711.514/9
The Ambassador in France ( Herrick ) to the Secretary of State
[Received March 27.]
Sir: I have the honor to acknowledge the receipt of the Department’s Instruction No. 2993 of December 1, 1928,17 (File No. 711.514/), directing me as to the course of action which should be pursued by the Embassy with a view to giving effect to the provisions, so far as France is concerned, of the Joint Resolution of Congress approved on May 28, 1928, relative to the status of persons born in the United States of foreign parentage and of naturalized American citizens when visiting the country of parental affiliation or of origin. The Embassy is instructed to approach the French Government in an effort to reach an accord which would cover the points raised in the Joint Resolution and other problems of dual nationality, and to that end four categories of understandings are proposed.
I am requested first, to propose agreement upon an article reading 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 act of allegiance during a temporary stay in the territory of the other party.”
As the Department was advised in the Embassy’s despatches No. 7344 and 8030 respectively of April 8 and November 15, 1927,18 non-reciprocal agreements, of a nature somewhat analogous to the above, were concluded with France by Peru on March 16, 1927,19 and by [Page 453] Paraguay on August 30, 1927.20 The French text, and a translation thereof, of a similar agreement concluded by Argentina on January 26, 1927, is now enclosed.21 By the latter agreement the French Government agrees not to hold a person born in the Argentine liable to French peace time military service if he can produce a document from the Argentine Government to the effect that he has fulfilled his military obligations in that country. As a partial corollary, persons born in the Argentine and who have fulfilled the French military requirements are excused from military service in Argentina. The juridical status of the person concerned, as regards nationality, is specifically excepted from the scope of the agreement.
I have been orally assured by the Ministry for Foreign Affairs that such an arrangement as that made with Argentina may easily be effected between the United States and France. The arrangement would procure the admission of all those rights envisaged in the cited proposal of the Department with the exception that the formality must be accomplished by producing a document certifying to the performance of military service, (or that such requirement does not exist), and that the agreement does not include in its provisions immunity from “any other act of allegiance”.
However, I can see no useful purpose in entering into an accord of the type signed by the Argentine and other South American countries since all the rights to be obtained thereunder are now automatically accorded (without the parallel admission of the equivalent value of French military service) by Article 99 of the French Recruitment Law of March 31, 1928. This article provides:
“By derogation from the dispositions of Articles 2 and 98 of the present law, young men who, by the circumstances of their birth abroad, are at the same time French and subjects of a foreign country other than the countries of Europe and the neighboring countries of the Mediterranean, are exempt from military service, in time of peace, if they prove, by the production of an official document, either that they have fulfilled the military law of the foreign country of which they are subjects, or that obligatory military service is not there instituted.”
It will be readily seen that, by the terms of Article 99, a person born in the United States of French parents is not held liable for French military service if he presents a document to the effect that obligatory military service is not instituted in the United States. This simple document the Embassy has been in the habit of issuing upon request and proof of citizenship. So far as concerns the exemption by France from military service of persons born in the United States, it should be possible to reach an agreement going a step further than the Law [Page 454] of March 31, 1928, by exempting such persons from the necessity of producing the certificate of service called for by Article 99. Such understanding would not, of course, cover the point of “any other act of allegiance” envisaged by the Department, but would have the advantage of not binding the United States to corresponding concessions. In this connection, it should be stated parenthetically that, since I am confident that when the French Government is approached in the matter, a definition of “any other act of allegiance” will be asked, I should be glad to receive an expression of precisely what sense the Department intends this phrase to convey.
The proposal of the Department, being reciprocal in its nature, would by implication admit the right of France to subject the children born in France of American parents to obligatory military service. Of course such a child, upon attaining legal age may repudiate French citizenship in the manner provided for in Article 9, paragraph 2, of the Law of August 10, 1927, and as further governed by Article 2 of that law, and so avoid military service. While it is obviously the obligation of such persons, upon reaching majority, themselves promptly to clarify their position as regards nationality, it is perhaps not superfluous to remark, against the event that a controversial situation should arise from the negotiation of a reciprocal agreement of the kind, that the number of individuals who would be affected thereby is a large and constantly increasing one. It may be, however, that the Department, in contemplating this step, has in mind paving the way for the termination of the dual nationality of those born and permanently living abroad when they shall have attained legal age.
