Foreign Relations of the United States, 1947, Council of Foreign Ministers; Germany and Austria, Volume II

CFM Files: Lot M–88: Box 58

Report of the Coordinating Committee to the Council of Foreign Ministers ²

secret
CFM (47) (M) 121

Moscow, April 11, 1947.

Form and Scope of Provisional Political Oranization of Germany

a. central administrative agencies (paragraph a—cfm/47/m/101)

1. All Delegations agree to accept the following text:—

(a) “The Control Council is directed to institute in the shortest possible time Central Administrative Agencies dealing with those matters requiring central decision in the fields laid down in the Potsdam Agreement as well as for food and agriculture.”

(b) “Central Administrative Agencies will be under the supervision and direction of the appropriate quadripartite bodies of the Allied Control Authority. When the German Provisional Government has been established new arrangements for control are envisaged.”

2. The U.S., U.K. and French Delegations accept the following text:—

“Each Department will be under the management of a German Executive Committee, consisting of representatives of the different Laender, with a chairman holding executive authority [to implement] the decisions of the majority of the Committee”.

The U.S. and U.K. Delegations prefer the deletion of the words shown in brackets and the substitution therefor of the words “subject to”.

The position of the Soviet Delegation on the question of the management of Central Departments is defined in Part III, paragraph 9(IV) of the decisions of the Berlin Conference. So far as questions of detail are concerned they should be referred for consideration of the Control Council.

3. The French Delegation proposes the following text:—

“The above provisions do not apply to the Saar territory and do not prejudice the future regime of the Ruhr and the Rhineland.”

The U.K. Delegation can accept this proposal in so far as the Saar is concerned but reserves its position with regard to the Ruhr and the Rhineland.

4. All Delegations have accepted the following text:—

“The Allied Control Council will issue directives necessary for the guidance of these agencies including directives specifying the administrative functions to be allocated to Central Administrative Agencies and those to be allocated to the authorities of the Laender.

The Central Administrative Agencies shall issue in their respective fields instructions and directives to the competent authorities in the Laender.”

5. The U.S., U.K., and French Delegations agree that the relationship between the Zone Commanders and the Central Administrative Agencies should be defined as follows:

“The Zone Commanders shall have the right to be informed as to the activities of the Central Administrative Agencies in their respective zones. They shall however issue no instructions to them save

(a) as agents of the Control Council,

(b) in the event of a threat to the security of the occupation forces”.

6. The Soviet Delegation proposes that the relationship between the Zone Commanders and the Central Administrative Agencies be defined as follows:—

“The Zone Commanders, each in his own zone, being guided by the necessity for ensuring the fulfilment by Germany of her obligations to the Allies, the maintenance of the security of the occupation forces and the observance of the instructions of the Control Council in accordance with the policy of the Four Powers with respect to Germany, shall exercise general supervision and control of the activities of the Central Administrative Agencies on the basic questions.

“In cases where the directives of the Central Administration run counter to the directives and instructions of the Control Council, the Zone Commanders, after informing the Control Council, shall have the right to suspend the execution of these directives, and the Control Council will make the final decision on the matter involved.”

7. The U.S. and U.K. Delegations believe that the relationship between the Control Council and the Central Administrative Agencies should be limited by the following definition:—

“In the exercise of its authority the Control Council shall refrain from direct operation or detailed supervision of the Central Administrative Agencies.”³

8. The U.S. and U.K. Delegations also believe that the functions of the Central Administrative Agencies should be understood as follows:—

“The functions of these executive agencies shall extend over the whole of Germany: their agents and any Allied supervisory staff shall be free to travel throughout Germany. It should be brought home to the German people that while these agencies will operate under the policy direction of the Control Council they will have full executive responsibility for the management of the economy of Germany.”⁴

b. establishment of a german advisory council (paragraph b—cfm/47/m/101)

1. Date of the Establishment of the Council

All Delegations agree that a German Advisory Council will be established within three months of the creation of German Central Administrative Agencies.

The agreement of the French Delegation to this text is conditional upon the final determination of the frontiers of Germany having been settled by that date.

2. Composition of the Council

U.K., U.S. and French Delegations propose the following:

The German advisory Council shall consist of three representatives of each Land chosen by the Landtag so as to represent as nearly as possible the division of democratic political opinion in that Land.

The Advisory Council [will] consult the political parties and the trade unions and may consult any other organisations representative of German public opinion existing in any part of Germany.

The U.S. and French Delegations prefer the deletion of the word “will” and the substitution of the word “may”.

The U.K., U.S. and French Delegations have assumed that if a Landtag should choose representatives on a basis which did not represent the division of political opinion in the Land, the Control Council and the Zone Commander would take corrective action.

