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

Vienna Legation Files–1947: 710 Treaty

Memorandum by the United States High Commissioner for Austria (Clark) to the Secretary of State

secret

[Moscow,] March 20, 1947.

Subject: Chief Issues Outstanding to Date on Austrian Treaty⁹⁶

political clauses

1. Signing or Adherence by Invited States

The issue is raised in paragraph 1 of the Preamble whether the invited States should be entitled to sign or to adhere to the Treaty.

US Position: The invited States should be entitled to sign while other United Nation States may adhere. On this basis the invited States should be named either in the Preamble or in a signatory clause at the end of the Treaty. If the invited States are not named in the Preamble, it should be clearly indicated there that the designation “Allied and Associated Powers” includes the invited States named at the conclusion of the Treaty as being entitled to sign.

UK Position: The invited States should be designated by name in the Preamble as signatory powers. The UK expressed the view on March 18 that the invited States should be given the right to comment on the terms of the Treaty as agreed to by the CFM.

French and Soviet Position: The signatory powers should consist only of the Four Powers and Austria.

Recommendation: The US Position should be upheld in order to obtain for the invited States a more significant part in connection with the Treaty, to accord them due recognition for their share in the war, and to associate them explicitly with the observance of the provisions of the Treaty.

2. Responsibility for Participation in the War

The issue whether Austria was responsible for participation in the war emerges in connection with paragraph 3 of the Preamble, which states “Austria cannot avoid certain [responsibility—responsibilities—consequences]⁹⁷ arising from participation in the war.”

US and UK Position: Although Germany made use of Austrian territory, manpower, and material resources in carrying on the war against the United Nations, Austria, having been annexed by force, was not a political entity at the time the war began and was never free to make a decision on the question of participation in the war. The present Austrian State should therefore not be charged with a responsibility on the basis of which Austria might be considered virtually an ex-enemy State subject to punitive treatment. The word “consequences” is the preferable alternative among the bracketed expressions in as much as it suggests that Austria will inevitably bear certain effects of the war without being held responsible for a decision to participate in the war.

Soviet Position: The word “responsibility” should be used in this clause. The Soviet Delegation refused at London and again at Moscow on March 18 to accept either “consequences” or “responsibilities”. As their attitude in this question indicates, the Soviets tend to regard Austria in the same category as ex-enemy States and accordingly consider that Austria bears a responsibility for participation in the war “on the side” of Germany.

French Position: The French prefer the word “responsibilities”, which they proposed, but are willing to accept “consequences”.

Recommendation: The US should continue to try to obtain adoption of “consequences” since it is acceptable to three of the Four Powers. While it may be necessary to reach a compromise on the word “responsibilities”, the US should agree to “responsibility” only as a last resort.

3. Preservation of Austrian Independence

The issue in Article 2 is whether there shall be included in the Treaty clauses requiring commitments on the part of both the signatory States and Austria herself to safeguard Austria’s independence and territorial integrity.

US Position: The US Delegation proposed a clause in the first paragraph of Article 2 by which the Allied and Associated Powers declare that they shall respect the independence and territorial integrity of Austria. The US joined with the French in working out a guarantee clause in the second paragraph which would require the Allied and Associated Powers to oppose any action that may threaten the political or economic independence or the territorial integrity of Austria, and in event of such threat to consult with one another and with the appropriate organs of the United Nations with regard to appropriate action. The US Delegation also proposed a clause in the third paragraph which would oblige Austria to acknowledge the external responsibilities attaching to the reestablishment of independence and to abstain from any act which will threaten her political or economic independence or her territorial integrity.

UK Position: The UK has felt that all three paragraphs are unnecessary because of the functions of the United Nations and the obligations assumed under the United Nations Charter to assure the independence and territorial integrity of all member States. The UK assumes that Austria will be a member of the United Nations shortly after the entry into force of this Treaty. At Moscow, the UK, however, proposed a clause for Paragraph 2 reading:

“In the event of a threat to the territorial integrity of Austria, the Allied and Associated Powers will after consulting together take action through the appropriate organs of the United Nations.”

