740.00119 Control (Germany)/2–1149: Telegram

The Acting United States Political Adviser for Germany (Riddleberger) to the Department of State

top secret

228. Following is Clay’s comment in which I concur on draft principles trizonal fusion:

“Have just seen London No. 522 to State Department.1 To my mind this formula presents a maze of language which would make the effort to soundly administer Germany almost ridiculous. In point of fact, paragraph 4 under the interpretation which could readily be given to it would in fact make every function of government at all levels to be of tripartite interest, and hence subject to governmental appeal by any Military Governor who did not like German legislation.

We have gone far from the general understanding in London2 which stated that except as may be provided in the specifically reserved fields, German legislation would become effective unless it is approved [disapproved?] in 21 days by majority vote of Military Governors. This [Page 35] provision which we fought hard to get had for its purpose to prevent either a veto power or continuing delay which would retard progress being exercised by any one occupying power.

It would seem to me that the maximum which we could possibly accept in this field if we expect West German government to have any success, would be somewhat as follows:

Amendments to the federal constitution will require approval by unanimous agreement. Amendments to Laender constitutions may be approved by majority vote unless the dissenting occupying power appeals the decision on the grounds that it violates the federal constitution. In such case approval will be delayed until the governments of the occupying authorities casting the majority votes have considered the appeal of the government of the dissenting occupying authority. Such appeal will be considered as rejected if not accepted within 30 days after the casting of vote of the occupying authorities which in itself must be cast within 21 days after the submission of the proposed amendment by the proper German officials.
In the exercise of the powers reserved by subparagraphs a, c, d, i and j, of paragraph 2, Article II of the occupation statute, the action of the occupying authorities will be taken by majority vote. If any action so taken is deemed by one of the occupying authorities to be in conflict with fundamental principles of agreed policy, it may appeal through its government for the enactment of corrective legislation. (Note: Since the exercise of these powers will be by the legislative actions of the three occupying authorities, it would seem unnecessary to delay the actions of the majority pending government appeal. If the three governments subsequently agree that the actions are inconsistent with policy, they may instruct their representatives to take modifying or corrective action.)

All other decisions of the occupying authorities will be decided by majority vote and legislation not disapproved within 21 days after its submission by the responsible German officials will automatically come into force. However, in those measures which relate to the control of the operations and the carrying out of the responsibilities contemplated by existing fusion agreements for the British and US zones in Germany, the voting strength of the representatives of the respective occupation authorities will be proportionate to the funds made available by the respective occupation authorities on the basis provided in Article V of the agreement between the British and US Governments dated 17 December 1947.3

It was my understanding that we were attempting to develop in the occupation statute and with the approval of the German constitution, a tripartite policy which would enable the occupation authorities by majority vote to function quickly and positively in administering the three western zones as a whole. The proposed voting rights and appeals [Page 36] procedure are not only confusing but in my opinion would require high court interpretation far more than the occupation statute itself.

The problem of administering a government under conditions now existing in Germany are almost insuperable and a German government subject to the certain delays and possible disapprovals would become a laughing stock to all Germans. We must remember we are dealing with human beings. The proposal would now give to trizonal fusion less chance of success than bizonal fusion. It is difficult enough and almost impossible to administer Germany now under the very limited right which the French have to protest bizonal legislation. Given this document with its Rube Goldberg procedures, the powers of the veto and the ability to delay given to any one occupying authority makes the task of administering Germany worse than any affliction suffered by Job, and even his patience would not suffice for the American administrator. To my mind, it is worse than the Control Council which in its establishment recognized that a Zone Commander could proceed alone when Control Council agreement became impossible.”

Sent Department 228, repeated Paris 87, London 105 for Ambassador Douglas.

  1. Supra.
  2. The reference here is to the London Conference on Germany, February 23–March 6 and April 10–June 1, 1948. For documentation relating to this conference, see Foreign Relations, 1948, vol. ii, pp. 75 ff.
  3. For the text of this agreement which extended and revised the bizonal fusion agreement of December 2, 1946, see Germany 1947–1949, pp. 454–460.