Foreign Relations of the United States: Diplomatic Papers, 1944, General: Economic and Social Matters, Volume II

740.00119 EAC/11–2444

Memorandum by the United Kingdom Delegation to the European Advisory Commission ²²

EAC (44) 28

Restitution Commission

It is assumed that all enemy countries will be put under an obligation to restore identifiable property, of which they have despoiled any of the United Nations and which can be recovered. Such measure of restitution has already been prescribed in the armistice terms for Roumania, Finland and Bulgaria.²³ The scrutiny of claims to such property is a task which it would be invidious for the powers controlling the enemy countries to perform themselves. At the same time, it is readily separable from the general matter of reparation claims and deliveries, involving, as it does, questions mainly of law and of fact. Such restitution is one of the most urgent demands which will have to be faced. As regards Germany, the present policy laid down for the Supreme Commander, Allied Expeditionary Force, is that he should conserve United Nations property but not release it pending further instructions. Such a “freezing” of identifiable property can only be an interim measure of short duration, and some machinery should be brought into being at the earliest possible moment to adjudicate on claims for its return. (For example, representations have already been received from the Netherlands Government for the delivery to them of certain mining equipment alleged to have been removed from the South Limburg coalfields and to have come into the hands of the Allied forces at Aachen.) It is proposed, therefore, that a special Restitution Commission should be constituted as soon as possible for this purpose.

2. The bulk of the claims will emanate from the liberated territories, and it seems right that the European Allies should play a full part in determining them. It is accordingly suggested that the Governments represented on the European Advisory Commission should agree to the formation of an inter-Allied Restitution Commission, on which these other Governments would be fully represented; provision might also be made for the representation of other United Nations when the Restitution Commission was considering questions of property in which they were interested. The Restitution Commission, which would be composed of plenipotentiary representatives of Governments, should have terms of reference strictly limited to the task of adjudicating on claims for the restitution of identifiable property to its owners and of assisting the Allied control authorities in the enemy countries to effect that restitution. It is a matter for discussion whether a single body should cover all enemy territories or whether separate bodies would be preferable; it seems desirable, at least, that the same body should deal with both Germany and Austria.

3. In so far as United Nations property has merely been placed under custodianship by the enemy authorities, who have continued to respect the ultimate title to it, its restoration is merely a question of reversing, or suspending, the operation of the legislation under which this has been done. Such property can be excluded from the purview of the Commission. Special considerations apply to shipping and to inland transport units, which it will be necessary to use for a time in the general interests of the Allies, regardless of their origin; in any event, they will generally be so readily identifiable as having belonged to any particular country that their ownership should not be in doubt, and the Restitution Commission should not therefore deal with them.

4. The proposal for a Restitution Commission is not to be regarded as conflicting with the proposals of the European Advisory Commission for the machinery of control in Germany. It is supplementary. If a separate Restitution Commission were to deal with Germany it would be possible for it to work in co-ordination with the control machinery. In either case, it could easily—and perhaps usefully—be worked into any Reparation Commission which might be set up, though the different character of its work would result in its remaining more or less an autonomous body.

5. The Restitution Commission might, to a certain extent, usefully perform a dual function. In the first place, it would deal with claims to United Nations property (other than property taken under German custodianship under German law), which came into the hands of the Allied control authorities, and would indicate to the latter to which Government any given piece of property should be restored, either as being Government property or the property of one of its nationals. It should have a wide degree of latitude in deciding its procedure for this, and might, for example, find it convenient to delegate powers to local representatives to settle non-contentious matters on the spot. At the same time, the usefulness of the Commission might be unduly limited if it were only empowered to concern itself with property declared to it by the Allied control authorities. While many objects will naturally never be recoverable, there may well be a considerable class which are either (a) so important that every effort must be made to locate them, or (b) such that the original owner has, or could acquire, fairly accurate knowledge of their present whereabouts, though they have not been disclosed to the Allied Control authorities. The Commission should therefore not be precluded from receiving claims to objects which, although not yet recovered, might well be recoverable if the attention of the Allied control authorities were drawn to the case by the Commission. The Commission would not, however, adjudicate on such claims until the objects had actually been recovered. It would, of course, rest with the control authorities to decide whether enquiries were to be pursued in any particular case, and they would also indicate to the Restitution Commission, in the light of experience, the lines on which the latter should handle claims forwarded to them by Allied Governments as regards property not yet declared to the Restitution Commission by the Allied control authorities.

6. The Restitution Commission should only handle claims sponsored by the Governments concerned; and the latter would, of course, have already decided between rival claims by their own nationals to the same property. The decisions of the Commission should be final and binding upon the Governments, and the Allied control authorities, in acting in accordance with them, would thereby be absolved from all further claims to the same object and immune from complaints. Nevertheless, in the general interest, the Allied control authorities would have to retain the right to refuse or defer the release of any piece of property (e.g., machinery transferred to a German factory, the production from which it was desired to utilise) where they regarded its retention in situ as indispensable. The Commission would have to be instructed whether the property should be released in the condition in which it was found, or whether it should be repaired in cases where it had deteriorated, and some payment required from the claimant in cases where the value had appreciated. This, however, is a question of reparation and must be decided in that context.

7. On this basis, it is considered that the terms of reference of a Restitution Commission (limited here for simplicity to Germany) might be somewhat as follows:—

(i) To receive, consider and determine claims by the Governments of the United Nations, presented either on their own behalf or on behalf of their nationals, for the restitution of identifiable property (other than ships and inland transport units) existing at the date of the invasion of the territories from which the property has been removed by an act of dispossession, where such property has been recovered.

(ii) On the basis of their determination of such claims, to make recommendations to the Allied control authorities regarding the release of the property in question, where it is already in their custody.

(iii) To bring to the notice of the Allied control authorities claims to property which, though not yet recovered, is thought to be readily recoverable or to be of such importance that special effort should be made to recover it; it being understood that it would rest with the control authorities to decide whether enquiries should be pursued in any particular case, and also to indicate to the Restitution Commission, in the light of their experience, the lines on which the Commission should handle claims to property not yet recovered.

8. Experience after the last war shows that elaborate searches for property are not only a burden on the control authorities but are not infrequently disadvantageous to the dispossessed owners, who are liable to wait a considerable time before finally abandoning hope of recovering their property and falling back on a claim for reparation. It would, therefore, be desirable to reach an understanding with the Allies that the work of the Commission will be circumscribed so far as possible, and certainly not become such as unduly to burden the Allied control authorities.

London , 14 November, 1944.

22. Circulated in the European Advisory Commission by the British Representative on November 21, 1944. Copy transmitted to the Department in despatch 19457, November 24, 1944, from London; received November 29.
23. For information concerning armistice terms for these countries, see bracketed note, vol. i, p. 39.