Bancroft Treaties

The Bancroft treaties, also called the Bancroft conventions, were a series of agreements made in the late 19th and early 20th centuries between the United States and other countries.[1] They recognized the right of each party's nationals to become naturalized citizens of the other; and defined circumstances in which naturalized persons were legally presumed to have abandoned their new citizenship and resumed their old one.[2][3][4]

George Bancroft before his appointment as U.S. Minister to Prussia.

Origin

Named for historian and diplomat George Bancroft (1800–1891), who negotiated the first of these agreements with Prussia,[5] the Bancroft treaties were mainly intended to prevent individuals from using naturalization as a way to avoid military service and other legal obligations in their native countries.[6][7]

From 1868 to 1937, the United States entered into 25 Bancroft treaties covering 34 foreign countries.[8][9] A typical Bancroft treaty had three major provisions. The first specified the terms under which each party would recognize the naturalization of its citizens by the other. (Five years' uninterrupted residence in the adopted country was the usual requirement.) The second provided that naturalized citizens who returned to their native country could be prosecuted for crimes that they allegedly committed before they emigrated. The third and most important provided that naturalized citizens who returned to their country of origin and stayed there for two continuous years would be presumed to have resumed their former nationality. That would require them to meet any unfulfilled military service obligation in their native country and deny them the diplomatic protection of their adopted one. Article III of the 1908 treaty with Portugal was typical:

If a Portuguese subject naturalized in America, renews his residence in Portugal, without intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally, if an American naturalized in Portugal renews his residence in the United States, without intent to return to Portugal, he shall be held to have renounced his naturalization in Portugal. The intent not to return may be held to exist when the person naturalized in one country resides more than two years in the other country.[10][11]

Constitutional infirmity
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Conceived in an era when the right of individuals to change their citizenship was not universally recognized, the Bancroft treaties represented an important step forward in securing recognition by foreign governments of the right of their nationals to become American citizens.[12] But American constitutional law eventually made the treaties obsolete.

In Schneider v. Rusk, 377 U.S. 163 (1964), the Supreme Court invalidated a section of the Immigration and Nationality Act of 1952 (the McCarran-Walter Act) that would strip naturalized Americans of their citizenship after three years' continuous residence in their country of origin; and in Afroyim v. Rusk, 387 U.S. 253 (1967), the Supreme Court, reviewing part of the Nationality Act of 1940, held that Congress has no power to strip anyone of their citizenship, whether it is acquired by birth or by naturalization. These decisions strongly suggested that any future case of involuntary loss of citizenship under one of the Bancroft treaties probably would not survive a Supreme Court challenge.[13]

Termination of the Bancroft treaties

Concluding that the Bancroft treaties were unenforceable, the administration of President Jimmy Carter, acting in consultation with the Senate Committee on Foreign Relations, gave notice in 1980 terminating the treaties[14] with 18 of the 21 countries[15] with which they were still in force. The exceptions were the treaties with Albania, Bulgaria and Czechoslovakia. The treaty with Albania was terminated in 1991 when Albania and the United States re-established diplomatic relations at the end of the Cold War.[16] The treaty with the Czech Republic and the Slovak Republic as successor states to the former Czechoslovakia was terminated by the United States in 1997. [17] In the last years of Barack Obama's Presidency the treaty with Bulgaria was terminated. [18]

Termination by country



Termination by countries[19] [17] [18]
Country Date signed Year Terminated Termination
 North German Confederation (Prussia) February 22, 1868 1917 Never revived after First World War
 Bavaria May 26, 1868 1871 Proclamation of the German Empire
 Mexico July 4, 1868 Terminated by Mexico
 Baden July 19, 1868 1871 Proclamation of the German Empire
 Württemberg July 27,1868 1871 Proclamation of the German Empire
 Hesse August 1, 1868 1871 Proclamation of the German Empire
 Belgium November 16, 1868 1980 Terminated by President Jimmy Carter
 Union between Sweden and Norway May 26, 1869 1980 Terminated by President Jimmy Carter
 Austro-Hungarian Empire September 20, 1870 1917 Never revived after First World War
 United Kingdom February 23, 1871 1953 Terminated by the United Kingdom, December 15, 1953
 Denmark July 20, 1872 1980 Terminated by President Jimmy Carter
 Haiti March 22, 1902 1980 Terminated by President Jimmy Carter
Pan-American Conference[lower-alpha 1] August 13, 1906 Several countries left the treaty
 El Salvador March 14, 1908 1980 Terminated by President Jimmy Carter
 Brazil April 27, 1908 1951[21] Terminated by Brazil
 Uruguay August 10, 1908 1980 Terminated by President Jimmy Carter
 Portugal May 7, 1908 1980 Terminated by President Jimmy Carter
 Honduras June 23, 1908 1980 Terminated by President Jimmy Carter
 Peru October 15, 1907 1980 Terminated by President Jimmy Carter
 Nicaragua December 7, 1908 1980 Terminated by President Jimmy Carter
 Costa Rica June 10, 1911 1980 Terminated by President Jimmy Carter
 Bulgaria November 23, 1923 2017 Terminated by President Barack Obama
 Czechoslovakia July 16, 1928 1997 Terminated between Czech Republic and the Slovak Republic
 Albania April 5, 1932 1991 Terminated when Albania and the United States re-established diplomatic relations in 1991
 Lithuania October 18, 1937 1980 Terminated by President Jimmy Carter

