711.624/24
The Ambassador in Germany ( Dodd ) to the Secretary of State
[Received November 30.]
Sir: I have the honor to refer to the Department’s instruction No. 780 dated April 19, 1937, transmitting a draft treaty, Series No. 890, relating to nationality and military service obligations for presentation to the German Foreign Office at such time as may be deemed appropriate, and the Embassy’s despatches No. 3470 and 3583 of May 13 and July 30, 1837, respectively,39 in which mention was made of the citizenship case of one Ransom Otto Theodore Rupprecht, under discussion between the Foreign Office and the Embassy, and the Department’s approval was sought to withhold the presentation of the treaty draft pending the final outcome of the Rupprecht case in order that the Embassy might ascertain the German attitude towards certain citizenship points involved in both matters.
In instruction No. 864 of September 27, 183740 (file No. 624:23), the Department approved the Embassy’s view that it would be desirable to defer presentation of the draft treaty until the Rupprecht case had been settled, with the added direction that in case settlement thereof was delayed more than two or at the most three months, the Embassy should again advise the Department and request instructions, reporting at the same time the current situation and prospects.
As the Embassy has just been informed by the Foreign Office in a note dated November 9th that some time may elapse before a decision in the Rupprecht case is reached, which is interpreted to mean not within the two months stated by the Department, it has been thought advisable to present the facts in that case as they now appear and to request any further instructions as might seem necessary, in the light of such facts, regarding the presentation of the draft treaty.
The Rupprecht case was originally turned over to the Embassy by the Consul General in Berlin in a letter of April 22d, in which reference [Page 469] was made to the Department’s instruction of July 3, 193641 (file No. 362.117:349), addressed to the Consulate General.
On the basis of the information at hand a note presenting the case was addressed to the Foreign Office on May 4, 1837, and after various oral discussions involving minor points and references, the Foreign Office replied in a note dated August 30, 1937. Copies of both notes and a translation of the latter are transmitted herewith,41 and it may be seen from the Foreign Office reply that the German attitude at that time was that Rupprecht’s mother, who resumed her American nationality, was, upon being found the blameless party to a divorce proceeding, entitled to the care of the child’s person under the German laws, but not to parental authority or legal representation of the child. In this connection reference was made to Section 1635 Par. 2 and Section 1684 of the German Civil Code, which reads as follows, in translation:
“Section 1635, Par. 2:
“The right of the father to represent the child remains unaffected.”
“Section 1684:
“The mother is entitled to parental authority:
- 1.
- if the father is dead or declared dead;
- 2.
- if the father has forfeited parental authority and the marriage is dissolved.
“In case the father is declared dead, the parental authority of the mother begins on the date on which the father is deemed to have died.”
It was further stated that Rupprecht could have lost his German citizenship by the acquisition of American citizenship only in case his application for the latter had been filed at the time by his legal representative competent under German laws, i. e. the father, and then only with the approval of the German court for the protection of wards. In this connection reference is made to Section 25, par. 1 and Section 19 of the Reich and State Citizen Law, both of which are quoted below in translation:
“Section 25, Par. 1:
“A German who has neither his domicile nor his permanent residence in Germany loses his citizenship when he acquires a foreign citizenship, if such acquisition takes place upon his application or upon the application of the husband or of the legal representative, but the wife and the person represented lose theirs only if the conditions obtain under which discharge might be applied for under Sections 18 and 19.”
“Section 19:
“The discharge of a person subject to parental authority or under the care of a guardian can only be applied for by the legal representative [Page 470] and only with the consent of the German court for the protection of wards. The office of the prosecuting attorney is also entitled to (enter a) complaint against the decision of the court for the protection of wards; further complaint against the decision of the court of appeal is permissible without restriction.
“The consent of the court for the protection of wards is not required if the father or the mother applies for discharge for himself or herself and, on the strength of parental authority, for a child at the same time and if the applicant is entitled to the care of the person of that child. If the care for the person of the child is included in the duties of an assistant appointed to aid the mother, the mother requires the consent of the assistant to apply for the discharge of the child.”
