711.544/7
The Acting Secretary of State to the Minister in Switzerland (Wilson)
Sir: The Department has recently received a number of letters complaining that naturalized citizens of the United States of Swiss origin have been called upon to pay taxes in lieu of military service which accrued subsequent to their acquisition of residence in this country. One of these letters, after mentioning the case of a naturalized citizen who was imprisoned in Switzerland for three months because of non-payment of the military service tax, makes the following statement:
“This question concerns other naturalized American citizens, formerly citizens of the Swiss Government, residing in this vicinity. Some are contemplating visits to Switzerland, others are not. Nevertheless it is annoying to continually receive notice of tax due and also information that if such tax is not paid, the sum due will be deducted from the estate of the parents yet residing in Switzerland.”
In some cases the Department has received complaints from persons born in the United States of naturalized Swiss parents, such persons having been regarded as Swiss citizens, under the Swiss law, because their fathers had never relinquished Swiss nationality in accordance with the requirements of Swiss law.
It is hardly necessary to say that the constant emergence of cases of the kind just mentioned tends to impede normal free intercourse between the United States and Switzerland. It is believed that the uneasiness and ill-feeling engendered in naturalized citizens of Swiss birth through the exactions of the Swiss authorities in lieu of military service taxes far outweigh the advantages obtained through the collection of these taxes. In past years this Government has, through the Legation at Berne, appealed in individual cases, with a view to obtaining exemption from payment of military services taxes, but the necessity of making such appeals is onerous to all concerned. It is believed that the only satisfactory solution of the matter lies in the conclusion of a convention concerning nationality, such convention to cover cases of persons born in the United States of Swiss parents as well as those of persons of Swiss birth who shall have obtained naturalization as citizens of the United States.
The status and rights of persons born in the United States of alien parents and persons of foreign birth who have obtained naturalization as citizens of the United States have always furnished a subject of [Page 776] great concern to this Government. In this connection attention is called to the Joint Resolution of Congress of May 28, 1928,32 reading as follows:
“That the President be, and he is hereby, respectfully requested to endeavor as soon as possible to negotiate treaties with the remaining nations with which we have no such agreement, providing that persons born in the United States of foreign parentage, and naturalized American citizens, shall not be held liable for military service or any other act of allegiance during a stay in the territory subject to the jurisdiction of any such nation while citizens of the United States of America under the laws thereof.”
In pursuance of the resolution just quoted the conclusion of conventions concerning nationality has been proposed to a number of European states with which the United States at present has no such conventions.33 In some instances these proposals have already met with success, and in other cases it is expected that satisfactory agreements will be reached in the not distant future.
The Department is fully aware of the difficulties which have been encountered in the past in efforts to negotiate a treaty of naturalization with Switzerland. The subject is discussed at considerable length in correspondence printed in the Foreign Relations of the United States and in Moore’s Digest of International Law, Volume 3, pages 658–678. The principal difficulty seems to arise from the fact that Swiss citizenship is based primarily upon citizenship in the individual cantons, so that, for relinquishment of Swiss citizenship, application must be made to the canton of which the individual is a citizen. (See Articles 7, 8 and 9 of the Federal Decree of June 25, 1903.)34 On the other hand, Article 44 of the Federal Constitution of May 29, 1874, as amended May 20, 1928,35 contains the following provision:
“Federal legislation determines the regulations applicable to the aquisition or the loss of Swiss nationality.”
