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1951 Universal Military Training and Service Act 56 was sents, be made to serve in its Army or Navy, and cannot,
to apply the draft even-handedly to United States citizens like a citizen, be treated according to discretion." 63
and aliens admitted for permanent residence, with no pro- Doubt exists as to whether this statement represents cur-
visions for relief. Nonresident aliens were also subject to rently existing law. However, in 1967, Rousseau, a noted
the draft, but only if they had remained in the United French publicist, commented upon certainAustralian leg-
States for a period exceeding one year. The provisions for islation which subjected immigrant aliens to compulsory
application for relief (and debarring from citizenship) military service and thus to duty in South Vietnam. In
were retained as to those nonresident aliens. 57 Thus, referring to Greek and Italian protests of this legislation,
nonresident aliens might remain in the United States for Rousseau states: "The most surprising aspect of the situa-
up to one year without being subject to the draft; while tion is that only two governments seem to have protested
selected groups of nonresident aliens might remain for an act which constitutes a clear violation of the traditional
longer periods under exemptions provided by law and status of aliens." 64 Thus, as in the case of taxation, no
regulations. 58 specific international norms dictate the degree to which
b. By amendments in 197 1, which changed the title of aliens may be required to serve in the military forces of
the draft statute to "Military Selective Service Act," a states other than their own. The United States is a party to
wider exclusion of aliens from the draft was provided. The a Protocol Relating to Military Obligations in Certain
draft now applies to every male citizen and "every other Cases of Double Nationality which was concluded at the
male person residing in the United States" but not to any Hague April 12, 1930 and entered into force for the
alien lawfully admitted as a "nonimmigrant" as defined in United States May 25, 1937.65 Only 25 states were par-
a long list of categories in the Immigration and Nationality ties to this international agreement as of January 1, 1977.
Act. 59 In addition, induction of an alien who is draftable Article 1 provides: "A person possessing two or more na-
is not to take place until "such alien shall have resided in tionalities who habitually resides in one of the countries
the United States for one year." Thus,the statute applies whose nationality he possesses, and who is in fact most
to aliens admitted for permanent residence, who can be closely connected with that country, shall be exempt from
drafted only after a year's residence. There is no all military obligations in the other country or countries.
authorization for drafting any other class of aliens and no This exemption may involve the loss of the nationality of
provision for application for relief or debarring from the other country or countries." 66
citizenship. 60 Notwithstanding these changes in the draft 6-11. Multilateral Agreements on Nationality. a. Status
statute, the Immigration and Nationality Act continues to of Naturalized Citizens Who Again Take Up Their Resi-
provide: "[Alny alien who applies or has applied for ex- dence in the Country of Their Origin. 67 Parties to this
emption or discharge from training or service in the convention are Argentina, Chile, Colombia, Costa Rica,
Armed Forces * * * on the ground that he is an alien, and Ecuador, El Salvador, Honduras, Nicaragua, Panama,
is or was relieved or discharged from such training * * * and the United States. The convention provides as
on such ground, shall be permanently ineligible to follows:
become a citizen of the United States." 61 There is some Art. I. If a citizen, a native of any of the countries signing the present
question as to whether this provision is still viable. In convention, and naturalized in another, shall again take up his residence
McGrath v. Kristensen, 62 in which the court was in- in his native country without the intention of returning to the country in
which he has been naturalized he will be considered as having
terpreting the provisions of the Selective Training and Ser-
reassumed his original citizenship, and as having renounced the citizen-
vice Act of 1940 debarring aliens from citizenship, the ship acquired by the said naturalization.
court stated: "As there was no 'liability' for service, his Art. 11.The intention not to return will be presumed to exist when the
act in applying for relief from a non-existent duty could naturalized person shall have resided in his native country for more than
not create the bar against naturalization. By the terms of two years. But this presumption may be destroyed by evidence to the
contrary.
the statute, that bar only comes into existence when an
alien resident liable for service asks to be relieved." 6. Convention on Conflict of Nationality Laws. 68 This
c. International law on the draftii of aliens. "[Aln
alien does not fall under the personal supremacy of the 63. 1-~~ppenheim,supra, note 8 at 681.
64. Rousseau, Chronique des Faits Internationaux, 71 Revue de
local State; therefore he cannot, unless his own state con-
Droit International bblic 143, 174 (1967). ,
65. 50 Stat. 1317; T.S. 913; 178 L.N.T.S. 227.
56. 65 Stat. 75, chapter 144, § l(d). 66. For bilateral agreements to which the United States is a party,
57. In addition, the act provided for exemption of certain nonirn- dealing not only with the drafting of dual nationals but also with the
migrant aliens holding diplomatic positions and of other nonimmigrant drafting of aliens, see 8 M. Whiteman, supra, note 58 at 561-73.
aliens as determined by the President. 67. Convention between the United States and other powers estab-
58. For the test of the relevant statutes referred to above, see 8 M. lishing status of returning naturalized citizens. Sied at Rio De Janeiro
Whiteman, Digest of International Law 549 (1967). Aug. 13, 1906; ratification advised by the Senate, Jan. 13, 1908, ratified
59. 8 U.S.C. 8 1101(a)(15). Jan. 16, 1909; ratification deposited with draft Jan. 25, 1908;
60. 85 Stat. 348. proclaimed, Jan. 28, 1913. 37 Stat. 1653 (1911-1913).
61. Title 18, U.S.C. 8 1426(a). 68. Sied at the Hague Conference for Codif~cation of Intema-
62. 340 U.S. 162, 71 S.Ct. 224 (1950). tional Law. 5 M. Hudson, International Legislation 359 (1936).