The Secretary of State to the Ambassador in Italy (Garrett)
Sir: With reference to recent conferences with you in the Department concerning the desirability of concluding an agreement between the United States and Italy with regard to the status and liability for military service and other acts of allegiance of former nationals of either country naturalized in the other, as well as persons born in either country of parents having the nationality of the other, and themselves having the nationality of both countries, I enclose herewith for your consideration a draft of a proposed treaty.
From the discussion of this subject with you, the Department understands that the principal objection of the Italian Government to the conclusion of a treaty with the United States concerning nationality and military service arises from apprehension that the French Government might demand, under the most-favored-nation principle, privileges and immunities for Italians naturalized in France and persons born in France [Page 573] of Italian parents, similar to those contained in the proposed treaty. However, as you have pointed out, the situation of the United States differs from that of France not only in the fact that this country is far distant from Italy, whereas French territory is contiguous to Italian, but also in the fact that the law of the United States does not require involuntary performance of military service in time of peace, as does the law of France. The proposed treaty has been formulated with the point last mentioned in view. As you will observe, not only does the preamble contain the phrase, “taking into account the fact that the law of the United States contains no requirement for the performance of involuntary military service in time of peace”, but Article VII, which relates to the going into effect and termination of the treaty, provides “that, if the Government of the United States shall at any time adopt a law requiring the involuntary performance of military service when the United States is at peace, the Government of Italy may by giving notice in writing immediately terminate this treaty.”
In view of previous correspondence upon the subject, the other articles of the treaty do not seem to require extensive discussion. As you will observe, Article I relates to the meaning of terms, “as used in this Convention.” The first paragraph speaks for itself. With regard to the second paragraph of this article, it may be pointed out that the words “manifest consent” would be applicable to cases of Italians who, after having obtained naturalization as citizens of the United States, return to Italy, reside there for two years and reacquire Italian nationality as a result of such residence, under the provision of Article IX (3) of the Italian Nationality Law of June 13, 1912. The provision of the second sentence of the same paragraph is made necessary by the provisions in the laws of the United States concerning the independent nationality of married women.
Articles II and III, which resemble corresponding articles in other treaties to which the United States is or has been a party, do not seem to require extensive explanation. It may be observed, however, that Article II is intended for the protection of persons naturalized in the one country when they visit the other temporarily for legitimate objects, whereas Article III is intended to protect the interests of the two states in cases in which naturalized citizens return to their country of origin for permanent residence. This Article should be of special benefit to the country of origin, which, according to the provisions of the article, is not obliged to recognize the claims of the country of naturalization upon the naturalized person who has returned to his country of origin for permanent residence, thereby evincing an abandonment of the rights acquired through naturalization.
Article IV of the draft is substantially similar to the corresponding [Page 574] articles in a number of naturalization treaties concluded by this Government. According to this article immunity from liability for military service and from punishment for failure to perform the same begins at the moment when a prospective naturalized citizen establishes a permanent residence in the naturalizing state, although the article does not relieve him from liability which may have accrued prior to that time. This article reflects the conception of expatriation and naturalization which has been held in the United States for many years, and it is hoped that the Italian Government may be persuaded to accept it.
Article V relates to liability for military service in cases of persons who, having been born in the territory of the one country of a parent or parents having the nationality of the other, themselves have the nationality of both countries under their respective laws. This article is substantially similar to the provision of Article I of the protocol adopted at The Hague Conference on Codification of International Law in April, 1930,5 and ratified by this Government July 5, 1932. It is also substantially similar, although broader in scope, to the treaty on this subject between the United States and Norway signed November 1, 1930.6
Article VI relates to immunity from liability for military service or military contributions in cases of nationals of either country residing in the other. It will be observed that it does not refer to persons having the nationality of both countries. According to its terms, a national of the one country residing in the other shall be immune from military service and military contributions unless he has declared his intention to become a national of the country in which he resides. It seems only reasonable that persons who have taken this formal step in the process of naturalization should be held liable for the performance of military service. According to the second paragraph of Article VI, the exemption provided by the first paragraph “does not include personal services which may be required of residents generally, in cases of emergency for policing particular localities with a view to public security.” This provision does not seem to require explanation.
The provision of Article VII, which is deemed to be of special importance is discussed above.
If this draft treaty appears to you to be satisfactory in all respects, you are authorized to submit it to the Italian Government. If, however, you deem it desirable to make any changes in the draft, you will please inform the Department, and the subject will be given immediate consideration. It is hardly necessary to say that the Government of the United States is desirous of concluding a satisfactory treaty with Italy concerning nationality and military obligations. While the treaty would [Page 575] be in its terms reciprocal, it would, in actual practice, be applied principally to cases of persons of Italian origin who have been naturalized as citizens of the United States and to persons born in the United States of Italian parents, who should have found it necessary or desirable to visit Italy. It is believed, however, that the conclusion of such a treaty would be advantageous to Italy as well as to this country, since, while serving to encourage mutual intercourse, it would make it clear that persons of the classes mentioned above, born or naturalized in the United States, could not expect to reside indefinitely in Italy with the protection of this Government and with corresponding immunity from obligations to the country in which they or their parents were born. The treaty would set forth the limitations under which they could expect to receive the protection of this Government, as citizens of the United States, and should have the effect of preventing in the future cases in which conflicting claims are made upon individuals by the two Governments. Such cases are not only a source of constant irritation to the interested Governments, but are also frequently a cause of grievous hardship to the individuals concerned and their wives and children and a serious impediment to normal intercourse between the two countries. It may be added that, judging by the experience of this Government in the past, naturalization treaties are very practical and efficacious in the prevention or settlement of such controversies.
Very truly yours,