See also

Notes
  1. The treaty was between the US and Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, and Uruguay.[20]

Notes and references
  1. See Oppenheim, Lassa (1905), International Law, A Treatise, vol. I (Peace), London, New York, Bombay: Longmans, Green, Co., p. 368
  2. See Moore, John Bassett (1906), A Digest of International Law, vol. III, Washington, DC: Government Printing Office, p. 358
  3. See Munde, Charles (1868), The Bancroft Naturalization Treaties with the German States; The United States Constitution and the Rights and Privileges of Citizens of Foreign Birth; Being a Collection of Documents and Opinions Relating to the Subject, to the Encroachment of the North-German Treaty on Our Civil Rights, and the Measures to Rebut it; An Appeal to the German-American Citizens, to the Government, Congress, Court of Claims, and the People of the United States of America, Würzburg: A. Stuber
  4. For the text of the first Bancroft treaties see Treaties and Other International Agreements of the United States 1776-1949 (compiled under the direction of Charles. I. Bevans), vol. VIII (Germany-Iran), Washington, DC: The Department of State, Government Printing Office, 1971
  5. See "Convention between the United States of America and the King of Prussia, Relative to Naturalization, Concluded at Berlin, February 22, 1868, Ratifications Exchanged May 8, 1868, Proclaimed by the President of the United States, May 27, 1868", Treaties and Convention between the United States and Other Powers, Since July 4, 1776, Revised Edition, Washington, DC: Government Printing Office, 1873, p. 638
  6. See Yeaman, George H. (1867), Allegiance and Citizenship, An Inquiry into the Claim of European Governments to Exact Military Service of the Naturalized Citizens of the United States, Copenhagen: Printed Fritz Moller
  7. See Roberto Cordova, Special Rapporteur, "Nationality Including Statelessness: Report on Multiple Nationality," United Nations, Yearbook of the International Law Commission, Volume II, p. 44, New York, 1954 (A/CN.4/83). See also Manfred Jonas, The United States and Germany: A Diplomatic History, Cornell University Press, 1985, pp. 25-26. ISBN 0-8014-9890-2
  8. There were bilateral treaties with Albania, Austria-Hungary, Baden, Bavaria, Belgium, Bulgaria, Brazil, Costa Rica, Czechoslovakia, Denmark, El Salvador, Haiti, Hesse, Honduras, Lithuania, Mexico, Nicaragua, Peru, Prussia, Portugal, the United Kingdom, Uruguay and Wurttemberg. For the text of the treaty with Great Britain see "Convention between the United States of America and Great Britain, Relative to Naturalization, Concluded May 13, 1870, Ratifications Exchanged August 10, 1870, Proclaimed by the President of the United States, September 16, 1870", Treaties and Convention between the United States and Other Powers, Since July 4, 1776, Revised Edition, Washington, DC: Government Printing Office, 1873, p. 405. Norway and Sweden were included in a single treaty signed in 1869 when the two countries were joined in a personal union under the Swedish monarchy. The Interamerican Convention of 1906 covered Argentina, Bolivia, Brazil, Cuba, Colombia, Costa Rica, the Dominican Republic, Guatemala, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Paraguay, Peru, Panama and Uruguay. For the text of the 1906 Inter-American Convention see "Status of Naturalized Persons who Return to Country Of Origin (Inter-American), Convention signed at Rio de Janeiro, August 13, 1906", Treaties and Other International Agreements of the United States 1776-1949 (compiled under the direction of Charles. I. Bevans), vol. 1 (Multilateral) 1776-1917, Washington, DC: The Department of State, Government Printing Office, 1968, p. 544. The treaties with each of the German states except Prussia became obsolete when the German Empire was proclaimed in 1871. The treaties with Prussia and Austria-Hungary lapsed with the American declaration of war in 1917 and were never revived. Brazil, Mexico and the United Kingdom terminated their treaties; and Bolivia, Brazil, Cuba, the Dominican Republic, Guatemala, Mexico, Paraguay, Peru and Uruguay withdrew from the 1906 convention.
