862.1121/20
The Ambassador in Germany (Dodd) to the Secretary of State
[Received December 4.]
Sir: I have the honor to call the Department’s attention respectfully to a point of procedure in the relations between American Consular officers and certain German officials, which has been raised by the Foreign Office in a note dated November 5, 1936. A copy and translation of the note, together with two enclosures, are transmitted herewith.90
The facts in this case appear to be as follows:
In complying with a circular instruction from the supervising Consul General in Berlin,91 the Consular officers at Dresden and Bremen addressed communications to the “Sächsische Stattskanzlei in Dresden” (State Chancery of Saxony at Dresden) and “Oberstaatsanwalt, Oldenburg” (Chief Attorney-General, Oldenburg) respectively, in which they requested the names and other information regarding all American citizens who might be sentenced or imprisoned in their districts. It appears further that these communications were not answered but were referred to the Foreign Office and the note mentioned above was the result.
The Foreign Office transmits copies of the communications of the Consular officers mentioned with the suggestion that “as in the opinion of the Foreign Office these inquiries do not seem suited for direct business communications between an American Consular representative and the supreme authority of a State, they be presented through diplomatic channels”, the term “State” applying not to the German national State but to the “Gaue” or provinces of Saxony and Oldenburg. The individual or office addressed in these instances may be considered as national in the sense that according to the administrative organization of Germany at present practically every official or organization having to do with German government is national in character.
The important point is whether or not Consular officers, in the pursuit of their duties in protecting American citizens, should be required to address themselves to German authorities via the Embassy and the Foreign Office, with the possible exception of the local police and a few minor local officials. (It would be interesting to know the precise distinction which is made).
[Page 387]Reference is made to the provisions of the Treaty of Friendship, Commerce and Consular Rights dated December 8, 1923, Article 21,92 a portion of which reads as follows:
“consular officers, nations of the state by which they are appointed, may, within their respective consular districts, address the authorities, national, state, provincial or municipal, for the purpose of protecting their countrymen in the enjoyment of their rights accruing by treaty or otherwise.”
The above provisions were brought to the attention of the Embassy in the Department’s telegram No. 129 November 14, 6 p.m., 1934,93 in connection with the desire of the American Consul General in Berlin to communicate with the Undersecretary in the Prussian Ministry of Justice regarding the Steele and Roiderer94 cases. In this telegram the Department pointed out that the treaty stipulations do not provide for proceeding through the diplomatic representative. At that time apparently the Embassy’s discussion of the matter with the Foreign Office resulted in the Embassy’s telegram No. 216 of November 15, 12 noon, 1934,93 which outlined the conversations, and requested instructions from the Department on the point as to whether or not a protest should be made against the refusal of the authorities to permit the Consul General to communicate with the official mentioned. No instructions were received.
The case outlined is similar to the one now under consideration except that the official with whom contact was desired at that time was probably more national in character than those in the provinces with whom Consular officers now desire to communicate.
Apparently the Foreign Office does not question the specific treaty rights of Consular officers in this regard. It does however question the procedure, and the procedure is not specifically set forth in the treaty. In other words, whereas the United States Government might well assume from the wording of the treaty that Consular communication may be made directly, the German interpretation apparently now presupposes communication via the mission in certain important cases. Such an attitude is intensified by increasing centralization in administrative matters and furthermore, there is always the formalistic viewpoint of the German Foreign Office to be considered.
From various inquiries among our diplomatic colleagues, it appears that the general disposition at the moment is to place the protection of individuals as much as possible in the hands of the diplomatic missions, which, after cases have been prepared by Consular officers, may take them up with the Foreign Office. Such disposition apparently [Page 388] makes for quicker and more effective action. At the same time the Consul General, with whom the matter has been discussed, feels that it is quite important that no right provided by treaty or otherwise should be foregone, especially in view of the conditions existing in Germany at present, and the Embassy is naturally in total agreement.
It would be of assistance in connection with any discussions which the Embassy may find necessary with the Foreign Office regarding these Consular rights, to be informed as to what American national and state authorities German consular officers are permitted to correspond with directly and without question as a treaty right, such as United States District Attorneys, Governors, et cetera, in the pursuit of their protection duties, and if the Department feels that the German Government’s position is untenable, to authorize the Embassy to suggest, if necessary, the possibility of imposing similar limitations on German consular officers in the United States.
The matter is therefore placed before the Department with the request that the Embassy be instructed specifically as to its attitude and/or action and that such instruction be transmitted telegraphically.
Respectfully yours,