862.4016/1580
The Ambassador in Germany (Dodd) to the Secretary of State
[Received November 26.]
Sir: I have the honor to report that considerable solicitude is being displayed by various diplomatic missions, especially by those of Great Britain, France, The Netherlands, Rumania, Czechoslovakia and Switzerland, in regard to discrimination against their Jewish nationals. The pertinent portions of despatch No. 2464 of September [November] 15, 1935,53 proceeding by this pouch, entitled: “Significant Instances of Police Actions against Foreigners,” will account for much of this anxiety. There is also, however, the important legal problem raised by the German regulations that bar Jews from certain occupations and professions as the result of which not a few foreign nationals have lost the means of livelihood that they previously enjoyed. The question is being canvassed as to whether this form of discrimination signifies a violation of the Treaties.
This Embassy is not informed as to whether the Department holds that the depriving of an American Jew of his means of livelihood, on the ground that similar legislation applies to German Jews, constitutes a violation of the Treaty of Commerce of 1923,54 or not. The question was raised in the Consul General’s despatches No. 228 of February 26,55 entitled “German Discrimination against American Citizen of Jewish Race,” and No. 291 of April 5,53 entitled “Transmitting Memorandum Respecting Certain Articles of the Treaty of 1923 between the United States and Germany,” particularly on pages 4 and 6 of the Memorandum under reference. That latter despatch, however, was written in contemplation of the possibility that our Government might wish to take some stand in the premises in view of the revision of Article 7.56 Inasmuch, however, as this revision was prompted by the Germans and not by our Government and concerns purely the most-favored-nation clause as applied to commerce, it would seem logical to suppose that the proposed changes in no way raise the question of the interpretation of Article 1 of the Treaty.
The main question at issue would seem to be whether the Proviso that American citizens in Germany must submit themselves “to all local laws and regulations duly established” would justify discrimination against American Jews. If this question be answered in the affirmative, it would appear that the German Government has the [Page 410] right to draw discriminations between American citizens which the American Government does not itself draw, and, further, that it can deprive such, citizens of their means of livelihood, not to say of their property, without compensation.
It will doubtless be recalled that the issue as to whether a foreign power may draw invidious distinctions as between American citizens came to a head, albeit in a much less aggravated form than at the present, in the case of the Russian Treaty of 1832, which was denounced in the administration of President Taft, because the Russian Government refused visas to Jewish bearers of American passports.57 Although it was held at that time that this form of discrimination warranted denunciation—especially in view of imminent congressional action in this sense—some well-qualified persons considered that the legal position of the United States in this matter was not flawless, since our Government might have barred Russian Mohammedans on the ground that they were potential polygamists, and also Russian subjects of the Chinese race. It is also possible that anti-Japanese legislation in the Pacific states may affect the Department’s position; also the possible effect on a foreign negro of “Jim Crow” and similar legislation in the South.
Lest the Department should consider that the Embassy is raising an hypothetical question which has not sufficient actual significance to warrant a decision, it may be stated that in addition to cases presented in the Memorandum of the Consulate General above referred to, as also to that office’s despatch No. 660 of November 15,58 entitled “Discrimination Against Jews Involving American Citizens,” there is now pending that of an American Jew, duly registered at the Consulate General, who has been earning his living here for several years as a singing teacher (?) Tonbilder) and who has recently been ordered to cease his professional activities on the ground that he is not eligible to the Cultural Organization in which all such persons must be enrolled. The Embassy further is of the opinion that if the question of Treaty is raised, the German Government might be more willing to afford proper compensation or exchange facilities for removing money for the persons affected.
As far as I am aware, no other Government has yet reached a decision. There is a feeling, however, among all diplomatists here with whom the matter has been discussed, that a common attitude should be adopted, and keen interest has been evinced as to the position of the United States. Of the individual missions, it may be mentioned that the Dutch Minister stated that he had concentrated his efforts, not without success, on obtaining foreign exchange so that his dispossessed [Page 411] nationals may leave the country without loss. Holland is of course better situated for obtaining foreign exchange for its nationals than are the United States. He considers that the legal rights of his Jewish nationals under the Treaty are somewhat doubtful, and he truly observed that whatever the Treaty rights, the Germans are not going to tolerate that foreign Jews should continue in the debarred activities. The Rumanian Minister, on the other hand, who is himself a lawyer of some note, considers that the legal case against the German Government is good and in this connection he considers it of significance that Article 4 of the Weimar Constitution, still nominally in force, has an important bearing. This Article reads:
Article 4
“The generally recognized principles of the law of nations are accepted as an integral part of the law of the German Commonwealth.”
According to conversations with members of the British Embassy and from the report of the Consulate General in Munich in regard to the Selz case, mentioned in the Embassy’s despatch above referred to, Downing Street prefers not to raise the legal question of discrimination between various kinds of British subjects, but rather sought to emphasize the unfortunate effect on public feeling in Great Britain. The British Consul in Munich apparently did raise the discrimination issue in the first instance. Selz, according to last accounts from the British Embassy, has not yet been released and has been deprived of his British passport.
The Hungarian Chargé stated that he had been protesting in regard to discrimination against Hungarian Jews for a considerable time past, sometimes invoking the Treaty and sometimes using other arguments. He did not consider that the argument based on the Treaty produced very much more impression than any other argument.
There is another instance which has been reported by the American Consulate General at Munich. It appears that in Munich last year a case arose of an American citizen against whom a sterilization process was started under the law for the preservation [prevention] of the promotion of hereditary diseases, and the authorities claimed in this connection that a foreigner while he is within the limits of Germany can claim no exemption from the application of laws which exist for the welfare of the population and which apply to all persons of definite classes or conditions, without discrimination in the matter of nationality.
It would be too much to say that the argument of indignant public opinion abroad apparently relied on by the British Foreign Office in the Selz case has worn itself out. The German Government is still very sensitive to foreign criticism. On the other hand, however, extremists [Page 412] of the Nazi Party have so far succeeded in carrying out their program in the face of this foreign opinion. The Embassy feels therefore that it is far more effective to invoke foreign indignation if it can be shown that this indignation is likely to be productive of corresponding action. This is the practical reason for claiming treaty violation.
Should the Department, however, decide that the legal case based on the Treaty against discrimination in the matter of American Jews is not sufficiently strong, it might perhaps indicate whether it would object to some form of collective action with other missions on the part of this Embassy, should a disposition for such action develop.
Respectfully yours,
- Not printed.↩
- Signed at Washington, December 8, 1923, Foreign Relations, 1923, vol. ii, p. 29.↩
- Not printed. This despatch reported difficulties of a moving picture theatre manager.↩
- Not printed.↩
- Treaty signed June 3, 1935, p. 451.↩
- See Foreign Relations, 1911, pp. 695 ff.↩
- Not printed.↩