740.00119 Control (Germany)/1–2949: Telegram

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

us urgent

354. Accompanied by Reber1 and Trimble I met with Bevin and Schuman2 and their advisors this morning re occupation statute.3 As discussion developed during which I had occasion to withdraw on proposal for appeal (Deptel 257, January 24, repeated Berlin 914), it was obvious that Bevin and Schuman had previously reached an agreement [Page 23] whereby British would support French contention that Germans be excluded from court in return for French acceptance formula on occupation costs (paragraph 1 Embtel 307, January 25, repeated Berlin 595). Thus, notwithstanding previous position on question (paragraph 12 Embtel 245, January 20, repeated Berlin 476) Bevin put forward compromise proposal for five-man court consisting of three allied judges, one Benelux and nonoccupying power and two German “assessors.” In elaboration Bevin asserted that if German judge were included on court he would be placed in difficult position since he not only would possess a minority voice but also would by his very presence become party in German eyes to decisions that might be unpopular with Germans. On the other hand, it would be desirable to have Germans present in capacity of assessors since it would furnish them training in high court procedure in anticipation of day when they might possess full membership. Schuman indicated Bevin’s formula acceptable to French adding his opinion Germans would not wish to have members in high court if restricted to minority role. Schuman also reiterated contractual argument against inclusion of Germans.

I reviewed at length our reasons why German participation with full voting rights essential mentioning inter alia necessity giving Germans sense responsibility and appreciation rule of law and fact that since purpose of court is only to interpret statute, it is part and parcel of our basic objective to educate Germans in democratic processes. After discussion this point, I made strictly personal suggestion of court of three members (Deptel 257 January 24).

Schuman raised objections to proposal on grounds court might have to consider questions of policy as well as those of purely juridical nature and neutrals would not be adequately acquainted with matters incident to occupation. I pointed out that according paragraph 22 draft statute appeal to court restricted to juridical interpretation of statute. Contention that neutral justices would not be completely familiar with occupation matters would be met by appointing assessors of occupying powers and Germans to participate in deliberations of the court.

Despite his objections, we have impression that Schuman might have accepted my proposal formula if Bevin had not opposed it on grounds that no qualified justice of occupying powers would be willing to participate in role of assessor since he would feel that non-voting restriction would cast doubt on his ability to adjudicate in purely objective manner.

In view attitude of Bevin and Schuman, I then reverted to our original suggestion that court consist of judges representing occupying [Page 24] powers, neutrals, Benelux and a German asserting that my government considers it essential that court include German representative even though he would clearly be in minority position. Bevin reiterated view that Germans would probably prefer be associated with court as assessors rather than have one judge in minority. I thereupon suggested that we consult Germans whether they wished to be represented by assessors or a single judge.

Bevin and Schuman objected to this suggestion mentioning that submission of matter to Germans would indicate divergence in views among occupying powers.

As we had then spent almost two hours on court question with little progress, Bevin and Schuman asked me to convey former’s compromise proposal to my government and to request answer prior French cabinet February 2. I agreed to do so at the same time stating I could offer no hope acceptance by Washington.7

Question of occupation costs was disposed of in short order, Schuman accepting US–UK contention that federal state should be responsible to the occupying authorities for payment of occupation costs and formula mentioned paragraph 1 Embtel 307, January 25. Schuman desired, however, that wording of formula be extended by statement to effect that in interpreting “excessive and permanent concentration of financial power” military governors in this specific instance would not be strictly bound to letter of language contained paragraph (d) Annex H of London reports.8 Exact phraseology to be determined Monday.

At conclusion meeting Schuman expressed hope representatives three powers would meet again near future consider draft basic law.

Subsequent to meeting Bevin sent message that Schuman had been so cooperative re OEEC at Brussels powers meeting and occupation costs and that such progress was being made with French that he hoped we could help Schuman and take his present attitude into account when Department considers high court compromise. Bevin let us know that he is prepared to agree now, and if necessary to put into a minute, statement that if Germans “behaved themselves” during next year, he would support the replacement of German assessors on court by a [Page 25] German judge or judges at time statute comes up for revision in accordance with paragraph 25.

Sent Department 354, repeated Berlin 68.

  1. Reber was in London for the negotiations on the Austrian Treaty. For documentation relating to these negotiations, see pp. 1066 ff.
  2. Schuman was in London for the meeting of the Consultative Council of the Brussels Pact. Documentation on the Council meeting is in volume iii .
  3. A memorandum of conversation for this meeting was transmitted in despatch 243, February 10, from London, not printed (740.00119 Control (Germany)/2–1049).
  4. Not printed, but see footnote 4 to telegram 271, January 21, p. 18.
  5. Not printed, but see footnote 1 to telegram 305, January 25, p. 19.
  6. Not printed, but see footnote 6 to telegram 241, January 19, p. 14.
  7. In telegram 346, February 1, to London, not printed, the Department of State expressed its doubts about this compromise proposal since the presence of two Germans at the court as assessors would demonstrate their lower status. Holmes was instructed to inform the British and French that the compromise did not meet the United States objection and that the United States continued to regard German membership on the court not only as proper but also as a useful element in the new relationship being established with the Germans through the occupation statute. (740.00119 Control (Germany)/1–2949)
  8. The text of the London Conference Report on Germany is printed in Foreign Relations, 1948, vol. ii, p. 191.