Foreign Relations of the United States, 1946, Council of Foreign Ministers, Volume II

C.F.M. Files: Lot M–88: Box 2080: CFM Minutes

United States Delegation Minutes, Council of Foreign Ministers, Third Session, Fourth Informal Meeting, Waldorf-Astoria Hotel, New York, November 20, 1946, 4 p.m.

New York, November 20, 1946, 4 p.m.

secret

Present

	U.S.A.
	Secretary Byrnes (Chairman)
	Mr. Cohen
	Mr. Dunn
	Mr. Bohlen
U.S.S.R.		U.K.
Mr. Molotov		Mr. Bevin
Mr. Vyshinsky		Mr. Jebb
Mr. Gusev		Mr. Sterndale-Bennett
Mr. Pavlov		Interpreter
	France
	M. Couve de Murville
	M. Alphand
	M. Wolfrom
	Interpreter

Italian Treaty (Trieste)

The Secretary, who presided, called upon Mr. Jebb to report on the Deputies’ meeting of the day before.

Mr. Jebb read the report of the Deputies.⁵¹

The Secretary said the first unagreed point related to 8(b) and inquired whether there were any comments.

Mr. Molotov stated that the sentence in brackets had not been discussed by the Ministers and therefore had not been referred to the Deputies.

Mr. Jebb explained that the present draft was a combination of the French proposal and the U.S. amendment and that this sentence appeared in the original French proposal.

Mr. Molotov repeated that it had not been discussed and that the Deputies ought to confine themselves to what was referred to them.

M. Couve de Murville said that he understood the Deputies had been instructed to draw up a text on the basis of the discussion on Monday and that on this basis the French Delegation had presented on their own initiative the text which they felt comprised the sense of the discussion. He pointed out that since the Governor was to sign jointly treaties and agreements he should logically be kept currently informed of any negotiations. He said he did not feel the point was very important but was desirable.

Mr. Molotov repeated that it was a new question which had not been discussed by the Ministers. He felt it would involve the Governor in too many details and suggested that the words be left out.

Mr. Bevin said as he understood it from Mr. Jebb, the Soviet Delegation had made several amendments to the United States draft, which had not aroused objection. He did not understand why some amendments were acceptable for discussion while others were regarded as new questions.

The Secretary also pointed out that the Soviet Delegation had made a number of changes in wording which had not appeared in the original text. The French Delegation in suggesting this sentence had done nothing more than the Soviet Delegation had done. He said he did not think the question very important but he would like to hear reasons why the French Delegation had put in this sentence.

M. Couve de Murville said first of all on the question of principle, that when matters were sent to the Deputies it meant that there was no agreed text and that therefore the Deputies must be left some liberty of action in order to prepare a text. He said in effect they had reversed the positions from the original draft when the Government was to conduct foreign relations in consultation with the Governor. In the present draft the Council conducted foreign relations in consultation with the Governor. They felt that if the Governor was to sign and have the right of veto he should know in advance of negotiations in order to avoid a conflict arousing out of a fait accompli.

The Secretary agreed to this and said he thought it was only reasonable in order to avoid possible conflicts.

Mr. Molotov said he was not against this sentence in substance, but he felt it was a point of such small detail that it was not desirable to include it in a draft of principles. He said in actual fact the Governor would of course be kept informed but he thought it was a mistake to put any practical details which went without saying into the present document, and he thought they ought [to] waste no more time on such small details.

The Secretary said the United States would not insist on the inclusion of this sentence if the French Delegation was agreeable.

M. Couve de Murville agreed, and so did Mr. Bevin, and the sentence was omitted.

Turning to the next point (8-c) dealing with the appointment of the judiciary, The Secretary said that there were four different proposals and he wondered if they could not settle on an agreed text. He said in view of the British objection to mention of election of judges the United States was prepared to revise its suggestion to omit these words. The U.S. proposal would then read as follows:

“The appointment of the judiciary from among candidates proposed by the Council of Government or from among other persons after consultation with the Council of Government, provided that the Constitution may authorize a different procedure for filling judicial posts after the Statute has been in effect for five years.”

Mr. Molotov said that this draft would put off the election of judges for five years. He felt it would be acceptable if mention of a five-year period was dropped and it was left to the Constitution to decide the question of election. He thought it might be possible to revise the British formula, which was the shortest, by changing the words “appointment of judiciary” to the words “filling of judicial posts in accordance with conditions, etc.”