In an effort to meet the views of the French, the UK Delegation are willing to insert in the above proposal after the word “Austria” the phrase “or failure to observe the provisions of Article 4”. The UK are prepared to accept paragraph 1 in order to obtain unanimity but regard the proposed paragraph 3 as unnecessary.

French Position: The French wish to neutralize Austria permanently and keep it from having close ties with any other country. An original French proposal would have obliged the signatory States to give “full assistance and support” if a threat to Austria’s independence arises. The French Delegation believe that the first paragraph is unnecessary but are willing to accept it in order to obtain unanimity; regard the new British proposal for the second paragraph as inadequate because of the omission of “political or economic independence” and because of its weaker obligation on the signatory powers; and accept the US proposal for the third paragraph.

Soviet Position: The entire Article is unnecessary, both in original and in revised form. The obligations assumed under the United Nations are greater than those which will be undertaken through this Article by Austria and other signatory States. If Austrian independence is threatened, Austria itself or any other signatory power could bring the matter before the Security Council and any measures taken to protect Austria would be taken in accordance with the United Nations Charter rather than the Treaty.

Recommendation: The deadlock over this issue appears hopeless. It is my personal opinion that the provisions in these paragraphs are not essential to the Treaty in view of the security functions of the United Nations and the obligations assumed under the United Nations Charter by the States signatory to the Austrian Treaty. The United States position in this question should therefore be abandoned, and it may be that a concession can be obtained at the same time from the Soviets with respect to another Article.

The Deputies agreed on March 20, to refer the following Article, in the form indicated below, to the Council of Foreign Ministers.

article 2

Preservation of Austria’s Independence

• [1. The Allied and Associated Powers declare that they shall respect the independence and territorial integrity of Austria as established under the present Treaty.(¹)]
• [2. The Allied and Associated Powers shall oppose any action, in any form whatsoever, that may threaten the political or economic independence or the territorial integrity of Austria, and in event of such threat will consult with one another and with the appropriate organs of the United Nations with regard to appropriate action.(²)]
• [In the event of any threat to the territorial integrity of Austria, the Allied and Associated Powers will after consulting together take action through the appropriate organs of the United Nations.(³)]
• [3. Austria on her part fully acknowledges the external responsibilities attaching to the reestablishment of national independence and undertakes to abstain from any act that will threaten her political or economic independence or her territorial integrity.(⁴)]

4. Prohibition of Pan German Propaganda

The issue developed in connection with the requirements laid on Austria in Article 4 for the purpose of preventing a future Anschluss.

Soviet Position: At the suggestion of the Soviet Delegation, the Article was amended by a bracketed phrase which would compel Austria to prevent the existence or activity of any organizations having as their aim propaganda in favor of union with Germany “as well as pan-German propaganda in any form whatsoever.” The Soviet Delegation have indicated that they attributed to the phrase “pan-German” a broader significance than is generally accepted in Western countries, applying it to cultural as well as political matters. Mr. Kisilev, for example, illustrated “pan-German” propaganda by calling attention to an article published at Linz in the US Zone of Austria which stated that Austria was the inheritor and beneficiary of the best in German culture.

U.S. Position: The US Delegation object strongly to the Soviet amendment in view of the experience of the US Commissioner for Austria with Soviet protests against freedom of speech and the press, and in view of the interpretation given to “pan-German” at London by the Soviet Delegation. If the phrase “pan-German propaganda” were accepted in this context it might provide a basis for interference in Austrian affairs and restrictions on the freedom of expression in Austria. US Delegation has advanced at Moscow a counter-proposal as follows:

“Austria further undertakes to prevent within her territory any act likely, directly or indirectly, to promote such union and shall prevent the existence, resurgence and activities of any organizations having as their aim political or economic union with Germany and pan-German propaganda in any form whatsoever in favor of Anschluss with Germany.”

