740.00119 Control (Germany)/1–2149: Telegram

The Chargé in the United Kingdom (Holmes) to the Secretary of State

us urgent

271. 1. Almost two hours Occupation Statute meeting1 devoted to consideration paragraphs 20 and 21. US and UK delegates employed numerous and various arguments with French Delegate and in view latter’s vulnerable position from logical as well as practical standpoint, we feel that we beat him down somewhat, although he is still hanging on through force of habit. In course of discussions US Delegate put forward suggestion that at appropriate place in article VII there be inserted provision that “collection of all costs arising under this article should be collected by federal state in accordance with relevant provisions of basic law (provisional constitution)”. US Delegate pointed out that under this suggestion, which he said he was making on his own responsibility, the question of exact method of collection would be postponed for settlement in basic law. US Delegate remarked that this compromise proposal would meet the French stated desire not to prejudge the question of the incidence of occupation costs in this statute. French Delegate’s reaction to this suggestion left it clear that his government has not abandoned its hope of fixing in the statute a concurrent responsibility for occupation costs on both federal, state, and Laender. At end, he suggested that each delegate prepare a “compromise text” for consideration tomorrow’s meeting.

2. He paragraph 23, French Delegate stated that his government was now agreeable to high court with powers to make decisions which will be binding on parties provided that court did not include German member. British Delegate then raised question of composition and size of court, remarking that Bevin desired a neutral member and that he favored in addition Benelux member, thus making an odd number of 5 which could find a majority. French Delegate stated that in his personal opinion these suggestions might be acceptable. French Delegate proposed that jurists representing occupying powers should be appointed by governments and not by Military Governors. British Delegate concurred. US Delegate stated that his government feels strongly that there should be German members on court and, pending receipt of instructions, was unable to comment on above. He also stated that US Government feels that provision should be made for appeal from court’s decision by Military Governors to their governments citing at length reasons for our position (Deptel 228, January 19, [Page 19] repeated Berlin 832). Both British and French delegates strongly objected to proposal, British asserting that idea “utterly repugnant” to English concept legal procedure and that no responsible British jurist would serve on a court of this type which would be little more than an advisory council. He likewise pointed out that under paragraph 22 it is provided that appeals may be made from any action taken by occupation authorities on ground such action in conflict with provisions statute, contending that therefore appeals are matters for appropriate decision by court, since they involve interpretation statute as legal instrument and not decisions on governmental policy.

I am impressed by force of these arguments and am inclined to believe that real court with neutral member more desirable than judicial council with German member. Would not point desirability giving Germans feeling participation be met in part by provision nomination “neutral” as suggested paragraph 4 Embtel 245, January 20 repeated Berlin 47?3 Would appreciate comment Department and PolAd Berlin on this matter as well as proposed redraft article III (Embtel 270, January 21, repeated Berlin 533) on urgent basis.4

Sent Department 271, repeated Berlin 54.

  1. The minutes of this meeting were transmitted in despatch 241, February 10, from London, not printed (740.00119 Control (Germany)/2–1049).
  2. Ante, p. 13.
  3. Not printed.
  4. Not printed.
  5. In telegrams 243, January 22, and 257, January 24, neither printed, the Department of State reiterated its belief that a German member of the High Court was necessary. The United States was ready to abandon the idea of appeal in order to meet the views of the British and French, and then suggested as a bargaining proposal that Holmes suggest an all neutral court of three. This proposal might induce the French to accept one German member on the court. (740.00119 Control (Germany)/1–2249 and 2449). Murphy replied in much the same vein, stating his belief that the Germans would have little faith in the court’s impartiality without German representation. (Telegram 119, January 23, from Berlin, not printed 740.00119 Control (Germany)/1–2349)