Foreign Relations of the United States, Diplomatic Papers, 1944, The American Republics, Volume VII

810.5051/44: Telegram

The Ambassador in Colombia (Lane) to the Secretary of State

Bogotá, April 11, 1944—4 p.m.
[Received April 12—1:49 a.m.]

679. Representatives of RDC and FEA have been informed of contents of Department’s telegram 476, April 6 [8], 6 p.m. They agree with me that the Department should reconsider policy set forth therein in order to permit them to appear voluntarily and not under compulsion before local courts so that latter may assume jurisdiction in small nuisance lawsuits for the following reasons:

1. In view of the widespread commercial activities of FEA and RDC involving the employment of numerous native laborers the number of small suits involving payment of wages, sick and accident benefits, cesantia, overtime, et cetera, might be considerable and cause an unnecessary amount of annoying work in the Ministry of Foreign Affairs, the Embassy and the State Department far out of proportion to the amounts involved. Many of these small suits having little if any legal or moral justification would undoubtedly be dismissed in court and their filing would automatically be discouraged; on the other hand plaintiffs would probably be encouraged by unscrupulous lawyers to press for settlement through diplomatic channels.

2. Local plaintiffs against FEA and RDC would have available to them recourse through the Ministry of Foreign Affairs and diplomatic channels in an effort to collect claims. However, in the event that RDC or FEA should wish to collect claims from person or firm defaulting in obligations towards those agencies they would be unable to seek recourse through the local courts⁴¹ and at the same time it would be impossible, according to counsel for FEA and RDC, to present diplomatic claims to the Foreign Office in such cases on behalf of RDC and FEA as Colombian Government would have no jurisdiction over such persons or firms. In other words, the practical result of rejecting jurisdiction of local courts would be to give unfairly unfavorable status to claims advanced by RDC and FEA as contrasted with claims against them.

3. From the standpoint of our political relations with Colombia it would be unfortunate to open the door to a number of diplomatic claims involving wages, working conditions, et cetera, since sympathies of the laboring classes would probably favor the claimants and the attendant newspaper publicity would not enhance the prestige of our Government or the effectiveness of the Embassy. Persons unfriendly to the United States could distort our official attitude towards labor claims in such a way as to be embarrassing and politically undesirable.

4. If our Government should refuse to submit to the jurisdiction of local courts in Colombia in such cases, a precedent would be established which might be embarrassing in any similar cases arising in the United States. If, some Governments should dispatch missions to the United States for purely commercial purposes, it would seem that employees of such missions, even if United States citizens, might be considered exempt from the jurisdiction of our city, state and federal courts. Before such a precedent is established, it would seem that the Department and perhaps the Attorney General would wish to give serious consideration to the implications of such a policy if applied reciprocally.

5. While the RDC and FEA are of course official agencies of the United States Government, their activities are essentially of a commercial character, and they do not exercise governmental functions in the usual and normal sense of the term. From this standpoint it would seem unnecessary, as a matter of policy, to insist upon exemption from local jurisdiction in the same way that diplomatic representatives are traditionally accorded such exemption.

The whole problem has been thoroughly discussed with Dr. Roberto Urdaneta, counsel for RDC and FEA, who is a prominent Colombian jurist, former Ambassador and former Minister of Foreign Affairs. He has expressed himself to me in the strongest of terms as being in disagreement with the policy set forth in the Department’s telegram under reference and has urged that it be reconsidered especially because of possible unfavorable effect on relations between the two countries.

For all the foregoing reasons I respectfully request the Department to reconsider its telegraphic instruction of April 8, with a view to permitting cases such as that referred to in my telegram 652 of April 6, 3 p.m., to be handled by local courts, on the understanding that RDC and FEA submit voluntarily and not compulsorily to court’s jurisdiction.

Lane

41. A marginal note at this point reads: “Sovereign immunity of the U.S. from being sued does not prevent the U.S. from bringing suit in this country, but if it does so it becomes subject to a cross action. R[ichard] W. F[lournoy]”