Foreign Relations of the United States, 1948, Germany and Austria, Volume II

CFM Files: Lot M–88: Box 121: File—Occupation Statute

Note by the Secretariat of the Tripartite Committee on the Occupation Statute

secret

[Frankfurt,] 25 October 1948.

TOS/P(48)1

1. At their meeting held on 16 October 1948 in Frankfurt, the Military Governors instructed the Tripartite Committee on the Occupation Statute to submit prior to their next meeting a report setting forth specific disagreements encountered so far in the joint draft of the Occupation Statute.¹

2. Pursuant to the above, there is circulated herewith for the consideration of the Military Governors at their meeting to be held on 30 October 1948:

a. A list of “Disagreements on Matters of Principle in the Draft of the Occupation Statute dated 25 October 1948” (Annex “A” to TOS/P(48)1).

b. Draft joint text of the Occupation Statute (Annex “B” to TOS/P(48)1).

• A. R. Forest
• Moira Seale
• M. Vinatier

Annex “A”

Document Prepared by the Tripartite Committee on the Occupation Statute
secret

25 October 1948.

Disagreements on Matters of Principle in the Draft of the Occupation Statute Dated 25 October 1948

Proclamation

Form of Statute (Preamble)

The French and US members are agreed that the Occupation Statute should be promulgated in the form of a joint proclamation.

The British member has so far reserved his position on this question as he prefers separate identical proclamations.

article i

No disagreements.

article ii

powers reserved to the occupation authorities

Expellees & Refugees.(para 2 (h))

The French and US members wish to reserve to the Occupation Authorities control of expellees and refugees while the UK member wishes to leave control over refugees and expellees to German jurisdiction.

Access to Information (para 2 (j))

The French and US members reserve to the Occupation Authorities the right to require reports and have access to all sources of information. The British member would require the German authorities to furnish only such information and statistics as may be needed by the Occupation Authorities in the exercise of their powers retained in Article II.

article iii

No disagreements.

article iv

No disagreements.

article v

judicial powers

Jurisdiction over nationals of Occupying Powers and their dependents (para 11 (iv))

The US and French members desire exclusion from German jurisdiction of all offenses committed by nationals of an Occupying Power or their dependents. The UK member opposes this exclusion.

Jurisdiction over Displaced Persons (para 11, (d) (v))

The US and French members desire the exclusion from German jurisdiction of all offenses committed by Displaced Persons. The UK member opposes this exclusion.

article vi

No disagreements.

article vii

requirements of the occupation

Control of Occupation Cost expenditures (para 18)

While the French and UK members desire to retain flexible control of occupation cost expenditures, the US position calls only for a more definite control and limitation.

The Fr and UK members also desire to ensure payments of mandatory expenditures which are not proper occupation costs.

Limitations of Occupation Requirements (para’s 19 & 20)

The French and UK members are not prepared to lay down in this Statute specific limitations with regard to personnel, utilities and furniture, which the US feel to be essential, although they believe that such limitations shall be taken into account when the Occupation Costs are drawn up.

article viii

interpretation of statute

Supreme Court (para 21 to 25)

The French position calls for a Council with advisory functions and not for a Supreme Court of appeal.

The US position calls for a Supreme Court to which any German Government may appeal actions taken by Occupation Authorities; its decisions to be binding on both the Military Governors and the German governments.

The UK position is the same as the US position but calls for a different composition of the Court.

article ix

No disagreements.

