711.554/11

The Belgian Ambassador ( Van der Straten-Ponthoz ) to the Secretary of State

[Translation]
D. 2668
No. 2919

Mr. Secretary: In a letter dated April 17 last, No. 855.012/2[21], Your Excellency was good enough to send me certain information concerning the sense which the American authorities attributed to the word “naturalized” appearing in the Belgo-American Convention of November 16, 1868.

I hastened to communicate that information to the Ministry of Foreign Affairs at Brussels.

I have just been commissioned and have the honor to express below to Your Excellency the viewpoint of the King’s Government regarding this question.

The Convention concluded between Belgium and the United States of America on November 16, 1868, approved by the law of July 2, 1869, provides in Article 1:

“Belgians who may or shall have been naturalized in the United States will be considered by Belgium as citizens of the United States. Reciprocally, citizens of the United States who may or shall have been naturalized in Belgium will be considered by the United States as citizens of Belgium.” Article 4 on the other hand specifies that:

“Belgians naturalized in the United States shall be considered as Belgians by the United States, when they shall have recovered their character as Belgians, according to the laws of Belgium. Reciprocally, citizens of the United States naturalized in Belgium, shall be considered by Belgium as citizens of the United States when they shall have recovered their character as citizens of the United States, according to the laws of the United States.”

According to the opinion of the American authorities, the term “naturalized” appearing in Article 1 applies to any form of acquisition of American nationality, other than acquisition by the fact of birth on American soil.

In this way there shall be considered as naturalized, not only a minor who, residing with his parent in the United States, acquires American nationality from the fact of the naturalization of such parent, but also a minor who, residing abroad at the time of the naturalization of his parent, subsequently establishes himself in the United States and acquires American nationality, at the date of his establishment.

This interpretation gives rise to new cases of loss of Belgian nationality.

[Page 17]

The case of a minor who, residing in the United States, acquires American nationality from the fact of the naturalization conferred upon his parent does not present any difficulty. It corresponds exactly to the possibility foreseen in Article 18, 4th of the coordinated laws on Belgian nationality and there is no need to appeal to the Belgo-American Convention to verify the fact that the party concerned has lost Belgian citizenship.

Quite different is the case of the individual to whom the benefit of the naturalization conferred on his parent is recognized only as of the date when he establishes himself in the United States. That is a method of acquiring a foreign nationality which is not found in Belgian laws. Is it a question of voluntary acquisition of nationality or an acquisition ipso facto?

In the opinion of the King’s Government the nonemancipated minor child of a Belgian who has voluntarily acquired a foreign nationality does not lose his Belgian citizenship unless he has acquired the foreign nationality “at the same time as his parent.” Nothing in the preparatory work of the Belgian law of May 15, 1922, on nationality in which this text appears permits of attributing to this last clause a meaning other or more extensive than its literal meaning.

The American authorities point out that, at the time of the conclusion of the Treaty of 1868, the children of a naturalized person were considered by them [the American authorities]10a as being themselves naturalized. Would it not be necessary to declare, under such conditions, that the general provision of the first article of the Convention—having the force of law—covers also the case of the children of a naturalized person, acquiring American nationality subsequently to the naturalization of their parent and only as a consequence of their establishment in the United States?

The Belgian authorities can not agree to such an interpretation.

It should be noted in the first place that the main purpose of the Convention was, not to settle conflicts of laws in the matter of nationality, but rather to moderate, in so far as they were too strict, the legal provisions relating to military obligations. It was considered in particular that it was proper to prevent anyone who has expatriated himself before complying with the obligations of military service from being considered as refractory and prosecuted on that charge in his native country, in spite of his naturalization and a prolonged residence in the other country. That was the essential purpose of the Convention. It is specified in Article 3 thereof. Article 1 providing that a Belgian who may or shall have been naturalized in the United States will be considered by Belgium as a citizen of the United States and reciprocally, this article, we say, only confirms a principle of domestic law, justifying the mutual concession made in Article 3.

[Page 18]

The scope of Article 1 is thus remarkably diminished. It is confined in any case to the naturalized person himself, and in no way contemplates the nationality of his descendants.

The mere reading of the preamble and of the contents of the Convention would suffice moreover to convince us that this is indeed the case:

“His Majesty the King of the Belgians and the President of the United States of America, led by the wish to regulate the citizenship of those persons who emigrate from Belgium to the United States of America and from the United States to Belgium, have resolved to conclude …”

The body of the Convention deals with the question of the citizens of one of the two countries who may or shall have been naturalized in the other; of the prosecution of the citizens of one of the two countries who may have committed crimes or offenses in their native country; of the military obligations of the naturalized persons and of the recovery of the nationality of origin by the naturalized persons. How can the minor children of naturalized persons be included in this group?

In support of the theory that they maintain, the American authorities submit this argument, namely that, when the agreement was negotiated “the United States considered that the first article would be applicable to any Belgian child having acquired the status of citizen of the United States as a consequence of the naturalization of his parent.”

This statement may be answered by the following statement, namely, that at the time when the agreement was concluded, the Belgian authorities could not contemplate the application of the first article to descendants of a naturalized person. Under the system of the Civil Code, which remained in force until the law of June 8, 1909, the naturalization of a Belgian abroad, as well as that of a foreigner in Belgium, had only personal effects. The children already born did not acquire the new status of their parent. How can it be maintained then, in the absence of any definition, that such children would have been included in the naturalization conferred upon their parent, when no legal provision in domestic legislation affirmed that principle? It is evident that if such a consequence had been contemplated, mention of it would have been made in the Convention or at least in a special provision of the law approving the Convention, a provision which would have created a new method of loss of Belgian nationality.

The Belgian Government finds itself compelled to maintain that the Convention of November 16, 1868, did not nullify the principles of Belgian domestic law, to which in particular it refers in Article 4. Its [Page 19] terms are sufficiently elastic to adapt themselves to successive amendments in the said legislation. The latter must, however, remain the basis from which we can not deviate in determining the causes of loss of Belgian nationality. The Convention can have no influence except upon the methods to which such loss is subject. We shall admit, in this connection, that Article 16 of the law of August 4, 1926, making the loss of nationality subject to Royal authorization, in case the individual who has himself naturalized abroad is still subject in Belgium to the obligations of the active army or the reserve, can not be applied to Belgians who obtain American naturalization.

In spite of the researches made it has not been possible to discover in the archives which the Belgian Departments concerned still possess at the present time concerning the retroactive effects of the Convention of 1863 [1868?] a single note which can invalidate the thesis maintained by the Belgian authorities.

I should be grateful to Your Excellency if you would be good enough to have this question studied by the services concerned, and advise me whether they support the viewpoint of the King’s Government.

I avail myself [etc.]

Robert van der Straten-Ponthoz
  1. Brackets appear in the file translation.