UK Position: Same as the U.S.

French Position: The French believe that pan-German propaganda is dangerous in itself and therefore support the Soviet proposal.

Recommendation: The US must not accept the language of the Soviet proposal because of the danger that this might be considered acknowledgment of the sweeping scope given to the term “pan-German propaganda” by the Soviets in the discussions of the Austrian Treaty. The US should make no concession in this matter beyond the counterproposal indicated above.

5. The Austrian-Yugoslav Frontier

The issue in Article 5 is whether Austria shall have her pre-Anschluss boundaries or whether account shall be taken of the Yugoslav claim to an area comprising 1,273 square miles in southern Carinthia and 123 square miles in Styria. This claim was advanced in memoranda presented to the Deputies on January 22, 1947. The area claimed in Carinthia is considerably larger than the Klagenfurt plebiscite area of 1920.

US, UK and French Position: The US, UK and French Delegations have supported a clause establishing the frontiers of Austria as they existed on January 1, 1938. The Yugoslav claim is regarded as unjustified for the following reasons: (1) the pre-Anschluss boundary between Austria and Yugoslavia was determined on the basis of a free plebiscite in 1920 in the Klagenfurt area; (2) the census statistics of 1910 and 1934 indicate a predominantly German-speaking element in these areas; (3) the boundaries as determined in 1920 were generally regarded during the interwar period as fair and reasonable; (4) the adverse effect which the seizure of the claimed territory would have on Austrian chances for survival as an independent and democratic state.

Soviet Position: The Soviet Delegation have recommended at London and at Moscow that the Council of Foreign Ministers create a special committee to study the claim of Yugoslavia and to prepare appropriate recommendations. It is uncertain whether this action of the Soviets represents more than a gesture of support in behalf of a loyal ally or whether they will not finally abandon this position in favor of agreement with the other members of the Council.

Recommendation: The US must continue to oppose any revision of the 1937 frontier between Austria and Yugoslavia.

6. Naturalization and Residence of Germans in Austria

The issue is whether to include a clause such as Article 6 disqualifying all or certain categories of politically unreliable Germans from naturalization by Austria and permanent residence in Austria.

US Position: The US Delegation prefer to omit this Article, believing that the matter of Austrian nationality should be left for Austria to determine on the basis of existing law. But the US Delegation propose as a compromise to include provisions which would deny Austrian nationality to certain German nationals as undesirable individuals; which would annul the naturalization of such German nationals who may have been naturalized after March 1, 1933; and which would prevent the immigration into and permanent residence in Austria of such German nationals.

UK Position: The UK Delegation consider this Article unnecessary and wish to leave the matter for Austria to decide.

Soviet Position: The Soviet Delegation propose to deny naturalization and permanent residence in Austria to all German nationals, to annul the naturalization of all German nationals accomplished subsequent to March 1, 1933, and to prevent the immigration into or permanent residence in Austria of German nationals—with transference of domicile to Germany of all non-naturalized Germans and all Germans naturalized since March 1, 1933.

French Position: The French Delegation favor inclusion of Article 6 provided that its scope is limited to certain categories of German nationals.

Recommendation: The US should continue its opposition to the sweeping Soviet prohibition laid on all German nationals, and continue to advance a proposal for a limited prohibition—preferably to affect the category of German nationals “who have been classified as ‘major offenders’ or ‘offenders’ under Directive No. 38 of the Allied Control Council for Germany, or who have been classified as ‘implicated persons’ or ‘less implicated persons’ under the Austrian Law of June 24, 1946, as amended, and who have not been exonerated and rehabilitated acording to law.” This definition makes use of the accumulated experience of military administration in Germany and Austria, and is more realistic than the formalistic category of Germans “who have been members of the Nazi Party”.

