The Secretary of State to the Minister in Finland (Brodie)
Sir: The Department has received your despatch No. 881, of January 3, 1933,4 concerning the proposed military service convention between the United States and Finland.
It is noted that Article I of the Department’s draft convention which accompanied its instruction of August 2, 1932, is acceptable to the Finnish Government.
With respect to Article II of the Department’s draft, you state that Mr. Kivikoski, the Director of Juridical affairs of the Finnish Foreign Office, referred to the general rule of the Finnish law according to which a Finnish national who becomes naturalized in another country loses his Finnish nationality. After pointing out that such a person is not held liable for military service, he added that, were there no exception to this law, there would be no need for Article II.
It may be observed, however, that non-liability for military service, in the absence of a treaty provision, would depend on municipal law and not on an international obligation. Furthermore, even if there were no exception, the Department would prefer to have Article II included in the convention, if for no other reason, because its omission might, when the proposed convention is concluded and published, prompt other States, whose laws are not similar to the Finnish law, to request the conclusion of similar conventions.
The above discussion might seem academic in its nature in view of the fact that the Finnish law contains the following exception to the general rule that naturalization terminates former nationality:
“However, a male citizen of Finland, whose age is between seventeen and twenty-eight years and who has not fulfilled as a conscript his active military service and who has not been legally exempted from military service, may lose his Finnish citizenship only by a special decree of the President of the republic.” (Law of June 17, 1927, 1, Flournoy and Hudson, A Collection of Nationality Laws, New York, 1929, 239.)
It is believed, however, that the above discussion would be useful in dispelling any idea which might probably be in Mr. Kivikoski’s mind that the inclusion of Article II was desired by this Government only because of the existence of the exception.
The exception appears to be also at the basis of the objection of the Foreign Office to Article II of the Department’s draft. It may be pointed out, however, that Article II of the Finnish counter-proposal transmitted with your despatch under acknowledgment does not purport to [Page 149]make a Finnish male person who, as a result of the exception, has not lost his Finnish nationality by being naturalized in another country, subject to the provisions of the Finnish military law. On the contrary, such a person is expressly exempted from the performance of military service. The phrase “without losing their former nationality” in Article II of the Finnish draft, which is not in the Department’s draft, would seem to have been added in order to imply that naturalization in a foreign country does not terminate Finnish nationality in a case of a Finn who is within the exception quoted above. The Finnish Government is aware of this Government’s position that even in that class of cases naturalization should be regarded as terminating former nationality. If the last quoted phrase is included, it would carry with it a clear implication contrary to this Government’s position, while, if it is omitted—this should be emphasized in your discussions with the Foreign Office—Article II would relate merely to liability for military service and would leave open the question whether naturalization should be regarded as terminating former nationality. For your own information it may be observed that this Government could not in any case enter into a treaty containing the phrase quoted above.
The only other difference between Article II of the Department’s and Article II of the Finnish draft is that the latter provides that a person shall be exempt from military service only “during a temporary stay in the country of original nationality”. It appears from your despatch under acknowledgment that this phrase and Article III of the Finnish draft are intended as a substitute for the provisions of Article III of the Department’s draft.
The Finnish Government objects to the last mentioned Article because the Finnish law contains no provisions for the renunciation of acquired foreign nationality or of resumption of Finnish nationality through the mere act of returning to and residing in Finland for a period of two years, and points out that under Finnish law every foreigner, even though a former Finnish national must be naturalized in due order, though former Finnish nationals are granted special facilities in the matter. You will please make clear to the Foreign Office that Article III was not intended by the Department to mean, nor does it provide that, if a former Finnish national who had been naturalized as an American citizen should establish a permanent residence in Finland he would thereby résumé Finnish nationality. It merely provides that such a person would be held to have renounced his American naturalization, leaving the question of his re-acquisition of Finnish nationality for determination by the municipal law of Finland. This Article would not only make it unnecessary for the Government of the United States to extend protection to a Finn who, after naturalization in the United [Page 150]States, had acquired a permanent residence in his former country, but would enable the Finnish Government to object to such extension of protection. A detailed discussion of the policy and reasons back of this Article is contained in the Department’s instruction No. 99, of December 1, 1928,5 concerning the conclusion of a naturalization treaty between the United States and Finland.
An important corollary of Article III would be that the naturalizing state could not claim as its nationals, jure sanguinis, children born to a naturalized citizen after he had acquired a permanent residence in his country of origin.
The provisions in Articles II and III of the Finnish draft regarding military liability during a temporary stay in the country of origin are similar to those in Article I of the treaty between the United States and Norway, signed at Oslo, November 1, 1930.6 While the Department prefers Article III of its draft, it would be prepared to accept the Finnish counter-proposal regarding this Article if the Finnish Government should definitely refuse to accept the provisions of the former. However, this should not be indicated to the Foreign Office in any way unless and until you are convinced of the futility of any further efforts to have Article III of the Department’s draft accepted.
You are, therefore, requested to present a note to the Foreign Office in the sense indicated above and to express the hope that after further study the Finnish Government may find it possible to enter into an agreement on the basis of the draft convention submitted with the Department’s instruction of August 2, 1932.
Very truly yours,