Foreign Relations of the United States, 1949, Council of Foreign Ministers; Germany and Austria, Volume III

London Embassy files: Lot 58F47: Box 1394: 350 Germany: Telegram

The Acting Secretary of State to the Embassy in the United Kingdom

secret

Washington, January 13, 1949—noon.

145. Section I. Following are your instructions re Intergovernmental meeting on Occupation Statute.

For your information, subsequent instructions may be sent you on related subjects, namely Fusion Agreement and Military Government Organization, which your govt may desire you discuss in Occupation Statute Meeting.

Instructions on the Occupation Statute.

Annex I of the Six Power London Report of June 2 [1], 1948,¹ outlined the new relationship to be established between the Allied Military authorities and the Provisional German Govt to be organized in accordance with Annex F. Pursuant to paragraph 5 of Annex I, the Military Governors transmitted to the 11 Ministers President of the three Western Zones, on July 2 [1], 1948, a statement of the broad principles for an Occupation Statute embodied in Annex I.² On July 10, the German Ministers President sent to the three Military Governors their comments on these basic principles.³

Since August the three Military Governments have been engaged in negotiations on the Draft Occupation Statute.⁴ Since the three Military Governors were not able to reach agreement on the draft Statute, it has not been possible to communicate it to the Constituent Assembly as guide to that body and in order to receive comments from the Constituent Assembly, as was provided for in Para. 5 of Annex I. The work of the Constituent Assembly has advanced to a stage where a further delay in communication of the draft Statute will impede the Constituent Assembly in its work of preparing a Constitution.⁵ Accordingly it is urgent that agreement between the three governments on the draft Statute be reached as soon as possible.

The report of the three Military Governors of December 17⁶ presents several points upon which the Military Governors were not able to reach agreement and attaches the draft Occupation Statute as otherwise agreed between them.

The British Government’s invitation to the Intergovernmental Meeting sets forth as purpose of the meeting “to settle the text of the Occupation Statute on a final basis.” It is not clear from the invitation whether it is the intention to propose that the Intergovernmental Meeting confine itself to an endeavor to settle merely the disagreed points or whether agreed provisions of the draft Occupation Statute submitted by the three Military Governors are to be reconsidered.

We have set forth first separate instructions to deal with all the disagreed points cited in the Military Governors Report, and have thereafter set down suggestions and alternative proposals with respect to previously agreed provisions of the draft Statute.

It is suggested that the Intergovernmental Meeting might well first consider the disagreed points, and thereafter turn to issues in connection with agreed provisions. You are authorized, however, to determine in your discretion your position with respect to the procedure of the Intergovernmental Meeting after ascertaining the views of the other delegations, but you should not agree to restrict the scope of the Intergovernmental Meeting merely to the disagreed points. It is anticipated that the other delegations will have points to raise regarding the agreed provisions and it is accordingly suggested that they be permitted to take the initiative in enlarging the scope of the conference beyond merely disagreed provisions.

The agreed paragraphs are the result of protracted negotiations. It is feared that a general detailed reconsideration of agreed provisions might have the effect of opening “Pandora’s Box” with the result that prolonged negotiations in London would be required. In the interest of a prompt conclusion of a draft text which can be shown to the Parliamentary Council at Bonn, your government is not instructing you to insist upon a general detailed re-examination of the Statute. Nevertheless, your government believes that the proposed revision of Art. IX, Paragraph 25 which provides for a review by the Occupying Powers of the terms of the Statute is so essential that you are instructed to introduce this proposal, even if the other delegations were to desire to restrict the scope of the conference merely to the disagreed points. Your government likewise attaches importance to the redraft of the preamble as well as several other points set down in the subsequent detailed instructions.

You should indicate at an appropriate juncture that the US Government will not regard the draft Occupation Statute which may be agreed at the London Meeting as an immutable text, but proposes that the Military Governors be instructed to adopt a sympathetic and flexible attitude to German views on the draft Statute which are to be obtained from the Parliamentary Council, in accordance with Part V of Annex I of the London Decisions. You should not hesitate to indicate that, as a result of the adverse German reaction to the agreement on the Ruhr Authority,⁷ this government attaches importance to an honest consideration of German views with respect to the Occupation Statute. You may point out that the provisional German Government is to function under a provisional Constitution within the framework of the Occupation Statute and that the people of the Western German Laender will be asked to accept the Provisional Constitution within the framework of this Occupation Statute. The success of the London Program presupposes popular German acceptance of the governmental regime to be established and a popular will to cooperate.

You should also state at a suitable occasion that the purpose of the Intergovernmental Meeting in the view of your government, is to resolve disagreed points in the draft prepared by the Military Governors and to prepare a draft text which may be transmitted to the Parliamentary Council at Bonn for guidance and comment, and that governmental approval is limited to the form of the draft to be transmitted at this stage to the Germans. The Occupation Statute is merely one element in the implementation of the program for Western Germany contained in the London Report of June 1, 1948.

Other elements in this program such as the Military Government organization, a Tripartite Fusion Agreement, the International Ruhr Authority, and the Provisional German Constitution are so inextricably interrelated that the US Govt must reserve its position with respect to the final approval of draft Occupation Statute until such time as it may review the Statute in its connection with other agreements and arrangements envisaged in the London Program.

Detailed instructions on the disagreed paragraphs of the draft Occupation Statute.⁸ Subsequent articles and paragraph references are also to this draft.

Article II, 2(b).

