763.72119/6989: Telegram

The Secretary of State to the Commission to Negotiate Peace

3409. Department’s telegram 3343, October 4, 2 P.M.

Department concurs in Woolsey’s view for reasons stated in your telegram 4377, September 27, and for additional reasons hereinafter manifested.

There would seem to be no doubt that the United States Government is not in a position to demand representation of any character on the Reparation Commission until it ratifies the Treaty, because it has neither rights nor obligations under the Treaty until it becomes effective for the United States at the date of the deposit of its ratifications. If it were true that the Reparation Commission could not be organized and could not operate until the Treaty were ratified by the United States or any other single Power, then the performance of the functions of the Reparation Commission could be indefinitely delayed until such time as the Treaty were ratified by the United States and by the other Powers entitled to representation on the Commission upon ratification by them, or permanently prevented by failure of one power concerned to ratify.

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In addition to the running powers of the Reparation Commission there are various functions assigned to the Commission on which time limitations are set for performance, as for example: The Reparation Commission is to determine the amount of damages for which compensation is to be made by Germany and to notify the German Government of that amount on or before May 1, 1921 (Article 233); fix the installments and manner in which Germany shall pay the equivalent of twenty billion gold marks during 1919, 1920, and 1921, (Article 235); receive all ships and boats which Germany undertakes to replace within 2 months of the coming into force of the Treaty (paragraph 2, Annex 3 of Reparation Provisions); notify the German Government within 3 months of the coming into force of the Treaty of tonnage to be laid down in Germany for the account of the allied or associated powers, (paragraph 5, Annex 3 of Reparation Provisions); receive within 60 days of the coming into force of the Treaty lists of property destroyed by the German Government which the allied or associated Governments desire restored and materials which they desire to have produced, (paragraph 3, Annex 4 of Reparation Provisions); require delivery at its option during period from date of effect of Treaty until January 1, 1920 of dye stuffs and chemicals (paragraph 2, Annex 6 of Reparation Provisions); serve as the medium through which Germany within 6 months after the coming into force of the Treaty delivers certain artistic works to Belgium, (Article 247).

It is believed apparent from the foregoing that if these important provisions of the Treaty are to come into force as between the contracting parties who have ratified it, as soon as three of the principal allied or associated powers effect ratification it is essential that the Reparation Commission be organized promptly upon ratification by the requisite number of associated Powers, and that the application of any theory that the Commission should not be organized and operate until the United States or any other single Power has ratified and is represented on the Commission might prevent the execution of some of the provisions of the Treaty within the time specified for performance and do violence to the rule that the construction of agreements which gives effect thereto is to be preferred to a construction which renders agreements invalid and void.

With respect to representation on the Commission before ratification of the Treaty by this Government, although it is believed that the President under his power to conduct foreign relations would have authority to appoint an official representative to serve on the Commission, it is felt that the President would not wish to exercise such power in light of the political situation and the attitude of the Senate. It may be noted that in view of the provisions of the Treaty [Page 14] (paragraph 12, Annex 2, Separation Provisions) that the Commission shall have power to interpret the provisions of the Treaty relating to the Commission, it is believed that the status and powers of the representative designated officially or unofficially by this Government prior to the ratification of the Treaty by the United States would be subject to determination by the Commission itself when organized. It is believed, therefore, that our representative should attend the meetings of the Reparations Commission in an unofficial capacity but that even his attendance at the meetings may be dependent upon the attitude of the Reparations Commission itself.

The above is the Department’s opinion in this matter. The Department is cognizant, however, of the fact that when the Reparations Commission begins to function there may be necessity for protection of its American rights and those of smaller countries particularly in South America. As such rights particularly with respect to the distribution of property, shipping, etc., may come up for adjudication by the Reparations Commission it is important that the United States should not take a position which would possibly waive vital rights and interests. The whole question is subject to argument on both sides, particularly in light of Lord Sumner’s opinion. There is arguable effect in the contention that the several signatories to the Treaty only consented to the formation of a commission with power to adjudicate on the rights of signatories who were not represented on it provided the powers thus adjudicating were those specified in the Treaty. It was well known that the understanding that the United States would be represented on the Reparations Commission had great effect in securing the consent of the various signatories to a commission having such broad powers. It is felt that if the United States gives its approval to the de jure organization and operation of the Reparations Commission some conditions should be attached or understanding reached which would protect our rights and those of the other signatories which we might be inclined to support.