International Relations

4

International Relations

The policy of expatriation was influenced and sometimes dictated by the international relations between the United States and both its allies and its enemies. This chapter follows those considerations by looking at the treaties the United States signed regarding expatriation. From the American Civil War until the Second World War, the United States signed numerous bilateral treaties to ensure the mutual recognition of naturalization. During the First World War, the Allied states that permitted military service in another country without its being considered as transferring allegiance made agreements with one another. In the interwar years, the issue of naturalization resurfaced specifically in relation to the obligation of military service. Therefore, the United States exchanged letters with twenty other countries to make sure American citizens who were also citizens of those countries would not be drafted to their armies during temporary visits. In 1930, the League of Nations hosted a conference that specifically dealt with the then-anomalous condition of dual citizenship. During the Second World War, the United States signed agreements that were similar to those in the First World War and facilitated military service in another country’s military without those serving being considered deserters. In all of those interactions between the United States and other counties, there was a constant understanding that dual citizenship should be avoided (except in particular circumstances). Forced expatriation was considered a legitimate state practice to combat multiple national allegiances. After the Second World War, countries around the world began to realize that dual citizenship was not as great a threat as statelessness, and the United Nations organized a conference on this matter. However, even in this convention, forced expatriation was still considered legitimate, as long as it did not cause a person to become stateless. I have found that while some of the expatriation policies were constructed in response to the ideology of exclusive national allegiance, others were practically overturned as responses to states’ immediate needs in the international arena (mainly in respect to military efforts).

From 1868 to 1937, the same period when most expatriation laws were legislated, the United States entered into twenty-five treaties in regard to nationality transformation. These treaties are known as the Bancroft treaties (Table 5.1),1 named after the historian and diplomat George Bancroft (1800–1891) who negotiated the first of these agreements with Prussia (officially called the North German Confederation).2 The goal of these treaties was to regulate the citizenship of those persons who emigrate from one country to another. Dual citizenship was construed as an undesirable outcome, and the treaties were intended to make sure that nationality was acquired in one country at the expense of the other.3 For Bancroft, double allegiance was to be rejected in the same manner as polygamy.4

Most of the Bancroft treaties were formulated in a similar manner. Three of the sections have substantive consequences for the idea of citizenship. The first provision recognized the right of each country’s nationals to become naturalized in one of the others. This voluntary expatriation would be officially acknowledged by the home country not after the declaration of intent or the immediate naturalization of the citizen, but after a predetermined period of residence in the host country—usually five years. The second provision maintained that this voluntary expatriation would not remove liability for the trial or punishment of crimes committed in the original country before immigration.

The provision that is most relevant to forced expatriation is related to dual nationality. The two signatories agreed that their nationals who immigrated and became naturalized in the other country and then returned to their original country with the intent not to return where they has been naturalized would be held to have renounced their second citizenship. In other words, naturalized citizens were to lose their citizenship upon return to their former country if they did not intend to remain Americans. Intent was established by showing that the person naturalized in the United States resided for more than two years in his or her former country.

The Bancroft treaties represent the effort of the United States to secure the recognition of voluntary transfer of citizenship; they did not have any problem with the practice of forced expatriation for naturalized citizens who returned to their former country. In 1964 the Supreme Court in Schneider v. Rusk invalidated the provision that stripped the citizenship of any naturalized American after three years’ continuous residence in his country of origin. Writing for the majority, Justice Douglas stated that “Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance.”5 However, the Bancroft treaties, which were still in force, contradicted this point of view and should have been abrogated.6 In 1980, during the administration of President Jimmy Carter, the Bancroft treaties were terminated (with the exception of the treaties with Albania, Bulgaria, and Czechoslovakia).

One of the main reasons that the United States negotiated the Bancroft treaties was connected to the originating ideals and practical concerns of an independent United States citizenship. As mentioned in Chapter 2, the independence of the United States formalized a novel approach regarding the relationship between citizenship and bloodline. Namely, in addition to biological circumstances (birth, marriage, adoption), a person could become an American citizen by naturalization. This new idea was not generally held in other countries in the world where citizenship was treated as being perpetual and could not be easily terminated. Thus, the Bancroft treaties were diplomatic measures aimed at ensuring that foreign citizens could be released from their former citizenship in order to become Americans. On a larger scale, this aim is connected to the problem of dual citizenship. By permitting naturalization (and its termination once the immigrant returns to his or her home country), the countries agree that citizenship can be transferred. However, the Bancroft treaties also maintained that citizenship must be exclusive.

Table 4.1. Bancroft Treaties