In view of the provision of the Swiss constitution just quoted, it would seem possible for the Federal Government of Switzerland to provide, through the medium of a convention with the United States, for the loss of Swiss nationality in cases of persons of Swiss birth who shall have been naturalized as citizens of the United States. From a review of previous correspondence concerning this subject it appears that one of the reasons why the Swiss Government has been reluctant to conclude a naturalization convention with the United States is found in the apprehension that persons of Swiss origin [Page 777] naturalized in this country might, shortly after naturalization, resume their residence in Switzerland and seek to benefit by Swiss laws, while at the same time evading military and other obligations to Switzerland. In this regard it should be pointed out that the Government of the United States has no desire to extend its protection to persons of the class just mentioned. It is interested only in protecting persons who have in good faith established a permanent residence in the United States and obtained naturalization in this country, and those born in the United States of foreign parentage who intend to remain permanently in this country. With regard to naturalized citizens, attention may be called to the second paragraph of Section 15 of the Act of June 29, 1906,36 which authorizes the cancellation db initio of the naturalization of persons who, within five years after procuring naturalization, establish a permanent residence abroad. Attention may also be called to the provision of the second paragraph of Section 2 of the Act of March 2, 1907,37 under which a naturalized citizen of the United States who resides for two years in his native land becomes subject to a presumption that he has ceased to be a citizen of this country, although such presumption may be overcome upon the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under rules prescribed by the Department. These rules contain the condition that the naturalized citizen intends to return to the United States to reside. I enclose herewith a sheet38 containing the statutory provisions just mentioned and printed circular38a containing the rules whereunder the presumption of loss of citizenship arising under the Act of 1907 may be overcome. It may also be observed that the United States Immigration Act of 192439 draws a sharp line of demarcation between immigrants and non-immigrants, and it is not lawful for an alien who has entered this country as a non-immigrant to obtain naturalization. Thus it is clearly the intent of the laws of the United States to grant naturalization only to aliens who have in good faith established themselves permanently in this country. It is for the benefit of such persons only that the naturalization treaty is proposed.
The Department desires that you avail yourself of a suitable opportunity to bring this matter to the attention of the Swiss Government. While the Department will leave it to your discretion to decide the form in which the proposal is to be submitted to the Swiss authorities, it is suggested that you consider the advisability of sending a formal written communication, while at the same time bringing the [Page 778] matter orally to the attention of the Foreign Minister or other appropriate official. As a basis of discussion I enclose herewith a draft of a proposed convention.
Articles I, II, III, V and VI of this draft resemble articles contained in treaties which the United States has concluded with various foreign states and recently proposed to others. Article IV is designed principally to enable persons of Swiss origin who have been naturalized as citizens of the United States to notify the Swiss authorities of such naturalization in order that appropriate records thereof may be made in the cantons from which they came. Under this article the fact of the naturalization may be proven by the original certificate of naturalization or a duplicate thereof, issued by the Court of Naturalization, or by a certificate issued by the Commissioner of Naturalization, “for use by such (naturalized) citizen only for the purpose of obtaining recognition as a citizen of the United States by the country of former allegiance of such citizen”, under the provision of Section 32 (b) of the Immigration Act of June 29, 1906, as amended by Section 9 of the Act of March 2, 1929 (U. S. C. Sup. 3, t. 8, sec. 399 b (b).
It will be observed that Article IV has been drafted in alternate forms. The second form, marked “alternate”, is unilateral and relates on its face to Articles 7–9 of the Swiss Federal Decree of June 25, 1903. It is designed to make it entirely clear that the declaration provided for in Articles 7–9 of the Swiss law will not be required of persons naturalized in the United States, as a condition to their loss of Swiss nationality and discharge from obligations incident thereto. The first form seems preferable. It relates to proof of naturalization rather than the effect of naturalization. The second paragraph of Article I of the convention seems in itself to cancel the provisions of Articles 7–9 of the Swiss Code in so far as the Swiss naturalized in the United States are concerned, since, under the terms of Article I it is the fact of naturalization in the United States and not the formal discharge by the Swiss authorities which terminates the Swiss nationality.
Very truly yours,
- See Foreign Relations, 1928, vol. i, pp. 494 ff.; also 45 Stat. 789.↩
- See ibid., 1929, vol. i, pp. 439 ff.↩
- Recueil officiel des lots et ordonnances de la Confédération Suisse, nouvelle série, tome xix, p. 652.↩
- Constitution fédérale tie la Confédération Suisse, du 29 mai, 1874, avec les modifications survenues jusqu’au 31 octobre, 1928, p. 33.↩
- 34 Stat. 596, 601.↩
- 34 Stat. 1228.↩
- Not printed.↩
- Not attached to file copy of this document.↩
- 43 Stat. 153.↩