811.2222 (1940)/1170

The Swiss Minister (Bruggmann) to the Secretary of State

Ad N.2.5.

Sir: On November 25th, 1850, the United States and Switzerland concluded a Treaty of Friendship and Commerce which ever since has governed the establishment and the treatment of citizens of the two countries living in the other. In Article II of this Treaty, the contracting parties agreed that “the citizens of one of the two countries, residing or established in the other, shall be free from personal military service.”

Animated by the desire of regulating the military obligation of certain individuals possessing both the American and the Swiss nationality, the two Governments complemented the aforementioned Treaty with the signing on November 11th, 1937, of a Convention, concerning the military obligations of certain persons having dual nationality. According to this Convention, a person born in the territory of one of the two Parties, of parents of the other, who possesses the nationality of the two countries and has his habitual residence in the State of his birth, shall not be held liable by the other State for military service in case of a temporary stay in the territory of the latter.

By signing the Treaty of 1850, and the Convention of 1937, the Governments of the United States and of Switzerland have recognized the existence in their respective territories of colonies of nationals of the other Party, and they have allowed them to maintain all lawful ties with the homeland. These nationals who have retained their original citizenship, and who by not applying for naturalization have clearly demonstrated their intention of remaining citizens of their Mother country, should, therefore, not only by generally recognized International Law, but also by Treaty, be exempt from any personal military service in the armed forces of the country of their residence.

Switzerland’s policy has always been in complete agreement with said principle and the treaties. Although since 1850, the Swiss Government has been forced on several occasions by international circumstances to call up for total military mobilization the full man-power of the country, representing one eighth of the entire population, no American citizen had ever been enrolled for military service during [Page 494]these emergencies. This was in strict observance of the military exemption clause of the Treaty of 1850, and in recognition of the rights and duties of neutral persons under International Law.

With the Act of December 20th, 1941, to amend the Selective Training and Service Act of 1940, by providing for an extension of liability for military service, the Selective Service has been empowered to enforce liability for military service upon any alien of a certain age who is a resident of the United States, irrespectively of the fact whether or not he has declared his intention to become an American citizen. The new Act provides that every male person residing in the United States between the ages of 20 and 45 shall be liable for training and service in the land and naval forces of the United States.

The enactment of this new law is evidently a departure of the United States from the general rule to conscribe for military service only “citizens of the respective country” and does not seem to be in harmony with the international usage, according to which no neutral shall be compelled to serve in the armed forces of a belligerent country. The Swiss Government esteems, therefore, that the application of the Selective Service and Training Act as amended to Swiss citizens is not reconcilable with the Treaty of 1850.

It is true that the new Selective Service Law provides for the possibility that a neutral alien may be released from all military obligations if prior to his induction in the armed forces of the United States, he has made application to be relieved from such liability, with the consequence, however, that any person who makes such an application shall thereafter be debarred from becoming a citizen of the United States. This provision, offering a possibility of exemption to a Swiss resident, may in many cases result in a practical solution, hut on account of the accompanying consequences, it cannot bring the Act in harmony with the Treaty of 1850, which mentions no conditions whatsoever for the exemption from military service. Under the new Act, Swiss citizens would be allowed to enjoy the privileges established by the Treaty solely if they fulfill a material condition not mentioned and not understood in the Treaty.

The text of the Treaty of 1850 furthermore makes no discrimination between persons residing temporarily in the territory of the other party and those who are established permanently there. By inserting the military clause, the two contracting parties had the intention to exempt all their nationals from service in the armed forces of the other party. Under the terms of the Selective Training and Service Act of 1940, as amended, however, only those Swiss citizens who have been declared as “non-resident” in the United States have an opportunity to be unconditionally relieved from military service, while all those considered as residing permanently in the United States could not be exempt without at the same time being debarred [Page 495]from becoming an American citizen. This procedure would indeed place Swiss nationals in a less favorable position than even enemy aliens in the United States, who, if considered by the military authorities as not acceptable for military service or upon their own request, can be exempt from military duties without any further consequences.

I further beg to bring to your attention the situation of a number of Swiss, citizens who were inducted into the American Army before the regulations providing for an exemption from service have been in force. Inasmuch as the new Act provides a possibility for exemption only if application is made prior to induction, these Swiss citizens do not have an opportunity to be relieved from military service. They are put in an extremely precarious situation as the Swiss military penal code of June 13th, 1927, prohibits under severe penalties any Swiss citizen to enter the armed forces of a foreign country.

In the light of the foregoing, conscription of Swiss citizens in the United States who have not declared their intention of becoming American citizens, contradicts the text and the spirit of the Treaty of 1850, as well as the principles governing the rights and duties of neutrals under international law.

I have been, therefore, instructed by my Government to approach your Excellency and to request from you to intervene with the appropriate authorities, in order that at least the Swiss citizens who have not declared their intention to become American citizens may be unconditionally exempted from the liability for military service.

Accept [etc.]

C. Bruggmann