The Secretary of State to the Belgian Ambassador (Van der Straten-Ponthoz)
Excellency: I have the honor to acknowledge the receipt of your note No. 2919 of July 29, 1936, in reply to my note of April 17, 1936, which in turn was a reply to your note No. 1005 of March 23, 1936, concerning the question whether Article I of the Naturalization Convention of November 16, 1868, between the United States and Belgium is applicable to minor children acquiring citizenship through the naturalization of their parents in accord with the laws of either of the contracting parties.
You state that it is the view of your Government that the scope of Article I is confined in any case to the naturalized person himself, and in no way contemplates the nationality of his descendants.
In support of that view you assert 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, insofar as they were too strict, the legal provisions relating to military obligations. That purpose you state is specified in Article III of the Convention.[Page 20]
It may be readily conceded that one of the principal purposes of the Convention was to prevent the punishment for evasion of military service of persons who, in good faith, had become naturalized in the other state, and had resided there for a number of years. However, this Government cannot agree that the principal obligation of the Convention is to be found in Article III. On the contrary, it is the view of this Government that the essential obligation of the Convention is the unlimited and reciprocal undertaking stated in Article I to recognize as citizens of the other contracting power those who shall have been naturalized there. Article III limits the broad obligation assumed in Article I by reserving the right to either contracting party to hold to the obligation of military service, despite naturalization in the other country and residence in its territory for five years, persons guilty of “desertion from organized and embodied military or naval service, or those that may be assimilated thereto by the laws of the country concerned”.
My Government cannot agree to the view stated by Your Excellency that Article I “only confirms a principle of domestic law, justifying the mutual concession made in Article III,” since from that you appear to infer that Article I is not applicable to cases of the naturalization of minor children through their parents. It is believed that the unqualified language of Article I indicates clearly that it was intended to cover all cases of naturalization, whether direct or derivative, and neither the language nor purpose of Article III with reference to military service renders it inapplicable to minors naturalized through their parents’ naturalization.
You next quote the preamble of the Convention and state that the mere reading of its contents would suffice to show that Article I is confined to “the naturalized person himself”. It is difficult to see how the preamble can be considered to have any special significance with reference to this matter. It merely states that in resolving to conclude a Convention, the contracting parties were “led by the wish to regulate the citizenship of those persons who emigrate from the United States of America to Belgium, and from Belgium to the United States of America”. Minor children do not acquire American citizenship through the naturalization of their parents in the United States unless, or until, they emigrate to the United States. Therefore, the language of the preamble is descriptive of the situation of such minor children, as well as of that of their parents.
You cite as an additional reason in support of the view of your Government the fact that at the time the Convention was concluded, under the law in force in Belgian, upon the naturalization of a Belgian abroad, or of a foreigner in Belgium, children previously born did [Page 21] not acquire the new status of their parents. You say that your Government maintains that the Convention did not nullify the principles of Belgian domestic law, and that it is only to that law that reference can be made in determining the causes of the loss of Belgian nationality.
Difficult problems may arise where a treaty appears to conflict with the domestic legislation of one or both of the states which are parties to it, although in such case it would seem that, from the standpoint of international law, the treaty should prevail. However, in the case under discussion no such conflict appears to exist. At the time when the treaty was concluded the law of the United States, as found in an act of Congress of April 14, 1802 (2 Stat. 155), which has been embodied in Section 2172 of the Revised Statutes of the United States, provided for the naturalization of minor children residing in the United States through the naturalization of their parents. By Section 5 of the Act of March 2, 1907 (34 Stat. 1228), it was provided that derivative naturalization would also result in the case of a minor child arriving in the United States for permanent residence after the parents’ naturalization. Whether or not the law of Belgium in effect when the naturalization treaty was concluded contained a provision similar to that last mentioned, there was nothing to prevent its adoption. It does appear that Section 18 (4) of the Belgian Nationality Law of 1922 provides for the derivative naturalization of minor children residing in Belgium at the time of their parents’ naturalization. In principle there seems to be no difference between the naturalization of a minor through the fact of his residing in the naturalizing state at the time of his parents’ naturalization and the naturalization of a minor through the fact of his acquiring a residence in the naturalizing state, while still a minor, after the parents’ naturalization. In both cases the unity of the family is the underlying principle, although in both cases acquisition of nationality is conditioned upon the fact of residence in the naturalizing state.
With reference to this subject it may be observed that the judicial as well as the executive branch of the Government of the United States has held that the provision of Section 2 of the Act of Congress of March 2, 1907 that “any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws” applies to an American citizen who is naturalized in a foreign state, during minority, through the naturalization of a parent, as well as one who is naturalized in a foreign state, after attainment of majority, upon his own application.
Looking to the terms of the Convention itself, this Government is of the opinion that the language of Article I is clear and unequivocal [Page 22] and that it includes citizenship acquired by any commonly accepted form of naturalization which has been or may be established by the laws of the contracting parties. As acquisition of citizenship by minor children through the naturalization of their parents was a commonly accepted form of naturalization at the time of the conclusion of the Convention, it seems clear that if it had been the intent of the negotiators to exclude that form of naturalization, such intent would have been specifically set forth in the text of the Convention.
A further indication that Article I of the Convention of November 16, 1868, was intended to include minor children acquiring citizenship through the naturalization of their parents is found in the fact that the other naturalization treaties concluded between the United States and various European powers contemporaneously with it, have always been construed by the United States to apply to cases involving such persons. It is believed that the correctness of this view has been generally admitted by the other signatories. Naturalization treaties containing provisions essentially similar to those contained in the Convention of November 16, 1868, were negotiated with the following states: North German Union, February 22, 1868;11 Bavaria, May 26, 1868;12 Grand Duchy of Baden, July 19, 1868;13 the Kingdom of Württemberg, July 27, 1868;14 Grand Duchy of Hesse, August 1, 1868;15 Norway and Sweden, May 26, 1869;16 Great Britain, May 13, 1870;17 Austro-Hungarian Empire, September 20, 1870;18 Denmark, July 20, 1872.19
As a matter of fact, one of the most troublesome classes of military service cases causing difficulties with these various states which these treaties were intended to remove, was that composed of the sons of naturalized American citizens, who had acquired citizenship through the naturalization of the parents, but who upon return to the parents’ country of origin for temporary visits had nevertheless been claimed by such country as citizens, liable for military service. That fact was common knowledge at the time the treaties were being negotiated.
For the reasons adduced above, supplemented by those set forth in my note of April 17, 1936, it is the considered opinion of the Government of the United States that acquisition of citizenship by a minor through the naturalization of his parents is a commonly accepted form [Page 23] of naturalization, and comes within the terms of Article I of the Convention of November 16, 1868 between Belgium and the United States. In view of the above explanation, it is hoped that the Belgian Government will be able to agree to the construction placed upon the treaty by this Government.