711.544/7

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

No. 1853

Sir: The Department refers to its instruction No. 1521 of August 11, 1931, with which it transmitted to you a draft of a proposed treaty between the United States and Switzerland relating to nationality and military service.

You are informed that the Department considers it desirable that the third paragraph of Article I should be eliminated from the above-mentioned draft. The first three paragraphs of Article I read as follows:

“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 third paragraph was proposed by this Government for the purpose of making the treaty agree with the provision of Section 2 of the Act of Congress of March 2, 1907, “that no American citizen shall be allowed to expatriate himself when this country is at war.” This provision has been construed by the Department to mean that, if an American citizen obtains naturalization in a foreign state while the United States is at war, such naturalization does not have the effect of causing a loss of American nationality while the United States remains at war, although it does become effective to that end as soon as [Page 782] the United States ceases to be at war. However, the third paragraph of Article I, as quoted above, might be construed, contrariwise, to mean that whenever either country, a party to the convention, is at war, it may not be obliged to recognize the naturalization of its former nationals in the other country as having terminated their former nationality even after it has ceased to be at war, and is free therefore to treat them as its own nationals. Such a construction, if followed, would nullify to a considerable extent the objects intended to be accomplished by the treaty.

The Department desires that you endeavor to secure the assent of the Swiss Government to the elimination of the third paragraph of Article I of the proposed treaty, not only because it might be susceptible to an unintended construction, but also because it might be regarded as being out of harmony with the Treaty for the Renunciation of War,40 by unnecessarily anticipating the condition which all parties to that treaty seek to avoid.

The Department desires also that you call the attention of the Swiss Government to Article V of the proposed treaty, in relation to dual nationality, with a view to the adoption of certain amendments in the wording thereof. Article V, as embodied in the treaty draft enclosed with the Department’s instruction No. 1521 of August 11, 1931, reads as follows:

“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.”

It is believed that the effect of this Article is not sufficiently comprehensive. For instance, it would not be applicable to the case of a person born in one of the countries of parents who were temporarily residing there and who were nationals of the other country, even though the domicile or habitual place of residence of such person were in that other country. The provisions of Article V, as quoted above, apparently would not prevent such a person, upon a temporary visit to the country of his birth, from being held liable for military service, or for any other national obligation. It is considered by the Department to be advisable that Article V should be similar in effect to Article I of the protocol signed at The Hague on April 12, 1930, relating to military obligations in certain cases of double nationality.41 This [Page 783] result can be achieved by eliminating the words “the state of his birth” and substituting therefor the words “one of the parties”.

It is also believed that the clause of Article V which reads,

“… be held liable for military service or any other national obligation during a temporary stay in the territory of the other party, …”

may, if taken literally, be susceptible to an interpretation not within the contemplation of the Article, namely, that the person concerned would be exempt from military service arid other national obligations in the country of his habitual residence as well as that of his temporary stay. It is suggested, therefore, that to avoid any ambiguity the statement of the provision may be amended to read,

“… be held liable for military service or any other national obligation by the other party during a temporary stay in the territory of such other party, …”

Article V of the proposed treaty with Switzerland, as modified in accordance with the above suggestions, will read as follows:

“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 one of the parties, be held liable for military service or any other national obligation by the other party during a temporary stay in the territory of such other party, nor shall such a person be required by the Government of the latter to pay taxes in lieu of military service.”

When you have ascertained the position of the Swiss Government in regard to this matter it is requested that you inform the Department.

Very truly yours,

For the Acting Secretary of State:
James Grafton Rogers