360C.1121/10–446: Telegram
The Ambassador in Poland (Lane) to the Secretary of State
[Received October 4—1:42 p.m.]
1542. Following is translated text of FonOff note dated September 28:
Acknowledging receipt of Your Excellency’s note of August 4, 1946, No. 52331 as well as of August 31, 1946,32 and after careful consideration of the notes, I would wish to share with Your Excellency the following observations:
When discussing matters which are the subject of the above-mentioned notes, the Polish Government considers necessary careful differentiation between the conception of “American citizen” from a person who just lays claim to American citizenship (presumptive citizens).
- 1.
- If the matter concerns persons who possess indisputable and exclusively American citizenship, the Polish Government with regard to these persons acknowledges completely the right of the American Government to exercise its protection over them while they remain in Polish territory. The pertinent provisions of the Treaty of Friendship, Commerce and Consular Rights between Poland and the United States of June 15, 1931, to which Your Excellency referred several times, applies only to such persons. In the case of an arrested person belonging to this category of American citizens, the Polish Government upon request is ready, if judicial procedure permits it, to authorize an official of the Embassy in the presence of a representative of the Ministry of Foreign Affairs to visit this person in prison. It is to be understood that the conversation may be conducted on the basis and within the framework of a prescribed questionnaire.
- 2.
- If the persons concerned possess dual citizenship, Polish and American, the Polish Government continues to persist in the view that the decision whether a given person is or is not a Polish citizen belongs entirely and exclusively to the Polish Government inasmuch as [Page 503] this is a question which, in the purview of paragraph 7 article II of the United Nations Charter, is exclusively within the domestic competence of a given state. Naturally, the Polish Government concedes the same right to the Government of the United States and never intended to inject itself into the matter, leaving to the exclusive decision of that Government whom it considers an American citizen. This means that the Polish Government is interested above all not in whether a given person is or is not an American citizen but whether the person is or is not a Polish citizen. Only when, in the execution to the fullest of its own sovereign rights, it determines that the person concerned is not a Polish citizen, it must take a further step and verify the person’s citizenship in order to know to whose protection the person is entitled. The fact that the Government of the United States applies in citizenship matter not only the principle of jus soli but also jus sanguinis, is well known to the Polish Government. If I did not mention this in my note of April 27 it was only because the effect of the principle of jus sanguinis cannot be the cause of any difficulties with regard to persons who are exclusively citizens of the United States, for in cases where the father of a child born on Polish territory (legitimate children) or the mother (in cases of illegitimate children) are American citizens the Polish Government without any reservations will recognize this child’s American citizenship.
- 3.
- When a person, located in Polish territory, is for any reason whatever acknowledged by the Polish Government to be a Polish citizen then that person is treated on the same basis as its other citizens and the Government does not interest itself whether that person is entitled to some other citizenship. If it were otherwise, a situation would arise whereby Polish citizens would be divided into two categories—common and privileged, that is, having an additional citizenship and enjoying the protection of a foreign power. No sovereign state could acknowledge such discrimination. Therefore, the Polish Government cannot agree that on its own territory a certain category of its own citizens should enjoy the protection of another country. This conclusion originates completely independently from The Hague Convention of 1930 to which the Polish Government referred only as proof that the Convention’s signature by 35 countries, among them four big powers, and indicates that the contents of article IV of the Convention, have become the standard of almost universally recognized international law and the Polish Government persists in this view.
- 4.
- If it concerns persons who are not Polish citizens and whose American citizenship is not proven, then the American Government, if it should wish to extend them its protection, must prove his citizenship beforehand and not depend on the statement of the interested person nor place the burden of proof upon the Polish Government because “ei incumbit probatio qui decit, non qui negat”. In unusual cases where establishment of this proof would be possible only after previous personal discussion with the arrested person, the Polish Government will grant permission, if judicial procedure permits this, to authorize an official of the Embassy in the presence of a representative of the Ministry of Foreign Affairs to visit this person in prison. It is to be understood that the conversation may be conducted on the basis and within the framework of a prescribed questionnaire.
I would now like to refer to the demand of Your Excellency’s Government, that the Polish Government express in advance its agreement to permit officials of the Embassy to visit an arrested person who claims American citizenship but whose statement has not previously been investigated for accuracy. Such a demand does not appear to me to be well founded because in that case every arrestee by claiming an unproved American citizenship could enjoy the protection of the Embassy.
The Polish authorities do not create any obstacles for persons who wish to communicate with the American Embassy for the purpose of establishing their American citizenship and such persons do not need any permission in order to call at the Embassy.
The matter of issuing permits to American citizens for departing from Polish territory when they have already received proper documents as American citizens has already been settled by oral discussion and those persons now are leaving Poland in groups.
The Polish authorities facilitate transportation at American citizens leaving Poland in every way possible, as far as existing transportation means permit and facilitate as well the obtaining of Polish documents, necessary for them.
Also on ships sailing under the Polish flag American citizens enjoy the same facilities as are enjoyed by Polish citizens.
The matter of families of American citizens which possess Polish or other citizenship has been settled and those families, as far as possible, are issued documents necessary for leaving Poland.