Mr. Bevin said he did not like the words “filling judicial posts” since that might mean no judges would be appointed. He said he thought the new U.S. proposal covered both points very well and he thought that the five-year period, as he had said before, would be desirable because of the existing tension in the territory.

The Secretary said what bothered him about the British and Russian suggestions was it was not clear how judges would be appointed pending the adoption of the Constitution, which might not be for some time judging from the long time it had taken the Ministers to reach this much agreement.

Mr. Molotov then suggested that the U.S. proposal be modified to eliminate any reference to a five-year period and to state in the last part, “unless the Constitution provides for a different manner for filling judicial posts.”

The Secretary said that we had been impressed by Mr. Bevin’s statement of the day before yesterday as to the danger of having elected judges in the early days of this experiment. Whereas Mr. Molotov thought five years was too long he would accept four, which would bring the election of judges to 1950.

Mr. Molotov said he did not think it would be convenient to put off elections for four years.

Mr. Bevin said he would like to reach agreement on this point but that he felt that in view of the conditions in the territory, the U.S. proposal was not unreasonable and a short period before judges could be elected was a just compromise and would do no harm.

Mr. Molotov suggested that the period might be shortened to two years and it be further provided that during this period judges be appointed by the Governor in agreement with the Council.

The Secretary suggested three years as a possible compromise but he felt that if the appointments had to be made by agreement between the Governor and the Council there was a possibility of a deadlock, with no judges being appointed.

Mr. Molotov said he would accept three years but that he thought Mr. Byrnes should make a concession and meet him on the suggestion of agreement with the Council. He felt there was little danger of conflict, and in any such event the Security Council could decide.

The Secretary said he really did not think that was acceptable since there would be a possibility of a deadlock and the Security Council was not the place to go into the question of the appointment of judges.

Mr. Bevin suggested that if the U.S. draft left out the specific reference to the election of judges and the five-year period was changed to three, would not that be acceptable?

Mr. Molotov said he could accept Mr. Byrnes’ latest proposal if the words “from among other persons” were omitted and the judges were selected from a list presented to the Governor by the Council. He said there was a difference in the case of judges than in the Director of Public Security.

The Secretary pointed out that this was identical to Mr. Molotov’s previous proposal providing for agreement between the Council and the Governor since if the Governor liked none of the candidates presented there would be no appointments.

Mr. Molotov said on further study he felt the French proposal was the best.

Mr. Couve de Murville said it is true that the French proposal was nearer the Soviet.

Mr. Bevin said he thought that Mr. Molotov had been prepared to accept the British modification of the U.S. proposal.

Mr. Molotov said he had no Russian text of this new proposal.

Mr. Couve de Murville said the French proposal gives to the Governor the right to confirm, which means the right not to confirm. In this sense the power of the Governor was analogous to that of the U.S. Senate.

The Secretary suggested that they pass that over and return to it.

The Secretary said on 8–bis there was a sentence in brackets which had not been agreed. He understood that this sentence had been put in for the sake of clarity, but, if, as he understood, they were all in agreement that the Governor in the last analysis had the right of appointment and dismissal of the Director of Public Security, the United States Delegation would not insist.

Mr. Molotov said he thought it was sufficiently clear from the text of the paragraph who would appoint, namely, the Governor, and he felt that this sentence was superfluous.

The Secretary then said that unless there was objection, the sentence would be excluded in view of the fact that the intention of the paragraph was clear.

The Secretary then turned to paragraph 9 and said that the only point was the words in brackets, “public order or respect for human rights,” to which the Soviet Delegation still had objection. He said he hoped that Mr. Molotov would accept these words which were contained in the original proposal recommended by the Conference.

Mr. Molotov said they would like to have a little time to work on the wording of this paragraph in order to avoid too, wide an interpretation of its provision.

Mr. Bevin said he wished to raise this one point for clarity; namely, that in 1(b) reference was made to the police and security services and that in order to bring paragraph 9 into conformity with this wording they should add the word “police” in paragraph 9 and thus harmonize the two paragraphs.

Mr. Molotov pointed out that paragraph 2 made no mention of the police and that paragraph 9 followed this wording. He said he thought paragraph 2 was more accurate than 1(b) since you could either speak of security services or police but not both together since they were one and the same thing. He pointed out that paragraph 2 refers to the Director of Public Security and inquired if that was not meant to include the police.

Mr. Bevin agreed that it did.

