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United States Department of State / Foreign relations of the United States diplomatic papers, 1937. The British Commonwealth, Europe, Near East and Africa

Germany,   pp. 319-405 PDF (32.6 MB)

Page 391

arrest or sentence of an American citizen in the future." It is pos-
sible that exception might be taken to such a request, inasmuch as
neither by Treaty provision nor under international law, comity,
etc., would it appear incumbent upon the authorities of the receiving
state to notify Consular representatives of the sending state of the
arrest or detention of one of the latter's citizens; the duties of the re-
ceiving state's authorities would seem to begin only when the arrested
citizen requests permission to communicate with his Consul.
  "Incommunicado", which throws the responsibility on the receiving
state's authorities, begins only when such a request is refused. If
the matter is viewed in this light it might be possible to question not
only the specific request mentioned but the general tenor of both of
the Consular letters involved in this case, and they therefore could be
regarded as inappropriately endeavoring to place a responsibility and
a duty upon German authorities. In other words, if the Consul does
not have direct knowledge of any and all citizens under arrest in his
district it might be presumed that it is because certain of the arrested
individuals have not requested that he be informed. This might at
least be the theory of such a line of reasoning, and such a theory takes
on material form when it is remembered that a discussion of "indi-
vidual cases" is not questioned, the presumption therein being that
the Consul has been informed previously.
  Third, it is possible that some political consideration is being read
into these Consular inquiries. The present day situation in Ger-
many-much different from that in 1923 when the Treaty was signed-
has led practically every other country to look askance at Germany's
methods of justice, and, in turn, it has developed a psychology in the
average German official which leads him to look with suspicion on
every inquiry touching upon those methods. The "fundamental
significance" may therefore involve, in the opinion of the Germans,
matters such as a desire to check up on concentration camps, isola-
tion, lack of faith in German penal systems, and, in general, an un-
necessary prying into the activities of the German secret police.
  In an endeavor to obtain as much light as possible on all angles to
the question, the Embassy has consulted several diplomatic colleagues
in connection with the "opinion" of the Foreign Office. It appears
that as far as the British Embassy is aware, none of their Consular
officers had addressed provincial authorities with protection ques-
tions except in individual cases. The British Service does not operate
on treaty arrangements. On the other hand, a treaty of Consular
Rights exists between Germany and France, according to which, ap-
parently, a distinction is made between purely civil and criminal
cases under the heading of "etat civil" and cases involving political
considerations. A French Consular officer recently inquired into an

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