7. The Use of Fascist Terminology

The issue whether to use “Fascist” or “Nazi” terminology in reference to prohibited persons, organizations and influences appears in Articles 9, 10, and 18.

US, UK and French Position: The US, UK and French Delegations wish to use only the word “Nazi” because of its special applicability to Austria during the period of National Socialist domination from 1938 to 1945. They believe, moreover, that it would be exceedingly difficult to ascertain which organizations and elements in pre-Anschluss and present-day Austria might be fairly and unquestionably recognized as Fascist. These Delegations are also concerned about the use made of the word “Fascist” by the Soviet press and radio, in which it appears to apply to any person or organization in opposition to Russian Communism. Upon the suggestion of the UK Delegation an attempt has been made to resolve this issue in Article 9 by a redraft of the Article on the basis of language in Section A, paragraph 3 (iii) of the Potsdam agreement, thereby avoiding use of the word “Fascist”. Such a revision has been approved by the US, UK, and French Delegations.

Soviet Position: The Soviet Delegation believe that the word “Nazi” is too limited in scope and that the broad generic term “Fascist” should be used to refer not only to German and Austrian National Socialism, but also to what the Soviets describe as Austrian Fascism. They apply the latter term to the administrations of Dollfuss and Schuschnigg and related political tendencies in Austria from 1933 to 1938. The Soviet Delegation have reserved their position as to the revised Article 9 pending consultation among themselves. If the Soviets accept this version, it remains uncertain, however, whether they have agreed to abandon “Fascist” terminology elsewhere in the Treaty.

Recommendation: The US should hold out for the exclusive use of the term “Nazi”. In the denazification legislation of both Germany and Austria there are very numerous references to “Nazi” and “National Socialist” and “National Socialism”. These are the terms which have always been used in Austria and Germany to characterize the Hitler movement, and they are the terms now regularly used. Nowhere in the German or Austrian Denazification Laws do the words “Fascist” or “Fascism” appear. When the Soviet Delegation describe Austrian Fascism, and it is personified in Dollfuss and Schuschnigg, they are thinking for purposes of present-day Austrian politics under the Austrian Peoples Party which the USSR looks upon with great disfavor because it is an anti-Communist and Western-oriented democratic political party.

8. Obligation to Enforce Legislation Approved by the Allied Commission for Austria

The Chief issue in Article 10 is whether Austria should be obliged strictly to enforce for an indefinite period the laws and orders promulgated by the Austrian Government since May 1, 1945 and approved by the Allied Commission for Austria.

The Soviet Position: The Soviet Delegation proposed that Austria should be subject to such an obligation. They had in mind legislation directed at the liquidation of the previous regime in Austria and the reestablishment of a democratic system. They were especially preoccupied with the Austrian Denazification law as amended, which they wish to keep in force without change even in matters of detail.

US, UK and French Position: The US, UK and French Delegations oppose a rigid imposition which would make impossible any future change in the legislation of the occupation period and propose a statement obliging Austria to give effect to “the principles contained in” the laws and orders promulgated by the Austrian Government and Parliament since May 1, 1945, and approved by the Allied Commission for Austria. The Austrian Government takes a view of this issue in accordance with the position of the US, UK and France. In an effort to find a more definite expression than “the principles contained in”, the US proposed on March 10 the substitution of the phrase “the program contained in”.

Recommendation: The US must hold out for the more flexible obligation on Austria represented by the US, UK and French proposal. If the Soviet proposal is accepted, this Article will more readily permit the Soviets to find pretexts for intervention in Austrian affairs for an indefinite period whenever they consider the letter of the law from the occupation period is not being observed.

9. War Criminals

The issue in Article 11 is whether to require Austria for an indefinite period to surrender to United Nations Governments upon their request and without presentation of satisfactory evidence persons designated as war criminals and collaborators by United Nations Governments.

