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

740.00119 Control (Germany)/2–1549: Telegram

The Ambassador in the United Kingdom (Douglas) to the Secretary of State

secret

London, February 15, 1949—9 p.m.

579. From Holmes. 1. As indicated Embtel 522 February 10, repeated Paris 96, Berlin 102,¹ draft of principles trizonal fusion was a working paper to be used as frame for further discussion and did not imply in any way acceptance by US of any French proposals embodied therein. We have given careful consideration to all aspects of problem as known to us and on basis thereof have arrived at tentative conclusions and suggestions discussed below.

2. Statement of principles for guidance of Military Governors in arriving at definitive tripartite agreement regarding exercise of controls in Germany should provide for:

(a) Decisions to be reached by majority vote, save where amendments to Federal Constitution involved or in cases where US has dominant voice;

(b) Appeals against majority decisions should as far as possible result in suspension of action for limited time only and should only be permitted where decision is considered to violate tripartite policy as agreed at governmental level;

(c) Acknowledgment that all matters affecting Germany, unless specifically accepted [excepted?], are of tripartite interests;

(d) Organization of Military Governments should be of nature to permit occ authorities to exercise powers by means uniform tripartite policy and directives;

(e) Continuation these principles until altered by agreement by governments. While this statement is one of principles, it should be sufficiently definite to avoid insofar as possible further dispute on points covered by it.

3. Principal divergence between US and France with respect to foregoing concerns appeal procedure. We believe suspension for limited period of time should be sufficient to meet our requirements in event that US Military Governor disagrees with majority decision, for we would probably have sufficient time in intervening period to use means of pressure at our disposal to secure in most instances reversal or modification of original decision. Also we would prefer to run risk of losing appeal rather than endanger administration Western Germany by frequent obstruction. On other hand, French consider themselves to be in minority position and therefore to protect themselves believe that provision should be made for indefinite suspension of action on appeals against decisions in certain reserved fields. This procedure would in effect constitute veto and would generally increase French bargaining power. They admit, however, that appeals would only be made against decisions in conflict with fundamental policy of government. French have unexpressed fear that we and British might make majority decisions that would appear appropriate to us but that might be of such character as to embarrass and even endanger continuance third force government in France. British position is less categoric than French, but apparently consider there is some merit in indefinite suspension provision and have pointed out that in any case majority decision of Military Governors cannot be permitted to alter any inter-governmental agreements.

4. With the foregoing in mind, we have drawn up the following revised paper for Department’s consideration and comment. It has not been shown to either French or British and we do not propose to do so pending receipt Department’s instructions.

(1) “Subject to provisions of paragraphs 2 and 5 hereof Military Governors in exercise of powers reserved to them by Occupation Statute shall come to their decisions by majority vote.”

(Comment: We consider that insertion of phrase “in principle” as suggested by Department would weaken contention that majority vote should prevail.)

(2) “In exercise of powers reserved to Occupation authorities to approve amendments to Federal Constitution, decisions of Military Governors will require unanimous agreement.”

(Comment: British and French strongly of opinion that since Federal Constitution requires approval of three governments to become effective, it follows that amendments thereto likewise require unanimous approval. We consider argument valid and consequently perceive no objection to making this exception to majority rule. On other hand, we do not concur in French view Laender Constitutions require unanimous approval since Laender Constitutions must be consistent with Federal Constitution and also since these Constitutions originally approved unilaterally. While admitting that as suggested by Department unanimous approval regarding Occupation costs would enable us to prevent any Military Governor from levying costs by unilateral action, we consider this possibility adequately safeguarded by provisions Occupation Statute and inclusion subject among matters tripartite interest. In addition advantage would be more than outweighed by fact that provision for unanimous vote would conceivably enable British and French to hold up payment Occupation costs to US Forces.)

(3) “A Military Governor who considers that a majority decision concerning demilitarization and disarmament modifies or is not in conformity with intergovernmental agreements regarding Germany, may appeal to his government. Such an appeal shall serve to suspend action for not more than 30 days from date on which decision is made unless two of governments indicate that grounds justify further consideration. In such case, three governments will instruct their respective Military Governor further to suspend action pending agreement among governments.”

