811.2222 (1940)/31
The Mexican Embassy to the Department of State
Memorandum
[Translation]
The Third Section, paragraph (a), of the Selective Training and Service Act of 1940 expressly imposes the obligation of serving in the United States Army on all those aliens who have declared their intention of becoming naturalized in the United States, a provision which undoubtedly may lend itself to difficulties in the future when some nationals of Mexico, who find themselves under those conditions, seek to obtain, as Mexican citizens, the protection of the Mexican Government.
The Embassy, in compliance with the laws of Mexico, as well as also bearing in mind the principle of international law which governs this question, has seen itself obliged to issue instructions to all Mexican consulates in the sense that in such cases protection should be extended if it is requested by the persons concerned. In doing so, the Embassy has given full consideration to the fact that, according to the United States law itself, the nationality of this country is not acquired until the moment when those who have declared their first intention of becoming naturalized finally consummate such naturalization and, on the other hand, the fact that they have not yet lost their Mexican nationality by the mere act of declaring their intention to obtain their naturalization in the United States. In this respect, the Embassy desires to call attention to the fact that both laws, that of Mexico and that of the United States, are in accord with the principle of international law that obligations derived from a nationality cannot be imposed on an individual without granting him the rights which the same confers.
Taking into account the Second Section of the Law, instructions have also been issued to the consulates in the sense that this class of Mexicans shall comply with the requisite of registration which is to be carried out October 16, 1940 (Presidential Proclamation of September 16, 19403a), but they have also been instructed that in cases in which their intervention is sought they shall try to convince the local boards charged with deciding who shall be the conscripts, that the Mexican nationality of the protected person should prevail and entitle him to be exempted, in his character, which he still retains, of an alien, from rendering military service to this country, the nationality of which he does not yet acquire.
[Page 559]The Embassy, moreover, also took into account that in similar cases, during the last European war, those aliens who, having made their first declaration of intention of becoming naturalized, refused to serve in the United States Army, were excluded definitively from the benefits of said naturalization,4 a legislative attitude which was perfectly legal and consistent with the rights, both of the Government of this country and those of the individuals themselves, according to international law. Apparently, this is not, however, the situation created by the recent 1940 Conscription Law, Section 11a of which seems to include such individuals in the application of the penalties fixed for United States nationals who evade their obligations as citizens of this country.
The Embassy desires to bring the above facts to the knowledge of the Department of State, as it is its intention that it should not be possible that the instructions to which reference was made above, as well as any consular action deriving therefrom, might come to be interpreted in the future by the United States authorities as an obstruction, on the part of the Mexican consular authorities, of the defense plans of this country or of the legislation in question.
- Department of State Bulletin, September 21, 1940, p. 221.↩
- Reference is to the Selective Service Act of May 18, 1917 (40 Stat. 77), as amended by the Act of July 9, 1918 (40 Stat. 885). For information concerning the amendment of the Act because of the protests of foreign governments, see Green H. Hackworth, Digest of International Law, vol. iii, pp. 606–611.↩