Foreign Relations of the United States: Diplomatic Papers, 1945, European Advisory Commission, Austria, Germany, Volume III

740.00119 EAC/6–1345

Notes by the Secretary General of the European Advisory Commission (Donaldson) of the Nineteenth Meeting of the Allied Consultation Committee of the European Advisory Commission, Field at Lancaster House, London, June 8, 1945, 11:30 a.m.³⁹

E.A.C. (A.C.C.) 45 19th Meeting

	Present:
	Mr. G. F. Saksin (in the Chair)
Viscount Hood		Count de Leusse
	Brigadier-General V. Meyer
	Mr. E. A. Lightner, Jnr.

The following representatives of Allied Governments were also present:—

Belgium	Monsieur Kaekenbeeck40
	Baron Beyens
Luxembourg	His Excellency Monsieur André Clasen41
Netherlands	Dr. W. Huender
	Secretariat:
	Mr. E. P. Donaldson
	Mr. E. A. Paton-Smith

Questions Raised by the Representatives of Belgium, Luxembourg and Netherlands Governments in Memorandum P12C/10/45⁴²

The Chairman said that before replying to the specific questions raised in the memorandum he wished to make the following general remarks:

These questions were drawn up in February last before the issue of the communiqué on the decisions of the Crimea Conference⁴³ and before the defeat of Germany had been formally proclaimed in the Declaration signed at Berlin on 5th June. The representatives of the three Governments had not then seen the full text of that Declaration (of which copies were handed to them on 25th May) nor the Statements by the four Powers on Zones of Occupation in Germany and on Control Machinery in Germany (of which they had been informed on 2nd June). All these documents, as well as the statement on consultation with the Governments of other United Nations, had since been publicly issued by the Four Great Powers, on 5th June. Broadly speaking, these four documents provided replies to the six questions contained in the memorandum but the Committee had been authorised to return specific replies to those questions as follows:—

I (Meaning of the phrase “in the interests of the United Nations” used in the preamble to the Declaration of 5th June, 1945)

The European Advisory Commission understands that it is the intention of the four Governments that the Declaration regarding the Defeat of Germany shall operate for the benefit and in the interests of all the United Nations which are in a state of war with Germany.

II and III (Personal responsibility of German signatories of the Instrument of Surrender for acts of terrorism committed in occupied territory)

As there are no German signatories of the Declaration of 5th June, these questions do not arise.

IV (Repatriation of Displaced Persons, nationals of the other United Nations)

Provision for this is made in Article 6 of the Declaration of 5th June, and from paragraph 3 of the Statement on Control Machinery in Germany it would be seen that a Division of the Control Staff would be set up to deal with Prisoners of War and Displaced Persons.

V (Association of other Allied Governments with the Machinery of Control and Military Occupation)

Provision for this has been made, as will be seen from paragraph 5 of the Statement on Machinery of Control in Germany and from the last sentence of paragraph 1 of the Statement on Zones of Occupation relative to the inclusion of auxiliary contingents among the Allied forces of occupation.

VI (Revival of German Pre-War Treaty Obligations)

The Commission are unable to answer this question in the absence of a list of the treaty instruments which the three Governments represented here have in mind.

In the discussion which followed the questions summarised below were asked (unless otherwise stated) by Monsieur Kaekenbeeck and the replies were given by Mr. Saksin.

Q. Could the Committee expand its answer to Question I by saying whether there is any essential difference in the consequences arising from the use of the phrase “in the interests of the United Nations” instead of the phrase “on behalf of the United Nations”? We understood that the former wording was adopted since the circumstances did not permit of prior consultation with, and securing the assent of, the Governments of all the United Nations.

A. The Committee is not empowered to add to its answer in interpreting the meaning of the phrase in question; but it will report to the Commission the desire of the representatives of the three Governments for a more precise definition of the meaning.

Q. (Lord Hood) Could Monsieur Kaekenbeeck indicate whether the consequences to which he referred are the immediate practical consequences of the issue of the Declaration or the legal consequences ultimately entailed by the unconditional surrender of Germany?

A. (Monsieur Kaekenbeeck) If the Declaration imposes obligations on Germany on behalf of all the United Nations in whose interests the Four Powers have issued it, the legal consequences of such an order to the German authorities and people would be the creation of direct rights in favour of each of the United Nations as against Germany, and those rights could be enforced against Germany, after the supreme authority in Germany ceases to be exercised by the Controlling Powers, by each of the United Nations severally, in so far as their interests are respectively concerned.

Q. (Lord Hood) Does Monsieur Kaeckenbeeck suggest that every act of the Control Council must have the concurrence of all the United Nations in whose interest the Declaration has been issued?

A. (Monsieur Kaekenbeeck) No, that is not suggested. It is the ultimate legal consequences of the Declaration which are in question.

Mr. Saksin said that the replies given by the Belgian representative had clarified the position and would assist the Committee in making their report to the Commission.

Q. Referring to paragraph 5 of the Statement on Control Machinery in Germany, would the three Governments represented at this meeting be regarded as “United Nations Governments chiefly interested” for the purpose of liaison with the Control Council?

A. Countries like Belgium, Luxembourg and the Netherlands who have suffered the worst consequences of Nazi aggression and have taken an active part in military operations against Germany are undoubtedly included in this description.

Q. Referring to Article 2(d) of the Declaration (which covers the de facto evacuation of occupied territory), what steps are contemplated to restore the de jure status quo?

A. The Commission has considered this question, but the Committee is not empowered to give an authoritative reply. It will report this question and seek instructions.

Q. (Lord Hood) No purported “annexation” by the enemy of Allied territory has ever been recognised by the Four Great Powers. Would it not be for the Government concerned to make its position clear to its own people by proclaiming the nullity of any such unilateral “annexation” and asserting that its de jure sovereignty has never ceased?

A. (Monsieur Kaekenbeeck) The Governments concerned would wish to be assured that the Four Powers share their view that there is no question of the rules of State succession in International Law applying to such territories, i.e. that the “annexation”, being based on brute force applied by the occupying Power, would not have burdened the territories with any encumbrances which may have been incurred during the occupation.

The Chairman said that the Committee would report accordingly to the Commission. Count De Leusse added that the French Government were in the same position as the Belgian Government in this matter and, after having ventilated it in the Commission, were quite satisfied that the issue of Article 2(d) of the Declaration was all that was necessary to be done on the part of the Four Powers collectively.

Q. As regards the list of treaties suggested for revival (Question No. VI) could not Germany be obliged to comply provisionally with all pre-war treaty obligations until the countries concerned notified the Control Council that they wished any of them to cease to have effect? Some of the interested Governments had been separated from their archives since 1940 and could not readily compile the suggested list of Treaty instruments.

A. The Committee cannot add to its reply, but would explain that it had no intention of seeking to exercise any judgment in the selection of treaties for revival but merely to inform itself as to the scope of the problem so as to advise the Commission how best to answer the question put by the representatives present.

After an exchange of compliments, the representatives of the three Governments withdrew.

London , 11 June, 1945.

39. Transmitted by the Ambassador in the “United Kingdom in his despatch 23644, June 13, 1945; received June 16.
40. Georges Kaekenbeeck, Legal Adviser to the Belgian Foreign Office in London.
41. Luxembourg Minister in London.
42. Not printed; for a summary of the issues raised by the Belgian, Luxembourg, and Netherlands Governments in their memorandum, see the Report of the Allied Consultation Committee, P12/60/45, paragraphs 21–28, pp. 191, 195–197.
43. For the text of the communiqué issued at the end of the Crimea Conference (issued to the press on February 12, 1945), see Conferences at Malta and Yalta, p. 968.