Foreign Relations of the United States Diplomatic Papers, 1936, The American Republics, Volume V

810.79611 Tampa-New Orleans-Tampico Airlines/283

The Bolivian Legation to the Department of State

[Translation]

Memorandum

The Minister of Bolivia to the Government of the United States²⁶ has, for some time, been holding conversations with the Honorable Mr. Sumner Welles, Assistant Secretary of State, concerning the lawsuit²⁷ which is being tried in New York against those accused of violation of the proclamation of the President of the United States²⁸ which prohibited the sale of arms and munitions to Bolivia and Paraguay, during the Chaco War. In these conversations Mr. Assistant Secretary Welles began by requesting of the Government of Bolivia authorization for the Consul General of Bolivia in New York, Mr. Walter J. Decker, to testify concerning the cases denounced. This authorization having been refused by the Government of Bolivia, on the basis of international practice and conventions in force, Mr. Welles insisted that, at least, the Consul should be authorized to make a confidential report on whatever he knew concerning the matter.

It is necessary to point out that, previously, the Consul, Mr. Decker, had received, from the official charged with the investigation in New York, Mr. Conboy,²⁹ various comminatory demands, not only to testify, but also to exhibit the documents of his office file, which Mr. Decker refused to do, on the basis of the universally recognized inviolability of consular archives.

The request by the Department of State that the Consul should make a confidential report was given favorable consideration by the Government of Bolivia, on the condition that it should not include the acts performed by the Consul in the exercise of his functions nor facts the divulging of which might compromise the secrets of the national defense. Consequently the Consul was authorized by the Legation in Washington to furnish the information requested.

But the Legation was informed shortly afterward, to its great surprise, that the above-mentioned Mr. Conboy, in an interview held with Mr. Decker in the office of the Consulate, had begun by questioning the latter on the destination given to certain sums of money drawn to his order by the Government of Bolivia. As Mr. Decker refused to furnish such data, because he was not authorized to do so and because doing so meant going beyond the conditions agreed upon, Mr. Conboy left the Consulate, telling Mr. Decker that he would be involved in the trial and would be obliged to appear therein as an accused party. At the same time Mr. Conboy notified the Central Hanover Bank and Trust Company of New York to submit a statement of the personal account of Mr. Decker and of the Consulate General’s account, feeling sure of obtaining, by that method, the data he required.

The Legation being informed about the above measure, the Minister of Bolivia immediately got in communication with Mr. Assistant Secretary Welles, putting on record with him his protest against the said measure which he deemed contrary to international practice, as involving an attack upon the liberty of action of a consular functionary in the discharge of his duties. Mr. Welles took note of the protest and, taking up a consideration of the situation, found the attitude of the Consul justified in refusing to give information regarding his official acts, but insisted that he submit the confidential information authorized. At the same time he stated, like Mr. Conboy, that the Consul ran the risk of being involved in the case as an accused party. The Minister of Bolivia rejected peremptorily on that occasion any possibility that the Consul could be involved in a court action due to acts performed in the exercise of his functions.

Another interview held at New York between the official in charge of the investigation and the Consul seems not to have satisfied the former, in spite of the efforts made by Mr. Decker to give him all the information which should not be incompatible with the discharge of his official duties. The fact is that, on the following day, the Central Hanover Bank and Trust Company of New York received a formal judicial notice to furnish a copy of the statement of the account of the Consulate General.

As if this were not enough, another judicial order required and obtained from the Postal Telegraph-Cable Company copy of the despatches exchanged between the Consulate and the Government of Bolivia, both in current language and in code, notwithstanding the opposition of the Consulate. On this point, which signifies an attack upon the independence which consular representatives ought to enjoy in the exercise of their functions and which moreover involves a violation of the secrecy of the official correspondence of a foreign nation, and of what may be considered as a part of the consular archives, the Government of Bolivia formulates its protest by this memorandum. There is also the circumstance that, since the key used in the cable correspondence between the Government of Bolivia and the Consulate General in New York is the same as is used in the confidential diplomatic despatches between the La Paz Chancellery and its legations abroad, any attempt to decipher said key signifies a violation of the secrecy and respect universally granted to diplomatic correspondence. The Government of Bolivia considers it superfluous to call the attention of the Department of State to the future consequences that a precedent such as the one noted would have and with very good reason hopes that the Government of the United States will take the steps it may deem proper to prevent the consummation of the act pointed out.

