325.1121 Bethune, Larry K./25: Telegram

The Ambassador in Chile (Culbertson) to the Secretary of State

33. Referring to my telegram No. 32, April 1, 6 p.m.21 Following is a suggested translation of the note from the Foreign Office received at the Embassy tonight:

“I have the honor to refer to notes numbered 58622 and 581 [591]23 in which Your Excellency, in connection with the arrest of the Manager of the General Motors Acceptance Corporation, Mr. L. K. Bethune, informs me that the system of incommunication is not recognized [Page 936] under the jurisprudence of the United States, and therefore, when an American citizen is held incommunicado abroad, the policy of the Government of Your Excellency is to ask that his diplomatic and consular representative and his lawyer may see him to the end that the necessary measures may be taken to safeguard his interests and his defense.

Your Excellency adds ‘that of course it was not its intention to infer, even by implication, that American citizens in Chile are not subject to Chilean laws.’

In reply I have to reiterate to Your Excellency what I said verbally in our first conversation which preceded the notes of Your Excellency referred to.

Incommunication in Chilean penal law is a proceeding in criminal investigation and since it is a legal prerogative of the judge, he alone is competent to apply, suspend, or attenuate it, and to determine its duration. But the law at the same time insures the efficacious defense of the prisoner by providing different recourses which give an opportunity for intervention by highest courts to confirm or to revoke the decision of the judge.

In conformity with our Constitution the Executive cannot intervene in matters pertaining to the judicial power. Chilean law is obligatory for all the inhabitants of the Republic without distinction as to nationality, a principle that is even more rigorous in matters which relate direct to public and social order.

In the concrete case of Mr. Bethune, the request of Your Excellency with regard to intervention by my Government was not justified under international principles, and the manner in which the judge applied the Chilean laws of procedure could be qualified or corrected only by the respective higher court.

In accordance with this juridical criterion which has been the invariable standard of this Ministry and with which the Government of Your Excellency has always agreed, I must reiterate to Your Excellency that my Government has not been able to accede to the request made by Your Excellency.

In so informing Your Excellency I have pleasure in renewing the assurances of my highest and most distinguished consideration.”

I see in this note an appeal to South American prejudice against the foreigner and defense of antiquated practice. Several of my colleagues do not admit that they can be refused communication with their nationals. I believe that our position has been sound from the beginning and that Chilean note cannot be defended under international law.

Culbertson
  1. Not printed.
  2. Ante, p. 932.
  3. See telegram No. 15, March 27, 6 p.m., to the Ambassador in Chile, p. 934.