After some discussion it was agreed by all that the words “security services” included the police force and therefore no change was made in the present wording of paragraph 9.

Mr. Molotov, returning to the question of the judiciary, said he would be prepared to accept the U.S. draft if some provision is made for the election of at least a few judges without time limitation. He proposed in addition that they drop the words in brackets in paragraph 9. When Mr. Bevin objected, Mr. Molotov repeated he would like to have more time to think over improvements in the draft of paragraph 9.

Mr. Bevin then inquired if they could not reach agreement on the judiciary.

Mr. Molotov repeated that he would accept as long as the door was left open for the election, and inquired whether they could not combine the U.S. and French proposals; if this could be done he would accept a three-year limitation.

Mr. Bevin said the French proposal would be unacceptable since the Governor would be powerless.

The Secretary said Mr. Molotov had objected to a period of five years. He had reduced the time to four years and then to three. He would now accept two years.

Mr. Molotov said he would accept two years if the French proposal was accepted and he would then withdraw his suggestion that the judges be appointed by agreement between the Governor and the Council.

Mr. Bevin remarked that there had been a good deal of talk at Paris of a “rubber stamp” and that under the French proposal the Governor would in effect be a “rubber stamp.”

Mr. Molotov denied this, stating that the Governor would have the right of selection from a list presented to him.

Mr. Bevin remarked that under the French plan he would be limited to those presented by the Council, and if he did not approve of any on the list there would be no judges.

M. Couve de Murville said under his proposal the Governor could confirm a veto just as the U.S. Senate does, which no one had ever suggested was merely a “rubber stamp.” He pointed out that the right of confirmation would be independent of the procedure of selection, whether proposed by the Council or selected. In either case they would be subject to confirmation by the Governor.

The Secretary said that he was prepared to do what he was constantly doing; that is, accept the views of the Soviet Delegation and accept a combination of the first part of the U.S. proposal and the last part of the Soviet proposal. Paragraph 8(c) would then read:

“The appointment of the judiciary from among candidates proposed by the Council of Government or from among other persons after consultation with the Council of Government unless the Constitution provides for different manner for filling judicial posts.”

Mr. Molotov said that this was not a Soviet proposal.

The Secretary agreed but said the last part was their wording.

Mr. Molotov then said it was acceptable if the word “statute” was inserted so that it would read “statute or constitution.”

Mr. Bevin said that he thought this would be a mistake since this matter should be covered in the Constitution, and to include the word “statute” would merely mean that when they began to elaborate the Statute there would be another point of argument.

The Secretary said he felt that the matter of election of judges should be referred to the people who would adopt the Constitution and should not be in the Statute.

Mr. Molotov said he was afraid that the Constitution would be delayed. He inquired if Mr. Byrnes meant that the Constitution should be adopted by the National Assembly or approved by the Security Council.

The Secretary said they had not reached the subject of the Constitution yet, but in the drafts submitted at Paris there were three different proposals. The Soviet proposal had provided for adoption by the General Assembly by a two-thirds vote. The French proposal merely stated that it should be adopted by democratic means; whereas the U.K. and U.S. proposals said by “democratic means and approved by the Security Council.”

Mr. Molotov said if they could reach a common understanding that the Constitution was to be adopted by the Popular Assembly itself, then he thought that Mr. Byrnes’ latest proposal for the judiciary would be acceptable. He repeated that he was afraid of delay.

Mr. Bevin inquired who would hold up the Constitution.

Mr. Molotov answered the body called on to approve it.

Mr. Bevin said that he had understood that the Popular Assembly would adopt the Constitution but the Security Council should have the right to approve it in view of the responsibilities the Security Council was assuming.

Mr. Molotov inquired why the Constitution should be approved by the Security Council since it was a matter for the National Assembly and the people of the territory. If there was anything in the Constitution which conflicted with the Statute, the Security Council could then insist upon its amendment. He said the question was clear whether or not the Security Council should approve the Constitution.

Mr. Bevin pointed out that the Security Council would have to be convinced that the Constitution was not in conflict in any part with the Statute.

Mr. Molotov said in his view this was not quite the case. The Constitution would be adopted by the Popular Assembly and then if the Security Council found any part of it in conflict with the Statute it could demand the repeal of that part.

Mr. Bevin said that in his view since the Security Council approves the Statute and assumes certain responsibilities thereunder, it must have the right to see that the Constitution is in conformity with the Statute.

