate the Treaty, it shall further remain in force until the end of twelve months after either of the contracting parties shall have given notice to the other of such intention.

In Witness Whereof, the respective plenipotentiaries have signed this Treaty and have hereunto affixed their seals.

Done in duplicate at Berne, this . . . . . day of . . . . . . .

. . . . . . .

. . . . . . .

  1. See Foreign Relations, 1928, vol. i, pp. 494 ff.; also 45 Stat. 789.
  2. See ibid., 1929, vol. i, pp. 439 ff.
  3. Recueil officiel des lots et ordonnances de la Confédération Suisse, nouvelle série, tome xix, p. 652.
  4. Constitution fédérale tie la Confédération Suisse, du 29 mai, 1874, avec les modifications survenues jusqu’au 31 octobre, 1928, p. 33.
  5. 34 Stat. 596, 601.
  6. 34 Stat. 1228.
  7. Not printed.
  8. Not attached to file copy of this document.
  9. 43 Stat. 153.