As to the Department’s second proposal that, if the French Government is willing to conclude a Naturalization Treaty, it might be desirable to include therein the suggested article concerning dual nationality, it should be stated that I have ascertained from officials at the Foreign Office to whom the matter has been tentatively broached, that the French viewpoint has not altered since the conversations on the subject carried on in the years 1925 and 1926. It will be recalled from the Embassy’s despatch No. 6218 of April 1, 1926,22 that a considerable number of points of difficulty would have to be overcome before such a treaty would be acceptable to the French Government. I therefore feel that, in view of the obstacles to the negotiation of a treaty of this character, it would be preferable not to attempt it for the moment, but rather, by provisional understandings on individual points of contention, to prepare the way step by step for the broader ultimate agreement.
Thirdly, I am instructed to endeavor to obtain an informal agreement which would protect from molestation during temporary sojourns [Page 455] in France persons born in France but naturalized in the United States, and persons born in the United States of French parents. The latter classification of persons is already covered by the terms of the Department’s first proposal. In view of the provisions of Article 99 of the Law of March 31, 1928, such an agreement as applied to them should be possible of arrangement and I shall only await clarification by the Department of whether the agreement should be reciprocal or unilateral and of the phrase “any other act of allegiance”, to propose the matter to the French authorities.
As to the application of such an informal agreement to naturalized Americans of French origin, it must not be forgotten that in accord with Article 9, paragraph 1 of the Law of August 10, 1927, although a Frenchman naturalized abroad loses his French citizenship, nevertheless such loss of citizenship does not become effective until the expiration of a period of ten years counted from the date of his incorporation into the active army unless the repudiation of citizenship shall have been authorized by the French Government. On account of these legal limitations it would probably be difficult to induce the French authorities to give up this ten year period of control over naturalized Americans of French origin. Possibly the period of control might be reduced or eventually the French Government might be persuaded to abandon it on the ground that the United States is a non-European country (a distinction drawn in Article 99 of the Law of March 31, 1928). When presenting such project as the Department may decide to recommend, I shall be glad to inquire concerning the possibility of reaching a provisional accord relative to naturalized citizens, but am not sanguine with regard thereto.
Finally the Department instructs me to inquire relative to the attitude of the French Government concerning the termination of one nationality or the other, in cases of a dual nationality arising at birth, upon attainment of majority or some other prescribed age. This seems to me an important issue and one that should if possible be definitely determined. I am inclined to believe that if the Government of the United States were willing to accept the domicile of such person at the age of twenty-one to twenty-two as the governing factor—of course thus alienating the children born in France of American parents and still residing in this country at that time—the French authorities would consider the proposal sympathetically. I am doubtful, however, if in the face of the legal provisions of Article 9 of the Law of August 10, 1927, the right to opt could be denied the child of French parents born in the United States. I thoroughly agree with the Department that the confusion resultant from dual nationality, whether by birth or naturalization, should be done away with through understandings to be reached with the French Government. As previously [Page 456] stated, however, it would seem best to accomplish the reform step by step rather than, through attempting to effect an agreement of too broad a scope, to reach an impasse. When I shall have received the further instructions herewith requested of the Department, the Embassy will be in a position informally to discuss the matter with the Foreign Office and to determine upon what questions a definite agreement may reasonably be sought.
I have [etc.]
- Foreign Relations, 1928, vol. i, p. 499.↩
- Neither printed.↩
- Text printed in Journal Officiel, April 5, 1927, p. 3794.↩
- British and Foreign State Papers, vol. cxxvii, p. 499.↩
- League of Nations Treaty Series No. 1457, vol. lxii, p. 85.↩
- Foreign Relations, 1926, vol. ii, p. 108.↩