The Chargé in Germany (Gilbert) to the Secretary of State
[Received January 3—3:30 p.m.]
6. Embassy’s 729, December 14, 9 p.m.36 There follows the text (translation made in this office) of a first person note addressed to me [Page 575] signed by Weizsacker37 dated December 30 which has just been received.
“In reply to your note of December 14, 1938, No. 2,38 relative to the treatment of American citizens in Germany, I have the honor to state as follows:
“According to your note, the Government of the United States only feels it may expect a general assurance from the German Government to the effect that American citizens will not be subjected to differential treatment due to their race or creed. It believes that it can base this expectation on the assertion that it is one of its fundamental principles to make no distinction between American citizens on the basis of race or creed and that in its relations with other countries has always contested the right of the latter to apply on their part such discrimination to American citizens.
“Naturally the Government of the United States of America, like any sovereign Government, has a right to set up political principles of one kind or another regarding measures to be adopted within its own country in the questions here involved. It is an entirely different question however whether such principles are also legally binding on other Governments regarding measures falling within their sovereignty. Obviously that would only be the case if such principles either corresponded with universally accepted rules of international law or if they had been made the subject of special agreements between separate states.
“There is, however, no general principle in international law according to which a state would be bound to refrain from discriminatory treatment of foreign citizens residing in its country based on race or creed or other characteristics. The American Government is probably aware that the German Government is not the first, nor is it the only, Government that has considered such differential treatment necessary in specific cases. In no case has it done so, however, on the basis of the foreign citizenship of the persons affected; it has applied special measures of the kind in question to certain categories of foreign citizens only when its own citizens of the same categories were likewise subjected to these measures. Beyond that, out of special consideration and where it proved to be technically feasible, the German Government even legally conceded more favorable treatment in this connection to foreign citizens than to its own citizens.
“Therefore the only question remaining to be answered is whether and to what extent any special treaty agreements between Germany and the United States of America may stand in the way of the application to American citizens of the German measures challenged by the American Government. In this respect the Foreign Office has repeatedly declared to the American Embassy, orally and in writing, that the German Government would of course respect rights to which American citizens were entitled by virtue of treaties between the two countries. To date the American Embassy has not informed the Foreign Office of a single case in which, in its opinion, such treaty rights had been violated by German measures. If such cases should [Page 576] be brought to its attention by the American Embassy, the German Government for its part is prepared to examine and settle them on the basis of prevailing treaty provisions.”