The Secretary of State to the Minister in Panama (South)

No. 181

Sir: The receipt is acknowledged of your despatch No. 388, dated February 25, 1924, at the close of which you state:

“It is thought that it would be advisable if a ruling could be made concerning the status, in the Canal Zone, of our own Diplomatic Officers as well as those of other Governments who are exercising their functions in the Republic of Panama, but the Legation has avoided bringing up the question for fear of involving, in some way, the sovereignty of the United States over the Canal Zone. The Canal Zone authorities appear to be in doubt as to the course which they should pursue, especially as regards Consuls.

“It is therefore respectfully requested that some sort of ruling be made which can be used as a basis for definitely determining all of these matters.”

With regard to the diplomatic officers of the United States accredited to the Republic of Panama the Department is of the opinion that such officers have the same status with respect to the Canal Zone as to any other territory over which the United States exercises jurisdiction.

Respecting diplomatic officers of foreign governments accredited near the Government of Panama you are informed that a review of the authorities on international law has failed to reveal a satisfactory [Page 654] definition of their status in the territory of the Canal Zone. It would seem, however that their status might be regarded as analogous to that of a diplomatic envoy traveling through the territory of a third state en route to his post. In the latter case, since the institution of legation is a necessary one for the intercourse of states and is firmly established by international law, there ought to be no doubt whatever that such a third state must grant the right of innocent passage (jus transitus innoxii) to the envoy, provided that it is not at war with the sending or receiving state. The United States asserts that, according to the law of nations a diplomatic officer is entitled to a right of transit to his post by sea, or through the national domain, whether land or water, of a state other than that to which he is accredited. It is not contended, however, that this right embraces one of sojourn in such state, or that the sovereign thereof may not prescribe the route of transit. While evidence is wanting that states generally have as yet agreed to yield rights of jurisdiction over diplomatic officers not accredited to them and passing through their territories, it is not unreasonable to claim for such individuals freedom from petty annoyance whether in the form of criminal prosecution for minor offenses or of civil suits of trivial importance.

For your further information and guidance, it may be stated that consular officers as such, not being diplomatic officers, cannot claim as of right the privileges and immunities accorded the latter. Consular officers do, however, enjoy certain rights and privileges derived from international law and treaties. A consular officer may reasonably claim inviolability for the archives and official property of his office. By various treaties, the inviolability of the consular offices and dwellings is expressly secured. This does not imply, however, that a consular dwelling may be used as an asylum.

In the absence of treaty, a consular officer may justly claim for himself and his office those rights which are accorded by international law. He may also claim those privileges which are accorded by the state of his sojourn to consuls of other states, except so far as they rest upon treaties which through lack of conventional arrangement with this country he is not entitled to invoke.

Consular officers do not enjoy exemption from local jurisdiction. The territorial sovereign is not obliged to yield so great a privilege. In the absence of treaty, it is expected that that sovereign, in the matter of service of process or the taking of testimony, or otherwise, will exercise its rights of jurisdiction in such a manner as to cause the least possible interference with the necessary exercise of the consular function.

The status of foreign consular officers in the Panama Canal Zone, in so far as concerns the performance of their functions in that territory, [Page 655] forms the subject of the following circular addressed by the Department on February 17, 1921, to foreign Embassies and Legations in Washington:

“The Secretary of State … has the honor to state that the Government of the United States believes it to be desirable that foreign consuls exercising consular functions in the Isthmian Canal Zone should do so under exequaturs issued by the Government of the United States. It is requested, therefore, that hereafter an additional commission, addressed to the President of the United States, be issued to all consuls of the … Government who may be appointed or assigned to the Canal Zone, and be presented to this Government with the request for the exequatur in accordance with customary procedure.”

Note has been taken of the reference in your despatch under acknowledgment to the foregoing circular and of your statement regarding your conversations with the Canal Zone authorities concerning its present enforcement by the latter. For your information in this connection there are enclosed herewith copies of correspondence between the Department and the War Department, relating to the subject, from which you will note that the Department has considered it desirable that the system of recognizing foreign consuls in the Canal Zone, outlined in the before mentioned circular of February 17, 1921, should be put into force immediately. The reasons which prompted the Department to take this action are set forth in its letter to the Secretary of War, dated April 2, 1924, a copy of which accompanies this instruction.10

I am [etc.]

Charles E. Hughes
  1. Letter printed supra.