US and UK Position: The US and UK Delegations have strongly supported a joint proposal requiring the presentation of evidence considered satisfactory by the Heads of Missions in Vienna before Austria should surrender requested persons charged as war criminals or collaborators. This proposal also limits the submission of requests to a period within 90 days after the coming into force of the Treaty and would not require Austria to produce witnesses for the trial of such persons.

Soviet and French Position: The Soviet and French Delegations oppose the above position with a joint proposal for incorporation in the Austrian Treaty the identical language of the War Crimes Article taken from the Italian and satellite treaties. This proposed clause would compel Austria to surrender alleged war criminals and collaborators upon designation by United Nation’s Governments and would impose no time limit on the duration of this obligation.

Recommendation: The US must continue to support the principles contained in the joint US–UK proposal. Acceptance of the Joint Soviet-French proposal would permit the Soviets to continue to demand surrender of claimed Soviet nationals who, in many cases, have been neither Soviet nationals nor collaborators. When the Allied Powers are no longer in occupation of Austria, the Austrian Government would probably become subject to irresistible pressure under the provisions of such an Article as advocated by the Soviet and French Delegations, and the protection of elementary human rights for many persons under Austrian jurisdiction would be endangered.

10. Period for Withdrawal of Allied Forces

The issue in Article 33 is whether the Allied Commission for Austria should terminate on the entry of the Treaty into force or at such time thereafter as the Allied Forces are withdrawn.

US Position: The Allied Commission should cease to operate on the effective date of the Treaty, while Allied troops would be withdrawn within a subsequent period of 90 days. If the Allied Commission continues to exist beyond the entry into force of the Treaty, Austria would not be a sovereign independent state as the Treaty provides. The problem of the relations of the Allied troops and the Austrian Government during the period of withdrawal might be dealt with by regulations drawn up by the Allied Commission before its cessation.

UK Position: The UK Delegation originally concurred in the US proposal for termination of the Allied Commission and proposed to accord to the Allied Forces during the period of withdrawal the immunities they enjoyed before the effective date of the Treaty. By an alternative suggestion of the UK, the Treaty would provide for the cessation of the Allied Commission upon the entry into force of the Treaty but a separate protocol, to be signed at the same time as the Treaty, would require the Four Powers to withdraw their forces within a subsequent period of 90 days. This proposal would presuppose that ratification and entry into force of the Treaty would not occur until this period of 90 days had expired. This proposal has the merit of accomplishing the same objective as the US and the Soviets desire without resort to regulations of questionable legality and without infringement on Austrian sovereignty.

French Position: The French Delegation agree with the US as to the date for the termination of the Allied Commission and propose to solve the problem of the status of Allied Forces during the period of withdrawal by provision in the Treaty for immunities and for the establishment of an Allied Liquidation Commission under the four Heads of Mission at Vienna.

Soviet Position: The Soviets believe that none of the foregoing proposals are sufficient and that the Allied Commission should not cease to operate until Allied Forces have been withdrawn not later than 90 days after the Treaty becomes effective. They would avoid the creation of a new legal situation by extending the Control Agreement of June 28, 1946 and the Agreement on the Zones of Occupation and the Administration of Vienna to the period of withdrawal. They have called attention especially to the possibility of applying Article 8 of the Control Agreement on Immunities at this time.

Recommendation: The US should support the new UK proposal for a separate protocol on withdrawal since it avoids the difficulties inherent in the US and Soviets’ positions and may more likely meet with Soviet approval than the French solution of this problem.

96. For the text of the Draft Treaty for the Re-Establishment of an Independent and Democratic Austria, see document CFM(47) (M)82, March 29, 1947, p. 516.
97. Brackets appear in the original.
1. US proposal. UK and French Delegations will accept this paragraph to obtain unanimity.
2. French and US proposal.
3. UK proposal.
4. US proposal which is supported by the French Delegation. UK and Soviet Delegations consider this paragraph unnecessary.