Annex “B”

Draft Joint Text of the Occupation Statute, Prepared by the Tripartite Committee on the Occupation Statute
secret

25 October 1948.

Proclamation

To the people of the British, French and United States Zones of Germany,

Whereas the Military Governors and Commanders-in-Chief of the British, French and United States Zones of Occupation, acting on the instructions of their respective Governments, are exercising supreme authority each in his own Zone of Occupation, and

Whereas the Military Governors and Commanders-in-Chief of the British, French and United States Zones have agreed that, in spite of continuance of the state of war between the United Nations and Germany, pending quadripartite agreement on the unification of Germany, it is expedient for the better administration of their Zones to establish provisionally a constitutional German government, and Whereas without prejudicing the provisions of the peace treaty, they have agreed to define on the basis of the present temporary organization of Germany a common policy as to their basic relations with the German people in their Zones, and

Whereas the basic purposes of the Occupation are a just and lasting peace based on the disarmament, demilitarization and democratization of Germany, and Germany’s integration with the peace-loving democratic forces of Europe and the world,

We, General Brian Hubert Robertson , Military Governor and Commander-in-Chief of the British Zone of Germany,

General Pierre Koenig , Military Governor and Commander-in-Chief of the French Zone of Germany,

General Lucius D. Clay , Military Governor and Commander-in-Chief of the United States Zone of Germany do hereby jointly proclaim as follows:^*

article i

powers of the federal state and of the participating laender

1. The Federal state and the participating Laender shall exercise full legislative, executive and judicial powers in accordance with the Basic Law (Provisional Constitution) and with their respective constitutions subject only to the limitations imposed in this Statute.

article ii

powers reserved to the occupation authorities

2. The Occupation Authorities reserve to themselves those powers necessary to enable them to:

(a) Conduct or direct Germany’s foreign relations, until such time as she may be permitted unrestricted foreign relations;

(b) Exercise the minimum control over German foreign trade and exchange and over internal policies and measures which could adversely affect them, necessary to ensure the respect for obligations entered into by the Occupation Authorities in regard to Germany; and the proper use of funds made available to Germany;

(c) Exercise such controls as have been or may be agreed upon by the Occupation Authorities, their Governments or agents acting on their behalf as for example, regarding the International Authority for the Ruhr, reparations, level of industry, decartelization, disarmament and demilitarization, and certain aspects of scientific research; control of frontiers and the movement of persons in and out of Germany;

(d) Protect the prestige, ensure the security and guarantee the immunity from German governmental processes, of the Occupation Forces and the satisfaction of their requirements within defined limits agreed upon between the Military Governors; conduct operations deemed essential to the national security of their respective countries;

(e) Ensure the observance of this Statute and of the Federal and Laender constitutions which they have approved;

(f) Protect and restitute property belonging to other Governments or their nationals; protect and restitute the property of victims of Nazi persecution;

(g) Prevent any act or practice, (including acts or practices by private organizations or individuals), which:

(i) discriminates in any way whatsoever against nationals of other governments are compared with German nationals, or

(ii) is in any way inconsistent with the principles and objectives of the Havana Charter for an International Trade Organization and in particular with the principles of most favored nation and non-discrimination;

(h) [Supervise the assimilation of expellees and exercise control over the return of refugees, and over the protection, maintenance and repatriation and resettlement of displaced persons;]² (Fr/US)

(h) [Implement any agreement between the Occupation Authorities and the International Refugee Organization;] (UK)

(i) Ensure the control of all aspects of civil aviation and facilities therefor throughout the combined area;

(j) [Require reports from German authorities and have access to all sources of information;] (Fr/US)

(j) [Require the Federal State and the participating Laender to furnish any information and statistics which they may need for the exercise of the powers retained in this paragraph.] (UK)

article iii

legislative powers

3. The Federal State and the participating Laender shall have full authority to legislate on all matters within their competence and, under the reservations made below, their laws and regulations will come into force automatically 21 days after their official receipt by the Occupation Authorities, unless they have been disapproved by the Military Governors. The Military Governors will not disapprove such legislation unless it violates the provisions of the respective constitutions or of this Statute, or the legislation of the Occupation Authorities in force.

4. Land constitutions, amendments to the Federal constitution and to the constitutions of the participating Laender shall not come into force until they have received written approval of the Occupation Authorities.

5. The Occupation Authorities retain the right to legislate on matters referred to in Article II above and, except as may be necessary to implement the provisions of paragraph 16, Article VI, will in the future limit their legislation to these matters. Legislation in those fields which the Federal State and the participating Laender have been empowered to enact by the Occupation Authorities will not come into force until it has received the written approval by the Occupation Authorities.