In connection with the prosecution of the Consul General in New York, it is necessary also to note certain considerations tending to prevent the accomplishment of an act which not only would be contrary to generally recognized practice but also to the conventions in force. Although it is true that in general there is no exemption from civil or criminal jurisdiction for consuls in private matters, it is also true that it is fully recognized by doctrine and by positive law, even for acts which they perform in the discharge of their official duties. Article 16 of the Convention concerning Consular Agents signed at Habana on February 20, 1928,³⁰ and ratified by the United States Government, states: “Consuls are not subject to local jurisdiction for acts performed officially within the limits of their competence …“^* Although Bolivia has not yet ratified the convention cited, she can have recourse to it on this occasion because of its having been ratified by the United States, since the Bolivian-American treaty of May 13, 1858,³¹ grants to the contracting parties the most-favored-nation treatment. As the Habana consular convention is binding on the United States with respect to the other nations that have ratified it, it is binding also with respect to Bolivia, by virtue of Article 31 of the said treaty, which says:

“In order to make more effective the protection which the Republic of Bolivia and the United States will in the future afford to the navigation and commerce of their respective citizens, they agree to receive and admit Consuls and Vice Consuls in all the places open to foreign commerce, who shall enjoy therein all the rights, prerogatives and immunities of the consuls and vice-consuls of the most-favored-nation …”^*

It might be alleged that the Consul General of Bolivia at New York may have exceeded “the limits of his competence” in the case in point: but there is no doubt that only the Government of Bolivia, the authority which is the source of his competence, has the power to evaluate it. As the Government of Bolivia has not received any diplomatic protest relative to the acts performed by the Consul of Bolivia at New York, and occasion therefore not having arisen to study such acts from the point of view of their legitimacy, it is logical to suppose that the judicial authorities charged with the investigation as to possible contraventions of the proclamation of May 28, 1934, will refrain from adopting precipitate and forcible measures.

The insistence on obtaining first a sworn statement and then a confidential report from the Consul clearly demonstrates, moreover, from the first any idea that the said official might be compromised in the court action was discarded, as it is impossible to imagine that an attempt would have been made to force from him by such means a confession against himself, which would violate the most elementary juridical principles.

The presidential proclamation of 1934, moreover, is clear and conclusive in the sense that it only prohibits and applies sanctions to the sale of arms and munitions to Bolivia and Paraguay, without in any way mentioning the possible buyers or exporters of such articles. Even in the hypothetical case that some charge would result against the Consul General of Bolivia at New York for having purchased or exported war matériel, we should bear in mind the repeated declarations of the Department of State in connection with the protests of the Government of Bolivia, to the effect that an embargo on or prohibition of exportation was not decreed in 1934 in contravention of the commercial treaty of 1858, but merely a prohibition of sales which only included American merchants and manufacturers.

The Government of Bolivia hopes that the Government of the United States, inspired by the sentiments of equity and good will which characterize its relations with friendly nations, will see fit to adopt the measures that it deems proper in order to rectify the erroneous procedures followed in this case and to avoid new complications in the matter.

Washington, February 7, 1936.

26. Enrique Finot.
27. United States v. Curtiss-Wright Export Corporation, et at, April 6, 1936, in the United States District Court for the Southern District of New York, 14 Federal Supplement, 230; and on appeal to the Supreme Court, December 21, 1936, 299 U. S. Reports, 304.
28. Proclamation No. 2087, May 28, 1934, Department of State, Press Releases, June 2, 1934, p. 327; see also Foreign Relations, 1934, vol. iv, pp. 289 ff.
29. Martin Conboy, Special Assistant to the Attorney General.
30. Foreign Relations, 1928, vol. i, pp. 598, 601.
31. As the convention in question is not immediately available to the Translating Bureau, the above wording is a translation from the Spanish above quoted. [Footnote in the file translation.]
31. Hunter Miller (ed.), Treaties and Other International Acts of the United States of America, vol. 7, p. 733.
32. As the convention in question is not immediately available to the Translating Bureau, the above wording is a translation from the Spanish above quoted. [Footnote in the file translation.]