Mr. Molotov agreed but did not feel that the adoption should be held up by the Security Council approval.

Mr. Bevin said he agreed with that but that the Constitution must be shown to the Security Council and passed on before it goes into effect.

Mr. Molotov said he did not quite agree with that, that the Popular Assembly should adopt it and it should then go into effect. But if the Security Council then found any articles in conflict with the Statute it could ask for an amendment. There should, however, be no preliminary approval by the Security Council.

Mr. Bevin said he could not accept this since if part of the Constitution was in contradiction with the Statute it would already be in effect and thus the Statute would be in the process of violation.

Mr. Molotov said the Governor, who would be informed of the preparation of the Constitution, could inform the Security Council of any proposed articles which in his view were in conflict with the Statute.

The Secretary said he thought they had not really yet reached the Constitution and therefore it was difficult to go into it now.

Mr. Bevin said he thought that the exchange of views, however, was helpful.

M. Couve de Murville said that the French proposal does not envisage approval by the Security Council but that in this, as in other legislative matters, the Governor has the right of veto and the dispute would go to the Security Council.

Mr. Molotov agreed to this interpretation.

Mr. Bevin inquired if the Governor’s veto would stand pending settlement by the Security Council.

Mr. Molotov agreed that it would.

Mr. Bevin said that it had not been clear to him whether the Constitution fell into the same category as other legislation, namely, within the veto power of the Governor.

Mr. Molotov said that in his opinion it would.

The Secretary then inquired in the light of the discussion whether they could not agree on his latest proposal for the judiciary.

Mr. Molotov said in view of the discussion, which had not been in vain, he was prepared to accept Mr. Byrnes’ suggestion.

The Secretary then turned to the consideration of the Soviet amendments to Article 11.⁵² He said the first one related to 11(a) and constituted a Soviet redraft of the paragraph, which took the provisions of article 30 of the Free Port with the addition of the words, “drawn up by the Council of Foreign Ministers and approved by the Security Council,” while omitting the words, “controlling the Free Port of Trieste.”

He said the next amendment related to paragraph 11 (b) providing for the inclusion of the words, “with the exception of neighboring countries,” and that the Soviet Delegation had provided a new wording for paragraph 11(d).

Mr. Bevin inquired whether the Soviet Delegation accepted the second part of Article 30.⁵³

Mr. Molotov replied that they were only referring to Article 30 (a).

The Secretary pointed out that they were dealing with the Conference recommendations and that Article 30 of the Free Port draft had not been considered by the Conference but only by the Commission. He pointed out that in effect the Soviet amendment to 11(a) was the substitution of a new paragraph.

Mr. Molotov said the Soviet Delegation considered 11 (a) as adopted by the Conference too vague and not really a formula. He thought that Article 30 with the indicated changes might be adopted in its place.

M. Couve de Murville said that the Soviet amendment added only two things to the principle contained in their original proposal, namely, that the regime should be drawn up by the Council and approved by the Security Council and also that the Governor of the Free Territory should take all necessary steps to put the regime of the Free Port into effect. He said the Soviet redraft was acceptable to the French Delegation.

As there was no objection, Section 11(a) as amended by the Soviet Delegation was accepted.

The Secretary said that the Soviet amendments to 11 (d) should be considered in connection with the Soviet redraft of 11(b) since they were closely connected. He said he felt that these amendments were not acceptable since they were in his opinion incompatible with his idea of an international free port.

Mr. Molotov said that they must take into account the economic interests of the neighboring countries. Yugoslavia had more interest than Italy but since they did not wish to place Yugoslavia in a privileged position they had introduced the amendment to make free zones available to both Italy and Yugoslavia.

Mr. Bevin said he did not see how it could work, that the operation of the Port if it was to be successful required the maximum utilization of its capacity, but if certain berths or facilities were handed to one country or another this would impair the effectiveness of the Port and would be uneconomical.

Mr. Molotov said it was not our money involved and if Italy and Yugoslavia wished to pay for these zones this was their affair. He repeated that they must take into account the special interests of neighboring countries.

M. Couve de Murville said he felt the difficulty arose from the fact that the Soviet amendments envisaged the exclusive jurisdiction of these countries. He saw no fundamental objection to making parts of the port available to one or the other, but the difficulty arose from placing these facilities under foreign jurisdiction. He did not see how that was possible in a free port.