6. In those matters where the Occupation Authorities have full authority to legislate they may repeal or modify any existing legislation of the former Reich or of a Land. In other matters, before repealing former German legislation found to be inconsistent with this Statute, the Occupation Authorities will consult with appropriate German authorities.

7. Legislation of the Occupation Authorities remains in force. The legislative texts and regulations pertaining thereto which refer to the powers reserved to the Occupation Authorities under Article II and which cannot be amended or repealed by the German authorities shall be harmonized and codified. Other texts shall remain in force until such time as they are amended by German legislation in accordance with paragraph 3 above. Those which are considered incompatible with this Statute will be expressly abrogated.

article iv

executive powers

8. The Federal Government and the governments of the participating Laender shall have full authority to exercise executive powers in all matters within their competence. The Occupation Authorities, however, reserve the right to take action themselves, or to direct such measures as may be required of German governments, in the fields reserved to the Occupation Authorities. In all other fields, action of the Occupation Authorities will be limited to observation and advice.

9. Action of the Occupation Authorities under the preceding paragraph includes the right to require the dismissal of any German holding public office or any German public servant who restricts the Occupation Authorities in the exercise of their powers as set forth in this Statute.

10. All decisions and directives issued in accordance with the powers reserved under this Statute will be transmitted to the head of the appropriate and competent level of German government.

article v

judicial powers

11. German courts shall exercise jurisdiction in all criminal cases except the following cases reserved to courts of the Occupation Authorities in this Article:

(a) Offenses falling under the jurisdiction of Military Courts according to the legislation of the Occupation Authority which established such courts;

(b) Offenses jeopardizing the security or prestige of the occupation;

(c) Offenses mentioned in legislative provisions of the Occupation Authorities if such legislation provides that German courts have no jurisdiction;

(d) Offenses committed:

(i) By members of the Forces and organizations of the Occupation Authorities or their dependents;

(ii) By non-German persons serving with, accredited to or under the sponsorship of the Forces and organizations of the Occupation Authorities or their dependents;

(iii) By German nationals employed by the Forces and organizations of the Occupation Authorities where the acts alleged against them were done in the course of or arose out of their duties;

(iv) [By nationals of an Occupying Power or their dependents.] (Fr/US)

(v) [By Displaced Persons.] (Fr/US)

(e) Offenses committed against any person mentioned in paragraph (d) above or his property, or against the property or safety of the Occupying Powers, their Forces, or any organization connected with the occupation, unless the exercise of jurisdiction is authorized by the Occupation Authorities.

12. German courts shall exercise jurisdiction in all civil cases, provided that unless expressly authorized by the Occupation Authorities they shall not exercise jurisdiction in cases in which any non-German person mentioned in para 11 (d) is plaintiff or defendant. Jurisdiction may be conferred by the Occupation Authorities upon their courts to try the cases so excluded from the jurisdiction of the German courts.

13. A German court shall not exercise jurisdiction in any case involving a challenge to the validity of the enactments or orders of the Control Council or of the Occupation Authorities which are in force.

14. The Occupation Authorities reserve the right:

(a) to try offenses against their legislation which the German authorities have neglected to prosecute;

(b) to set aside the decision of any German court in any criminal or civil case which violates the provisions of this Statute, or of any legislation enacted by them, or of any German legislation enacted at their instance pursuant to Article III of this Statute, or discriminates against any United Nation or national thereof, and to order a retrial of the case either in one of their courts or in a German Court.

15. Subject to the requirements of their security, the Occupation Authorities shall guarantee that all agencies of the occupation shall observe the rights of all persons under their jurisdiction to be protected against unreasonable search, seizure and arrest; to be admitted to bail as circumstances warrant; to communicate with relatives; to be represented by counsel, and to have a prompt and fair trial.

article vi

special powers and responsibilities of the occupation authorities

16. The Occupation Authorities will resume the exercise of their full powers in an emergency threatening security, and if necessary to secure compliance with the Federal Constitution and the Constitutions of the participating Laender or with this Statute. Before exercising these powers the Military Governors will formally advise the responsible German authorities of their decision and of the reason for it.

