The document was transmitted at the proper time to the King’s
Government which has just sent me a new memorandum containing the
observations to which such examination has given rise on the part of
the Belgian Government.
I have the honor to transmit this memoir, together with its
enclosures, to Your Excellency, and to request you to be so good as
to let me know whether the American authorities agree with the
conclusions of that Exposé,—conclusions which, in the field of
practice, do not appear, for that matter, to raise any
difficulty.
[Enclosure—Translation]
Memorandum
The King’s Government previously maintained that Article 1 of the
Convention, concluded on November 16, 1868, between Belgium and
the United States of America for the regulation of the
nationality of emigrants sanctions by the loss of our
nationality, the acquisition of American nationality by direct
naturalization. The Government of the United States declares on
its part that whatever may be the provisions of domestic law in
the matter, we have, by virtue of the Convention, the obligation
to sanction by the loss of our nationality, every form of
American naturalization, either direct or indirect. In the
latter term there is included, in particular, the case of the
minor, who, because of the naturalization conferred on his
father, himself acquires American nationality as the result of
his settling in the United States.
The American Government from the first rejects the conclusion
that we have felt justified in drawing from the principal
purpose of the Convention. According to it, the essential
obligation of the Convention consists in the “unlimited and
reciprocal” engagement undertaken by the two governments to
recognize as citizens of the other power those who shall have
been naturalized there. (Article 1)
As to Article 3, (relating to the actions which may be brought
against the citizens of one of the two countries, naturalized in
the other country, on account of violations of their military
obligations toward their country of origin) instead of
determining the essential object of the Convention, it would
only restrict the scope of Article 1, by authorizing the country
of origin to bring actions in the case of desertion from an
organized military or naval corps.
It may be that the American Government has attributed such a
scope to the Convention, but it was not so understood in
Belgium.
The preparatory work of the law approving the Convention (see
annexes23)
clearly establishes that the legislator of 1869 saw no other
merit in the Convention and did not attribute any purpose to it
other than that of regulating the question of military
obligations of Belgians emigrating to the United States. The
exposition of reasons for the law states in particular: “The
international act in question only ratifies the principles which
are included in our codes: it modifies only the provisions of
the legislation regarding the military service as to what they
might contain that is too rigorous.”
This statement singularly weakens the conclusion drawn, from the
general terms of the Convention, by the American Government. The
latter “is of the opinion that the terms of Article 1 are clear
and unequivocable”
[Page 236]
and
that they contemplate the nationality acquired by any acceptable
manner of naturalization “which has been or may be fixed by the
legislation of the contracting parties”.
Such was not the thought of the Belgian legislator. He refers
expressly to the domestic legislation in force and by no means
intends to deviate therefrom. This intention was clearly
manifested and we cannot admit that, from the vague terms of a
treaty, presented by the Government of the United States, and
accepted without observation by Belgium, it could be deduced
that the Belgian Government and the Belgian legislator meant to
make the loss of Belgian nationality depend upon subsequent and
unforeseen amendments of American legislation.
Moreover, the Belgian Government cannot admit as pertinent, the
conclusion drawn from the adoption of the American point of view
by the various European powers, which have concluded treaties
with the United States similar to that of 1868.
The interpretation maintained by Belgium does not mean that, for
the application of the Convention, the principles of the civil
code in force at the time of its conclusion shall be adhered to
but that, for the decision in cases of loss of Belgian
nationality, it will be necessary to refer to the national
legislation whether existing or future.
On this basis, the King’s Government by no means denies that a
minor child of a Belgian, who is a naturalized American, loses
his nationality as a Belgian, if he acquires American
nationality, at the same time as his parents. This case is
expressly regulated by Article 18.4 of the coordinated laws on
Belgian nationality.
It limits itself to excluding from the field of application of
the Convention the case of a minor child who, as his parent was
naturalized in the United States, himself acquires American
citizenship at the expiration of a period of five years
following his own settlement in the United States. This
particular concept was introduced into American legislation by
Article 5 of the Law of March 2, 1907,24 a provision which
was itself amended by Article 2 of May 24, 1934. It could not,
therefore, have been contemplated by the negotiators of the
Treaty of 1868, either on the part of America or Belgium.
The American Government makes no essential distinction between
the immediate acquisition of American nationality by a minor
child of a naturalized person and the postponed acquisition of
such nationality resulting from settlement in the United States,
the fundamental principle being the family unit.
It should be noted that, even under the American system, such
family unit will run a great risk of not being realized, that
moreover,
[Page 237]
the
principle of the unit of nationality in the family was not the
basis either of the legislation of the Civil Code nor to any
extent whatever of present Belgian legislation, that the
postponed acquisition of foreign nationality does not correspond
to any of the groups of Belgian legislation; it would in
particular be impossible to determine the essential point of
ascertaining whether such acquisition is derived from a
voluntary act of nationality or constitutes an ipso facto acquisition.
The King’s Government believes that the difference of
interpretation arising from the Convention presents only a
limited practical interest.
It cannot be attempted, by means of this Convention, to eliminate
all conflict between Belgian and American laws with regard to
nationality. Therefore, according to the first note of the
American Government, the Supreme Court of the United States
declared: “Any person born in the United States and subject to
the jurisdiction of this country, becomes by virtue of this fact
a citizen of the United States and does not need any
naturalization”. The American Government must, however, admit
that such person if he is born of a Belgian father will retain
the nationality of his parent. And if the latter has himself
naturalized—which can have no effect on the status of the person
born in the United States—the child will continue nevertheless
to have Belgian citizenship. This case, however, is not
regulated by the Convention, however broad may be the
interpretation given to it.
The only point upon which the King’s Government cannot agree with
American authorities concerns the case of a person who acquires
American nationality as a result of the naturalization granted
to his parent but after his own establishment in the United
States.
It should be observed that the interested parties remain free to
sign a declaration renouncing Belgian nationality, a declaration
which may even be signed before the diplomatic or consular agent
of their residents (Article 18, 1, 2, a1
and 22 of the coordinated laws on Belgian nationality).
The King’s Government is moreover entirely willing to grant the
authorization provided for in Article 18, 1, 3, a1, of these laws without objection, to
those who find themselves under the obligation of requesting
it.
Such appears to be the conclusion to be derived from our exchange
of views with the American Government.25