You are authorized to accept the British draft provided the words “the minimum” are inserted in the third line of the British proposal after the word “consider”, so that this clause will read “as they may consider the minimum necessary to ensure.” It is also suggested that the words “food and other supplies” be added after the word “funds” in (ii).

Annex I of the London report employed the term “minimum control,” and the same language was used in the statement of the Occupation Statute made by the Military Governors on July 1, 1948 to the 11 German Ministers President. The omission of the word “minimum” would be noted. The use of the phrase “minimum control” is not suggested (as in the US version in the present text) because there is nothing to indicate what is the minimum control necessary. Thus a question or fact would be involved in each case which might result in numerous actions being contested and having to be decided by the High Court. By the above proposal which you are instructed to put forward the decision as to what is the minimum necessary is left entirely to the Occupation Authorities.

The insertion of the words “food and other supplies” is designed to make the language more specific and should be self-explanatory.

It is recommended that in the initial discussion you reserve your position with respect to 2(b), pointing out that the present US version follows precisely the agreed language of Annex I of the London report and that you indicate a willingness to acquiesce in the British version as amended above at juncture in the discussions where the British may in return be ready to adapt their position to US views. In this connection you might bear in mind that the major difference between the US and the UK is with respect to Article II A.1 [2(i)] concerning displaced persons with respect to which your instructions give you no latitude whatsoever for negotiation.

If the US proposal on Article II, 2 (c) [(b)?] which inserts the phrase “claims against Germany” is accepted, you should propose the deletion of (iii) since the word “claims” would include claims for expenditures referred to in (iii).

Article II, 2(c).

You are instructed to propose the following alternative to the bracketed versions:

“To exercise such controls as have been or may be agreed upon by the Occupying Powers or Occupation Authorities in regard to the Ruhr, reparations, foreign interests in and claims against Germany and such further controls as have been or may be agreed in the following fields to insure international security:

I.	Prohibition and limitation of the level of industry.
II.	Decartelization.
III.	Deconcentration.
IV.	Disarmament.
V.	Demilitarization.
VI.	Certain aspects of scientific research and
VII.	Movement of persons entering or leaving Germany. [”]

You should point out that the proposed language is but slight adaptation of the language in the French proposal. The language as suggested by the French is unacceptable since it would permit the Occupation Authorities to exercise any controls whatsoever by simply agreeing to do so. This is contrary to the basic concept of the Occupation Statute according to which the powers of the Occupation Authorities were to be limited so that provisional German Government could function.

It is believed that the US/UK version in the draft joint text is too indefinite by itself. The words “and cooperation” which appear in the US/UK version have been omitted in the above proposal as unnecessary and likely to appear to the Germans as mal à propos in this context. If the theory of international security contained in the US/UK version is incorporated in the French language as you authorized to propose, it would serve as a limitation on future agreements and would limit controls to those specifically agreed upon.

If other delegations prefer not to limit the controls to the particular fields enumerated you are authorized to propose the following adaption:

“To exercise such controls as have been or may be agreed upon by the occupying powers or occupation authorities in regard to the Ruhr, reparations, foreign interests in and claims against Germany, and to insure international security including those in regard to prohibition and limitation on the level of industries, decartelization, disarmament, demilitarization, certain aspects of scientific research and control of frontiers in regard to persons entering or leaving Germany.”

You are requested to propose that the words “industrial ownership” be omitted from Section 2(c) of Article II. The French have made it clear that what they have in mind is a reserve power relating to patents, trade-marks and associated rights and in particular the operation of the German Patent Office.

The French Government has stated in several recent notes to the Department that the reestablishment of the German Patent Office with the authority to conduct search of patent applications for novelty of invention would constitute a form of technological research which would be a security threat. This argument is considered largely artificial.

Your request for omission of this phrase can be justified by stating that, once the patent and trade-mark systems of Germany are restored to normal operation, there is no need for further interference in the conduct of them by the Occupying Powers, that such interference would in fact be resented by the Germans, and that any aspects of research which are involved in the operation of the patent office would be covered by the reserve power on research contained in Para. 2(c).

You are, however, authorized to agree to inclusion of this reserve power if the French prove adamant on the subject, and its inclusion becomes necessary in order to get agreement on the whole statute. If this becomes necessary, the English wording should be changed to “industrial property rights,” which is the equivalent of the French “propriété industrielle.”

[Here follow detailed instructions on other disagreed paragraphs of the draft occupation statute.]

Lovett

1. The text of the London Six Power Report on Germany is printed in Foreign Relations, 1948, vol. ii, chapter i.
2. Not printed; for the text of this document, see Germany 1947–1949, pp. 275–277 or Ruhm von Oppen, Documents on Germany, pp. 315–318.
3. The text of the comments by the German Ministers President on the basic principles is printed in Foreign Relations, 1948, vol. ii, p. 385.
4. For documentation relating to the Military Governors’ negotiations for an Occupation Statute for the three Western zones of Germany, see ibid., p. 597.
5. For documentation relating to the deliberations of the Bonn Constituent Assembly, see pp. 187 ff.
6. Foreign Relations, 1948, vol. ii, p. 650.
7. For documentation relating to the London Conference on the Ruhr, November 11–December 24, 1948, including the draft text of the agreement for the establishment of the International Authority for the Ruhr, see Foreign Relations, 1948, vol. ii, pp. 448 ff.
8. For the text of the draft Occupation Statute, transmitted as an annex to the Report of the Military Governors, December 17, 1948, see Foreign Relations, 1948, vol. ii, p. 653.