17. The Occupation Authorities will have a special responsibility to observe, advise and assist the Federal state and the participating Laender in regard to the democratization of political life, social relations and education. This shall not imply any restrictions of the legislative, executive and judicial competence accorded to them in those matters. Legislation in these fields shall be subject to the provisions of paragraph 3 of this Statute.

article vii

requirements of the occupation

18. [The powers of the Occupation Authorities under Article II include the power to require the Federal state and participating Laender to make such financial or other provision as may, in the opinion of the Occupation Authorities, be necessary for the discharge of the responsibilities thereby reserved to them. The Federal state and the participating Laender will be consulted regarding the procedure by which such requirements are to be satisfied.] (Fr/UK)

19. [In respect both of the requirements of the Occupation Forces (Occupation Costs) and of the other provisions required to be made under the preceding paragraph, the Occupation Authorities shall after consultation with the Federal Government and the governments of the participating Laender, establish in advance annual budget estimates of the expenditure involved. These estimates will be communicated to the governments affected and will not be exceeded except in accordance with supplementary estimates similarly established and communicated to those governments. In principle such supplementary estimates will not be presented in respect of Occupation Costs unless, in the course of the year, there are significant increases in prices or wages or in the size of the Occupation Forces required to be maintained in Germany.] (Fr/UK)

19. [After consultation with Federal Government and the governments of the participating Laender, the Occupation Authorities shall establish annually a budget for total Occupation Costs, which will be provided these governments in order to enable them to plan their budgets. In principle no increase in this established total shall be made except where substantial wage and price increases have occurred or where the Occupying Forces have been increased.] (US)

20. [Except as qualified in paragraph 16 above, requirements of the Occupation Forces will be limited by the following principles:

(a) No foodstuffs will be taken from the German economy except in exchange for comparable quantities procured from outside Germany;

(b) Consumption of coal and electricity and gas will be limited to fixed annual percentages of the total amounts available in the occupied areas;

(c) No new requisitions for furniture and other household goods will be issued. Any new requirements will be obtained from new production or from imports and not from individual owners; and

(d) The total number of Germans working for the Occupying Forces shall not exceed a figure agreed upon annually after consultation with the German authorities.] (US)

article viii

interpretation of the statute

21. [A Council, the task of which is to inform the Commanders-in-Chief on all questions arising from the application of this Statute, is instituted as Advisory Board to the Military Governors.

22. This Council is composed of jurists appointed respectively by the Military Governors and selected at the rate of one adviser by each Occupying Power.

23. The Council will give its advisory ruling on evidence which must be submitted to it in documentary form.] (Fr)

24. [Any German government on its own behalf, or on behalf of anyone of its citizens may appeal from any action taken by Occupation Authorities on the ground that the action is in conflict with the provisions of this Statute. Such appeals will be addressed to the appropriate Occupation Authorities according to such procedure as will be established, with ultimate appeal to a High Court. However, no appeal hereunder will have the effect of suspending the action taken.] (US/UK)

25. [This Court shall be composed of six jurists appointed by the Military Governors and two jurists to be appointed by the Federal Government. Its decisions will not be subject to reversal by the Military Governors and will be binding on the Occupation Authorities and the German governments.] (US)

25. [The Supreme Court will be composed of three representatives of the Occupation Authorities appointed by the Military Governors. Its decisions will be binding.] (UK)

article ix

amendments to the statute

26. No amendment to this Statute shall be made without prior notice to and consultation with the Federal and Land governments concerned.

1. For an extract from Ambassador Murphy’s record of the October 16 meeting of the Military Governors, see p. 614.
2. Position on joint declaration reserved by UK. [Footnote in the source text.]
2. Brackets throughout document appear in the source text.