The note then goes on to say that Rupprecht must be regarded as a German citizen so long as he does not prove that in his case the above-mentioned conditions for losing German citizenship were met and as a German citizen he is subject of German military service, although he may possess American citizenship in addition to German citizenship. The order for Rupprecht’s presentation for military training was temporarily withdrawn, however, pending the presentation of authentic information indicating that he had legally been released from German citizenship, and it was alleged that investigation to ascertain that information could not be carried on by the German authorities, who then suggested that the Embassy take the necessary steps in that direction.
After correspondence with the Consul General at Munich, in which office the case originated, a copy of a letter dated July 6, 1921 addressed by Colonel Rupprecht, Ransom’s father, to the American Consulate General in Zurich, was submitted, in which it was indicated that the father at least had the intent to comply with the German law in releasing his son from German citizenship.
On the basis of this information and other data which had been compiled in the meantime, the Embassy replied to the Foreign Office note outlined above in a note of September 18, 1937, which was handed personally to the proper official in the Foreign Office and at that time the case was once more discussed. A copy of this note, as well as a copy of the memorandum of the conversation dated September 21, 1937, is transmitted herewith for the Department’s information.42
The Department may note from the memorandum mentioned, as well as from the two Embassy notes on the subject, that no written mention was made of the provisions of the treaty of August 25, 1921 between the United States and Germany which are based on Article 278 of the Treaty of Versailles and which read as follows:
“Germany undertakes to recognize any new nationality which has been or may be acquired by her nationals under the laws of the Allied and Associated Powers and in accordance with the decisions of the [Page 471] competent authorities of these Powers pursuant to naturalization laws or under treaty stipulations, and to regard such persons as having, in consequence of the acquisition of such new nationality, in all respects severed their allegiance to their country of origin.”
The Embassy is fully aware of the fact that Rupprecht must be considered as having American citizenship only, on the basis of the provisions of the treaty paragraph quoted above, irrespective of any other considerations. However, these provisions have not been referred to as yet by the Embassy in its formal representations to the Foreign Office for two reasons.
1. First, while the German-American treaty of 1921 is in itself an independent instrument dealing with relations between the two countries only, nevertheless the paragraph quoted above provides for unilateral advantages accruing to the United States on the basis of Article 278 of the Treaty of Versailles. For this reason the immediate reaction in the German mind when reference is made to Versailles is one involving victor and vanquished and signatory force majeure. Such reactions have been exhibited on a number of occasions in the past in the dealings of the Embassy and the Consulate General with German officials. In this respect, the Embassy does not envisage a relationship between the technicalities of the case in hand and the anti-Versailles attitude—it is simply the background described which influences the presentation of these cases.
It is desirable to point out, nevertheless, that from the beginning of the Rupprecht case the Embassy has had the full intention to utilize the provisions of the Treaty of 1921, as intimated in the conversation with the Foreign Office covered by the attached memorandum of September 21, 1937, in case the final decision by the German authorities was unfavorable.
Second, it is noted that certain articles of the draft treaty, particularly Article I, envisage the supersession of Article 278 of the Treaty of Versailles as incorporated in the German-American treaty of August 25, 1921. If Germany has the intention to disregard or in effect to abrogate unilaterally the treaty provisions in this respect, it might seem desirable to test such attitude in the settlement of a particular case. The Foreign Office is naturally fully aware of the provisions of the German-American treaty of 1921, and the final settlement of the Rupprecht case will probably indicate definitely whether the draft treaty should be presented in its present form or whether certain sections thereof should be revised.
It is hoped that the above explanation of the situation regarding the Rupprecht case and the draft treaty will enable the Department to judge as to the advisability of definitely withholding the presentation of the latter to the Foreign Office until the former is finally settled.
Respectfully yours,