The Soviet Delegation propose the following text:—

“The German Advisory Council should consist of an equal number of representatives of democratic parties and of the Laender, and also of representatives of the free trade unions and other large anti-Nazi organisations.[”]

3. The Functions of the Council

All Delegations are agreed that “the German Advisory Council shall advise the Control Council on the general aspects of the work of the Central Administrative Agencies. This Advisory Council will also have as its task to work out within the framework of general principles laid down by the Control Council the details of a provisional constitution. The principles referred to will conform to such directives on the subject as may be issued by the Council of Foreign Ministers.”

The United States Delegation makes the following reservation⁵ to this and subsequent parts of this report. The U.S. Delegation has agreed to the preparation of a provisional constitution on the understanding that it shall be general in nature and shall contain no more than the minimum required to operate the provisional government for the short time needed for the preparation of a permanent constitution. In its view, such a provisional “constitution” could well take the form of a charter or directive from the Control Council, leaving the development of a detailed permanent constitution to the deliberative processes of an elected constitutional assembly and to final ratification by the people. Thus, a stable permanent government on an elected basis could be established within a period of one year from the establishment of the provisional government.⁶

The Soviet Delegation in agreeing with paragraph 3 considers that the Control Council will define a more concrete form and procedure of consultation on the part of the Advisory Council.

c. establishment of provisional government. (paragraph d—cfm/47/m/101)

The Committee was unable to reach agreement on the proposals submitted by the United Kingdom Delegation at the 22nd Meeting of the Council of Foreign Ministers.

The main issue remains whether elections to the provisional government are desirable or not.

The position of the Delegations is as follows:—

U.S. Position

The U.S. Delegation does not believe that elections to the provisional government are necessary. See the U.S. reservation set forth in paragraph B(3) above.

Soviet–U.K. Position

The provisional constitution and any recommendations of the advisory body on this question shall be submitted to the Control Council for its approval and in accordance with the provisional constitution, as approved by the Control Council, elections to the German Parliament shall be held and a provisional government formed to operate the provisional constitution.

French Position

The provisional constitution and all recommendations on this question made by the consultative council will be submitted for the approval of the Control Council. When the provisional constitution has been approved by the Control Council, parliamentary institutions will be instituted and a provisional government will be established on the basis of the provisions of this constitution.

d. provisional government (paragraph e—cfm/47/m/101)

During the discussion of this subject it became apparent that there were two separate issues involved. The first was the question of the functions of the provisional government and the second the question of the relationship between the provisional government and the Control Council. In so far as the delegates expressed opinions on these subjects, they are set forth below:—

U.K.–U.S. Position

The U.K.–U.S. Delegations propose the following text:—

“The provisional central government, when established, shall:—

(i) exercise, subject to the control of the Control Council, legislative powers in the field assigned to it;

(ii) supervise the execution of any such legislation by the appropriate authority and of any instructions of the Control Council in the field for which the provisional central government is competent;

(iii) initiate the processes of framing a permanent democratic constitution.”

They consider that the nature and degree of the control referred to in sub-paragraph (i) above, remains to be settled.

French Position

The provisional government shall assume the functions assigned to it by the constitution under the control of the Control Council, without prejudice to the powers reserved in certain matters to the Control Council and to the general authority assumed by the four powers in the declaration of surrender of June 5, 1945.

Soviet Position

1. The provisional German government will assume the powers of the Central Administrative Agencies.

2. The provisional government will be charged with functions defined in the provisional all-German constitution.

3. The provisional German government will be charged as its basic tasks with the eradication of the remnants of German militarism and fascism, the implementation of comprehensive democratization of Germany and the carrying out of measures designed to rehabilitate German economy, and also the unconditional fulfilment of Germany’s obligations to the Allied States, as well as with the preparation of draft of a permanent German constitution, which shall be adopted by the German people and on the basis of which a permanent German government will be formed.

4. The provisional German government will act under the control of the Control Council which shall give directives to the German government on basic questions of its activity.

e. the division of powers between the provisional central government and the laender governments (see paragraph f of cfm/47/m/105 revised)

1. The basic principle of the division

The Coordinating Committee was unable to reach unanimous agreement on this question. The U.S., U.K. and French Delegations accepted the following text:

“All powers shall be vested in the Laender except such as are expressly delegated to the Central Government.”

The Soviet Delegation considers that when dividing the functions between the Central German and the Laender Governments it is necessary to proceed from the liquidation of the Hitlerite centralization of State administration which destroyed the Landtags and the autonomous administration of the Laender so that the decentralized administration that existed prior to the advent of the Nazi regime shall be reestablished, with the revival of the Landtags and of two all-German Chambers.

