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Facilitation of Naturalization Through Military Service
Published online by Cambridge University Press: 12 April 2017
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- Copyright © American Society of International Law 1942
References
1 Oppenheim, International Law (6th ed., 1940), II, 207; Hyde, , International Law (1921), II, 651. Cf., however, E. M. Borchard in this Journal, Vol. 32 (1938), at p. 537.Google Scholar
2 Droit des gens, Bk. III , Ch. II, Sec. 14.
3 Moore, J. B., Digest, IV, 52.Google Scholar
3a Ricardo Levene, A History of Argentina (Robertson, W. S., trans., 1937), Ch. XLIXGoogle Scholar; Cady, J. F., Foreign Intervention in the Rio de la Plata, 1838–50 (1929), Chs. II, VII.Google Scholar
4 Ibid., p. 57 (Italics inserted.) Cf. Hall (5th ed., 1904) at p. 209, and Bluntschli, Ledroit international codifié, Sec. 391.
5 Moore, J. B., Digest, IV, p. 57.id.Google Scholar
6 Ibid., p. 57.
7 Ibid., p. 55.
8 For. Rel, 1880 p. 776–7.
9 As held, for example, by Despagnet, Frantz, Cours de droit international public (1899), Sec. 354.Google Scholar
10 For. Rel., 1907, Pt. 2, p. 1179. See also Davis, G. B., “The Second, Third and Fourth Voeux of the Conference,” this Journal, Vol. 2 (1908), pp. 811–814.Google Scholar
11 In a dispatch of July 19, 1894, Mr. Bayard reported to Mr. Gresham, Secretary of State,the opinion which had been rendered by the law officers of the Crown in England, that while no exemption existed by general rule, treaties had largely established it. For. Rel., 1894, p. 253. See also K. Matsudaira, Le droit conveniionnd international du Japon (1931), pp. 85–86.
By the provisions of some bilateral treaties, consular officers, and not nationals in general,receive the exemption.
12 Kingsbury, H. T., in Proc. Amer. Soc. Int. Law, 1911, p. 221 Google Scholar. Mr. Kingsbury also made the point that, in contrast to continental Europe, the United States had resorted to compulsory military service only abnormally and occasionally, and that it might therefore be required more justifiably of resident aliens, particularly declarants. He found no foundation in international law for requiring “discrimination” in favor of aliens.
12a Cf. the view of the Acting Secretary of State (Polk) to the Attorney General (Gregory), Aug. 9, 1918. G. H. Hackworth, Digest, III, 599.
13 The Spanish-American Treaty of 1903 provided, in Art. 5: “The citizens and subjects of each of the high contracting parties shall be exempt in the territories of the other from all compulsory military service, by land or sea. . . .” 33 Stat. 2108.
14 249 Fed. 981 (1917). Ex parte Blazekovic, 248 Fed. 327 (1918), is in accord.
15 Diplomatic Protection of Citizens Abroad (1915), p. 66. See an invocation by Mr. Davis, , Assistant Secretary of State, in 1873, of comity and reciprocity as a basis for exemption. Moore, J. B., Digest, IV, p. 58.Google Scholar
16 46 Stat. (Pt. 2) 2753, 2756.
17 Act of March 3, 1863, 12 Stat. 731.
18 Moore, J. B., Digest, IV, 55 Google Scholar. See, on more recent practice, Hackworth, G. H., Digest, III, 600–611.Google Scholar
19 Second Report of the Provost Marshal General, Dec. 20, 1918, referred to by Hackworth, Green H., in Proc. Amer. Soc. Int. Law, 1925, pp. 59, 68.Google Scholar
20 54 Stat. 885; 55 ibid. 627. After the United States became a belligerent, this part of the law was amended to read as follows: “Except as otherwise provided in this Act, every male citizen of the United States, and every other male person residing in the United States, who is between the ages of twenty and forty-five at the time fixed for his registration, or who attains the age of twenty after having been required to register pursuant to Section 2 of this Act, shall be liable for training and service in the land or naval forces of the United States: Provided, That any citizen or subject of a neutral country shall be relieved from liability for training and service under this Act if, prior to his induction into the land or naval forces, he has made application to be relieved from such liability in the manner prescribed by and in accordance with rules and regulations prescribed by the President, but any person who makes such application shall thereafter be debarred from becoming a citizen of the United States: Provided further, That no citizen or subject of any country who has been or who may hereafter be proclaimed by the President to be an alien enemy of the United States shall be inducted for training and service under this Act unless he is acceptable to the land or naval forces.” Public Law 360, 77th Cong., approved Dec. 20, 1941.
21 39 Ops. Atty. Gen. 504. Cf. the announcement from National Headquarters of the Selective Service System that “Alien students and others who are in this country in a nonresident status and who have not declared their intention to become citizens are not required to register, provided their non-resident status is duly determined by the local Selective Service boards. However, selective service regulations require aliens who consider themselves to be in this country in a non-resident status to arrange for a determination of their status by the Selective Service local board in the community where they are temporarily residing.” Selective Service, Vol. II, No. 4 (April, 1942), p. 3.
22 DSS Form 301 (Application by Alien for Relief from Military Service).
23 This regulation apparently dates from May 2, 1942.
24 U. S. Department of State Bulletin, Vol. VI, No. 146 (April 11,1942), pp. 315–318. The American note of March 30, referring to the practice in the war of 1914–1918, said: “It will be recalled that during the World War this Government signed conventions with certain associated powers on this subject. The United States Government believes, however, that under existing circumstances the same ends may now be accomplished through administrative action, thus obviating the delays incident to the signing and ratification of conventions.” The note also referred to the desirability of the plan “from the standpoint of morale of the individuals concerned and the over-all military effort of the countries at war with the Axis Powers.”
The Canadian note of April 6 included the following statements: “The policy of the Canadian Government and Canadian legislation have been based on the assumption that measures applying compulsory military service to aliens should be founded upon agreement with the interested Governments. The Canadian Government is of the opinion that difficulties might arise if there were general recognition of a right to conscript aliens, implying corresponding rights in other countries to conscript Canadian nationals. The Canadian Government, however, does not wish to raise a legal objection at the present time . . . the Canadian Government is prepared to coöperate with the Government of the United States by participating in the rùgime set forth above, full reciprocity on all points being assured by the United States Government.”
25 Selective Service, Vol. II, No. 5 (May, 1942), p. 3
26 Texts in 40 Stat. (Pt. 2), pp. 1620, 1624, 1629, 1633, 1637. For a somewhat different plan relating to service by nationals of one party in the territory of another, see the Franco-Spanish Consular Convention of Jan. 7, 1861, Art. V. Britsh and Foreign State Papers, Vol. 52, pp. 139, 141.
27 The law of 1940, for example, contemplated an aggregate of three years of service by the petitioner. U.S.C.A., Tit. 8, Sec. 724, 54 Stat. 1149.
28 Second War Powers Act, 1942, Public Law 507, 77th Cong., Title X.
29 These individuals may be the two citizens who make affidavit as to the alien’s good character and attachment to the principles of the Constitution.
30 Petition must be filed not later than one year after the termination of effectiveness of the Second War Powers Act, 1942.
31 War Department Circular No. 120, April 24, 1942.
32 An Act of May 9, 1919, had permitted the filing of petition by an alien in the military service of the United States and outside the jurisdiction of any court authorized to naturalize aliens. 40 Stat. 542, 543.