The Secretary said he thought that (c) and (d) were connected with the Soviet amendment to (b) and that indicated what the purpose of the amendments were. He mentioned the customs union and joint control of the railroads, etc. He said he did not know what “etc.” referred to, but judging from the examples they had been far reaching.

Mr. Molotov said he would agree to exclude the word “etc.” from their redraft of 11(d).

Mr. Bevin said he thought they should merely agree on the general lines of the Free Port and leave the administration to the competent local authorities. He said anyone who had had any experience with ports, and he had had a good deal, knew that to function properly a port had to be under one administration. If they could agree on general lines he would propose to leave the practical operation to the local authorities, who naturally would wish to have the Port a success and a profitable undertaking. He said he thought the French resolution adopted by the Conference really covered the subject.

The Secretary pointed out that the French proposal had been adopted by the Conference by 16 to 5 and that the two Soviet proposals embodied in their amendments had been rejected by the Conference by the same vote. Under the circumstances, he hoped the Soviet Delegation would agree to accept the recommendation of the Conference.

Mr. Molotov said he would like to recall Mr. DeGasperi’s first speech⁵⁴ in which he pointed out how difficult would be the situation of the Free Territory if it did not form part of a state. He felt that they should pay attention to this point. If the Free Territory was to function properly it must have economic support and close ties with either Yugoslavia or Italy. Economically the Territory had more links with Yugoslavia and in order to insure the smooth operation of its economic life, arrangements such as customs union and joint administration of railroads with Yugoslavia was necessary. He added that on August 10 De Gasperi had stated in his speech that there could be no confidence in the viability of the Free Territory if economically it was cut off from other countries. He said they should provide for a customs union, joint administration and free zones in order to place the economic life of Trieste on a sound basis. He pointed out that similar arrangements had been made by the League of Nations for Danzig and he did not see why the same could not be done in the case of Trieste.

The Secretary said that he thought they were most certainly in disagreement on this point and inquired whether there were further observations.

Mr. Molotov asked whether there were any other proposals.

Mr. Bevin said he thought that the French proposal adopted by the Conference was the correct solution and that it should be left to the local authorities to work out the administration of the Port.

The Secretary pointed out that the Conference had left no doubt as to its views on this subject and in (a) and (c) had gone positively on record against exclusive zones or special economic associations.

Mr. Molotov said nothing was said of the joint administration of railroads, which in his view was essential to the economic life of Trieste in view of its geographic location. The recommendations merely said that there should be no exclusive free zones under foreign jurisdiction but did not say there should be no free zones at all in Trieste. But the most important thing was to consider the economic situation of Trieste, and if they did not think of some means of helping the economy of the area it would be in a very difficult economic position isolated from its neighbors. It would be incorrect and dangerous to ignore this point.

Mr. Bevin said that at the Conference they had proposed the creation of an economic committee composed of the countries economically interested in the Free Port, which would include not only Italy and Yugoslavia but other countries as well. He felt that this was important if the Port was to be really international and based on international cooperation for the use of all. He said it could not be such a port or a success if one country was given a privileged position. He said he hoped that this British document on an international commission would be studied carefully by the Ministers before the next meeting.

Mr. Molotov said he thought the idea of an international commission was too complicated and it would be better to consider the interests of the neighbors.

Mr. Bevin said that the suggestion for an international commission could be modified but he thought the principle was correct.

Mr. Molotov repeated that he thought it was exceedingly complicated to set up an international commission.

The Secretary said he would have no objection to studying the principles together and added that as he saw no prospect of agreement today on this point they had best pass it over and adjourn the meeting.

It was agreed that they should meet tomorrow at 4:00 p.m.

51. The Report of the Deputies was subsequently circulated separately as document CFM(46) (NY)19, November 20, infra.
52. At this point, the Council began consideration of document CFM(46)(NY)15 Revised, November 17, p. 1185.
53. The reference here is presumably to article 30 of the comparative texts of the draft Statutes for Trieste as set forth in the Annex to the Report by the Sub-Commission on the Statute of the Free Territory of Trieste to the Political and Territorial Commission for Italy, C.P. (IT/P) (S/T) Doc. 6, Annex, September 30, 1946, vol. iv, p. 645.
54. The reference here appears to be to the speech delivered by Italian Prime Minister de Gasperi at the 11th Plenary Meeting of the Paris Peace Conference, August 10, 1946; for the verbatim record of that meeting, see vol. iii, p. 175.