The Secretary of State to the Minister in Norway ( Swenson )

No. 517

Sir: The Department has received your despatch No. 1602 of March 10, 1930, concerning the proposal of this Government looking to the conclusion of a treaty with Norway, under which persons born in either country, of parents having the nationality of the other, and continuing to reside in the country of birth, may visit the country of their parents’ nationality temporarily, without being held for the performance of military service or other acts of allegiance.

Accompanying your despatch are a copy of your note of January 10, 1930, addressed to the Norwegian Minister of Foreign Affairs, and a copy of the reply received thereto under date of March 7, 1930.6 It is noted that the Norwegian Government has expressed its willingness to conclude an agreement containing the following provision:

“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.

“The stay is to be considered as temporary provided it does not exceed two years.”

The first paragraph, being identical in form with that suggested by the Department, is satisfactory. The second paragraph, suggested by the Norwegian Government, is open to objection. As it stands, a stay in Norway protracted beyond two years is to be conclusively considered as permanent. The Department feels that situations may arise in which such a result would be highly undesirable. For the full protection of citizens of the United States who may take temporary residence in Norway, it seems necessary to predicate no more than a rebuttable presumption of permanency on a stay protracted beyond two years.

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The Department’s despatch No. 442 of December 1, 1928, suggests the following “proviso” in this connection. “Provided, That, if such stay is protracted beyond the period of one year, it may be presumed to be permanent, in the absence of sufficient evidence to the contrary.”

You are instructed to substitute for the phrase “period of one year”, the phrase “period of two years”, and to re-submit said “proviso”, so modified, for the consideration of the Norwegian Government.7

There appears to be some uncertainty as to the form which the contemplated agreement shall take. The following sentence appears in the reply of the Minister for Foreign Affairs to your note of January 10, 1930. “It will be considered by Norway as having been concluded as soon as a favorable reply is received from you.” Seemingly, the Norwegian Government is desirous of putting the agreement into effect by exchange of notes. The Department is unable to assent to such procedure. Negotiations were undertaken with the Norwegian Government pursuant to a Joint Resolution of Congress, set out in the Department’s despatch No. 442 of December 1, 1928. This Resolution clearly contemplates the execution of formal treaties. Moreover, apart from the express language of this Resolution, the powers granted the Congress under the Constitution preclude the conclusion of any international agreement, covering this subject, by the exercise of the executive power only.

You are instructed to inform the Norwegian Government to this effect and to renew your suggestion for a treaty.

You will also express to the Norwegian Minister for Foreign Affairs the appreciation of this Government for the willingness manifested by his Government to conclude an agreement on this subject.

I am [etc.]

For the Secretary of State:
J. P. Cotton
  1. Neither printed.
  2. Further correspondence (not printed) resulted in the wording of the “proviso” as it appears in the treaty text, infra, art. i, second paragraph.