The Soviet Delegation consider that such a provisional German Government must be established that, while guaranteeing Germany’s political and economic unity, it can at the same time assume responsibility for fulfilling Germany’s obligations to the Allied States.

The French Delegation also considers that in addition to the administration of subjects which come within their own competence, the Laender should be exclusively responsible for the administration within their respective territories of federal legislation and for the organization in these territories of the recruiting and operation of the public services functioning under federal direction.

The American Delegation believes that the question of the division of powers between the Laender and a permanent Central Government should be left to a constitutional convention elected by the German people according to electoral laws adopted by the several Laender: the action of this constitutional convention will be subject, of course, to the approval of the Allied Control Council, and to ratification by the German people not later than one year after the establishment of the provisional government. If this is to be a democratic constitution, only the most general instructions should be imposed upon its framers. If we write the constitution for the German people, that constitution will not have the popular support necessary to the stability of any constitutional government. We should agree here to no more than the general requirement that such powers as police, internal security, culture, education and religious affairs shall not be delegated to the Central Government.

The remark of the Soviet Delegation regarding the last part of the above statement of the U.S. Delegation: The Soviet Delegation considers that the Central German Government cannot remove from itself the responsibility to the Allied Powers for guaranteeing State security in Germany, but that the Laender Governments should also have their powers in matters of State security on the basis of laws and directives of the Central Government, and the executive guidance of the work of the police should be in the hands of the Laender Governments.

2. Powers of the Central Government

The Soviet, United Kingdom, United States and French Delegations agree that: The Central government shall be competent to adopt legislative and executive measures in order to ensure the unity necessary in the following fields:

a. To ensure the political unity necessary:

(1) The Soviet, United States and United Kingdom position.

The Provisional German Government shall, on German territory, have legislative and executive powers on matters of the fulfilment by a Central Government of its obligations to the Allies, foreign policy, conclusion and fulfilment of international treaties, citizenship, naturalization, emigration and immigration, extradition of criminals.

Reservation of the Soviet Delegation.

The Soviet Delegation considers that the provisional Central German Government should also have powers on matters of state security, with executive authority over the police forces resting with the Laender Governments.

In this connection, the U.K. Delegation wishes to stress that the police forces should be decentralized and that the central government should hold only restricted and clearly specified responsibilities of coordination in the field of criminal investigation.

The French Delegation considers that there should be no federal police. A certain coordination on technical lines may appear necessary as regarding criminal research essentially limited to the establishment and maintenance of a central criminal registrar, without implying the creation of any federal police.

(2) French Position.

General conditions of naturalisation for foreigners, subject to the principle that every German possesses citizenship in one of the German states and must comply with the necessary conditions in this respect:

Immigration, emigration and extradition of criminals.

Foreign affairs and implementation of treaties in so far as these questions come under the competence of the Central Government. The States shall have the right to negotiate and conclude international agreements with foreign powers in matters which come under their competence (for instance, frontier zone agreements, local trade, technical and cultural agreements) and to exchange diplomatic representatives.

b. To ensure the legal unity necessary:

The French, United States, Soviet and United Kingdom Delegations consider that the Council of Foreign Ministers should define the extent to which the Central German Government should be responsible for ensuring legal unity. They have therefore accepted the following text: fundamental principles of criminal, civil and commercial law; copyrights, patents and trademarks; negotiable instruments, bills of lading and other document of title of goods.

c. To ensure the economic unity necessary:

(1) The Soviet, French, United States and United Kingdom Delegations have agreed to place within the competence of the Central Government, customs, foreign trade, import and export control, and weights and measures.

(2) The United States, Soviet and United Kingdom Delegations also have agreed to place within the competence of the Central Government control of certain road and water communications of national importance and of all rail communications and post and telegraph.

(3) (a) The United States, Soviet and United Kingdom Delegations are further agreed to reserve to the Central Government the control of the supply of food, the distribution of food and raw materials in short supply, the planning of industry and the control of labor, wages and prices.

(b) The United States and United Kingdom Delegations, however, while agreeing that central control of these questions is necessary under the acute economic conditions at present existing in Germany, desires to see the end of these types of control at a later date. They are therefore opposed to the inclusion in the German constitution of provision for the permanent retention by the central government of these controls.

(4) French position

(a) The French Delegation states that the powers which would be attributed to the federal authority regarding the elaboration of common measures for transport and for the federal coordination of post and telegraph are enumerated in Document CFM/47/M/41, Chapter 6, Point A, Paragraph 5 for transportation, and Paragraph 6 for post and telegraph.

