862.414/4–1445
The Legal Adviser (Hackworth) to the Assistant Secretary of State (Holmes)
General Holmes: This office has not given a written opinion on the position of the Allied Governments following unconditional surrender. However, I think that the Allied Governments would have all the rights of a military occupant, plus such additional rights as may be provided for in the terms of surrender. This presupposes that there will be a signed instrument. I do not consider that the Allied Governments would have the rights and obligations “of a successor Government” under the terms of surrender. Such a situation would ordinarily result only from annexation or transfer of sovereignty.
Military occupation has the effect of suspending the exercise by the local government of customary sovereign rights, except to the extent that their exercise is permitted by the military occupant. His orders and decrees are supreme during the period of occupation.
The terms of surrender that have been prepared for Germany are sufficiently broad in scope to give the Allied Powers authority to take possession of German diplomatic and consular, establishments in neutral countries. But it remains to be seen whether there will be any authority in Germany willing or competent to subscribe to the terms of surrender. There is also the question as to whether neutral countries would, without explicit authorization from Germany, be willing to turn over such establishments so long as there is a prospect that there will eventually be a German Government with which they might be required to reckon.
I see no objection to the proposed telegram to SCAEF19 attached at the back of these papers.20