  9. For the 1937 Treaty with Lithuania see "Liability for Military Service of Naturalized Persons and Persons born with Double Nationality", Treaties and Other International Agreements of the United States 1776-1949 (compiled under the direction of Charles. I. Bevans), vol. IX (Iraq-Muscat), Washington, DC: The Department of State, Government Printing Office, 1972, p. 690
  10. 35 U.S. Statutes at Large 2082, 2083
  11. See also Treaties and Other International Agreements of the United States 1776-1949 (compiled under the direction of Charles. I. Bevans), vol. XI (Philippines-United Arab Republic), Washington, DC: The Department of State, Government Printing Office, 1974, p. 322
  12. For a description of the legal doctrine of "perpetual allegiance" of subjects to their sovereign and the role of the Bancroft treaties in hastening its decline, see David A. Martin, Dual Nationality: TR’s "Self-Evident Absurdity"', Chair Lecture, October 27, 2004, University of Virginia School of Law. Archived December 17, 2011, at the Wayback Machine
  13. "Naturalization Treaties". 7 FAM 1270, Appendix A (d). United States Department of State. Retrieved December 16, 2015. "In the matter of Reid v. Covert, ... the U.S. Supreme Court established that provisions of treaties or executive agreements are unenforceable if they conflict with the Constitution.... [Schneider v. Rusk and Afroyim v. Rusk] strongly implied that if a case of involuntary loss of citizenship under one of the Bancroft treaties came before the Supreme Court, the expatriation provisions would be found unconstitutional."
  14. For termination of the naturalization treaties with Costa Rica, El Salvador, Haiti, Honduras, Lithuania, Nicaragua, Norway, Peru, Portugal, Uruguay see Department of State Bulletin, v. 80, no. 2045, December 1980, pp. 79-80; And for termination of the naturalization treaties with Denmark and Sweden see Department of State Bulletin v. 81, no. 2046, January 1981, pp. 39-40 .
  15. Argentina, Belgium, Chile, Colombia, Costa Rica, Denmark, Ecuador, El Salvador, Haiti, Honduras, Lithuania, Nicaragua, Norway, Panama, Peru, Portugal, Sweden and Uruguay. Delivery of the termination notice to the Lithuanian consulate in Washington, DC, gave the United States an opportunity to emphasize that it did not recognize the incorporation of Lithuania into the Soviet Union.
  16. FindArticles - Treaty actions: March-April 1991, US Department of State Dispatch, April 8, 1991.
  17. U.S. Department of State: Treaties in Force as of January 1, 1997, p. 66 at col. 2. Archived October 11, 2008, at the Wayback Machine. For the text of the treaty See Treaties and Other International Agreements of the United States 1776-1949 (compiled under the direction of Charles. I. Bevans), vol. VI (Canada-Czechoslovakia), Washington, DC: The Department of State, Government Printing Office, 1971, p. 1266
  18. See U.S. Department of State: Treaties in Force as of January 1, 2016, p. 50-52 and U.S. Department of State: Treaties in Force as of January 1, 2013, p. 34 at col. 3. See also Treaties in Force 2014/2015 - Supplement via US Department of State. Pursuant to Article 8 of the 1947 Treaty of Peace with Bulgaria, the United States notified Bulgaria in 1948 of its intent to maintain the Bancroft (naturalization) treaty in force. See Treaties and Other International Agreements of the United States 1776-1949 (compiled under the direction of Charles. I. Bevans), vol. V (Afghanistan-Burma), Washington, DC: The Department of State, Government Printing Office, 1970, p. 1083. For the full text in American English and in Bulgarian of the Bancroft Naturalization treaty with Bulgaria see Naturalization Treaty between the United States and Bulgaria, signed November 23, 1923 via Foreign Relations of the United States at University of Wisconsin Digital Collections or via Internet Archive.
  19. "International Relations : Table 4.1. Bancroft Treaties". Law Explorer. September 5, 2021. Retrieved September 5, 2021.
  20. "Papers Relating to the Foreign Relations of the United States, with the Address of the President to Congress December 2, 1913 - Office of the Historian".
  21. Decree no. 29200 of 24 January 1951, Government of Brazil (in Portuguese).
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