(b) The French Delegation considers that the present acute economic difficulties in Germany make it unavoidable that certain powers in the economic field should be exercised by central governmental machinery under the authority or the supervision of the Control Council. These powers refer particularly to the supply of food, the distribution of food, coal and power and essential raw materials, the planning of industry and the control of wages and prices. The Control Council shall decide in due course by what German bodies these powers shall be exercised if at all.

d. To ensure the financial unity necessary:

(1) The Soviet, United States and the United Kingdom Delegations have agreed to the following text: The issue of currency and coinage; certain powers for the coordination of banking; the national public debt; certain powers of taxation to be agreed; foreign exchange control.

(2) The French Delegation proposes the following text: debt of the federal state; certain powers of taxation to be agreed; foreign exchange control. Questions relating to currency and the banking system should rest with a central banking commission consisting of representatives of the central banks of the Laender.

(3) The Soviet, French and United Kingdom Delegations consider it necessary that the question of a budget for common purposes should also be included within the competence of the Central Government.

e. General Reservation of the French Delegation.

The French Delegation states that the powers stated as being within the competence of a Central Government in the preceding paragraphs may not in fact be attributed to this Government in their entirety by the provisional Constitution. Their detailed enumeration in this statement represents only a definition of the maximum powers which the Constitution may eventually give the Central Government.

f. General Reservation of the United States Delegation.

The agreement by the U.S. Delegation to the definition of the powers of a Provisional Central Government in the preceding paragraphs is subject to the understanding that the constitution of a Provisional Government will come before the Allied Control Council for review, and to the reservation that such a constitution, when viewed as a whole, shall not contravene the provision of the Potsdam Agreement with respect to decentralization and the development of local responsibility.

In addition, the functions of police, internal security, culture, education and religious affairs shall not be delegated to a Central Government, and an independent judiciary shall be provided to safeguard the integrity of the Laender and the basic rights of the individual. The powers of taxation assigned to the Provisional Central Government shall not be such as to impair the authority and means of the Laender to raise appropriate revenues.

3. Powers of the “Laender” Governments

a. Soviet Position

The Governments of the Laender shall enjoy in their respective territories and in the conditions normal to an autonomous government, legislative and executive powers in the following questions:

(1) Administration and territorial divisions: Administrative management of the Laender, public security in conformity with the laws and directives of the national German government; the judicial system and court procedure; criminal and civil law on the basis of the national German legislation.

(2) Public Education and Cultural Development, Public health, the regulation of conditions of work; public and social insurance; public relief;

(3) Internal commerce; budget; local industry and transportation; mines, water resources and agriculture.

b. United States, United Kingdom and French Position

All powers not specifically delegated to the Central Government are vested in the Laender.

c. Soviet Delegation feels it necessary to retain paragraph 3 of this document taking into account the experience of the Weimar Constitution, particularly articles 6, 7 and 12.

2. At its 19th Meeting, April 2 (see telegram 1163, Delsec 1382, April 2, from Moscow, p. 304), the Council of Foreign Ministers agreed to instruct the Coordinating Committee to submit draft directives on the question of the political organization of Germany. The Coordinating Committee’s Report was circulated to the Council in two documents, CFM(47) (M)101, April 4, and CFM(47) (M)105 (Revised), April 8, neither printed. These were considered by the Council at its 21st, 22nd, and 23rd Meetings, April 5, 7, and 8, respectively (see telegrams 1211, Delsec 1394, April 5; 1236, Delsec 1398, April 8; and 1263, Delsec 1405, April 8, from Moscow, pp. 311, 313, and 317). The Council referred the Report back to the Coordinating Committee for further consideration and redrafting. The Committee’s revised Report, printed here, was discussed by the Council at its 26th Meeting, April 11 and its 27th Meeting, April 12 (see telegrams 1320, Delsec 1416, April 11 and 1333, Delsec 1418, April 12, from Moscow, pp. 325 and 330). Changes in this Report adopted by the Council are indicated in the footnotes that follow. In concluding its consideration of this Report at their 27th Meeting, the Council agreed to refer the whole Report to the Deputies for Germany for them to consider and to report to the next session of the Council.

   This Report was discussed by the Deputies for Germany during their meetings in London, November 6–22, 1947; see the United States Daily Journal of Meetings of the Deputies, pp. 703–712. The Report, virtually unchanged, was reissued by the Deputies for Germany as document CFM (D) (L) (47) (G) 80, November 13, 1947. As reissued by the Deputies, this Report began with the following statement:

   “general reservation on the document as a whole

   All Delegations agree that any decision on the political organisation of Germany is conditional upon the prior establishment of German economic unity.”

3. The United States and United Kingdom Delegations agreed to withdraw this paragraph.
4. The United States and United Kingdom Delegations agreed to withdraw the last sentence of this paragraph.
5. The United States Delegation corrected the word “reservation” to read “statement”.
6. The United States Delegation deleted the last two sentences of this paragraph.