(Comment: This formula has effect of making majority vote of governments test of validity of appeal. Thus, if government of dissenting Military Governor is able to convince another government that the original decision for appeal is justified, indefinite suspension of action results pending ultimate intergovernmental agreement. This procedure in our opinion would prevent situation where a single government desiring to uphold prestige its Military Governor or desiring to offer arbitrary obstruction could exercise a veto. It avoids a purely subjective test of question whether appeal is actually taken on grounds contemplated in this agreement. Finally, it would seem to provide French with an adequate safeguard on matters in which they are primarily interested although it will probably be extremely difficult to convince them of this. If necessary for negotiation purposes other matters such as those listed in alternate paragraph 3 below could be included in this formula without endangering success of our basic policy.)

(4) “A Military Governor who considers that a majority decision involving any other matter reserved by Article II paragraph 2 of Occupation Statute is not in conformity with basic tripartite policy regarding Germany or on grounds that amendment to Land constitution violates basic law may require suspension of action while he makes appeal to his government. An appeal in this case shall serve to suspend action only for limited period of time which shall not exceed 30 days from date on which majority decision of Military Governors is made.”

(Comment: This formula has effect of limiting appeals against majority decisions in reserved field matters to those deemed at variance with basic tripartite policy. While time limit is believed sufficient to enable appeal to be considered by governments, it may be necessary to compromise on somewhat longer period.)

(5) See paragraph contained Embtel 489 February 8 repeated Paris 88, Berlin 91² text of which has been accepted with minor editorial change by British and French.

(6) “Except as otherwise determined by Military Governors, all actions of the Occupation authorities in respect to Germany shall in principle be considered to be of tripartite interest.”

(Comment: Paragraph is in line with principle set forth above that administration trizonal area should be on tripartite basis and that any unilateral action should be exception to general rule. It is, however, sufficiently flexible to enable Military Governors themselves to designate subjects not considered to be of tripartite interest.)

(7) “Organization of Military Government in three zones shall be of nature to permit Occupation authorities to exercise their common responsibility in these fields by means of uniform, tripartite policy and directives.”

(8) “The arrangements outlined above will continue in force until altered by agreement among the governments.”

5. As indicated by its wording, paragraph 3 above represents compromise between French desire for ultimate veto and our position that an appeal should suspend action for only a limited time. If we should be unable to sell it to French and British and have to accept indefinite suspension, we feel that it should be limited to as few fields as possible. Following alternate wording paragraph 3 therefore drafted against such contingency:

“If a Military Governor considers that a majority decision with respect to legislation concerning matters listed hereunder modifies or is not in conformity with agreed tripartite policy, he may require suspension of action while he makes appeal to his government. Such an appeal shall serve to suspend action until agreement is reached among governments.

(a) Guiding principles for conduct German external relations;

(b) Demilitarization and disarmament;

(c) Operations essential to national security of US, UK and France;

(d) Any other matters as may be agreed upon among three Military Governors.”

(Comment: We consider French categories of reserved matters subject indefinite suspension to be far too broad. Certain of them relate to matters which are covered by intergovernmental agreements and therefore not subject modification by Military Governors. Moreover, most these agreements provide special voting procedures. Above formula would tend to restrict appeals regarding paragraph 2a Occupation Statute to principles for conduct German external relations as opposed to day by day operations. Demilitarization and disarmament mentioned for same reasons given in comment on previously proposed paragraph 3. Inclusion operations affecting national security is designed to cover what we believe is essential element from French standpoint of paragraph (d) Occupation Statute.)

6. As we propose to suspend discussion this matter until full instructions received, early reply to this message urgently requested.³

Please pass Army.

Sent Department 579, repeated Berlin 107, Paris 104.

Douglas

1. Ante, p. 32.
2. Not printed.

3. In telegram 613, February 23, to London, not printed, Saltzman told Holmes that the Departments of the Army and State approved his memo in general, subject to certain comments that would be sent later, with the exception of paragraph 5 for which the following language was suggested:

   “In the exercise of the powers reserved to the occupation authorities in the occupation statute for the control of German foreign trade and foreign exchange and with respect to legislative and administrative actions which directly affect foreign trade and exchange, the representatives of the occupying authorities shall have a voting strength proportionate to the funds made available by their respective governments, except that no action taken hereunder shall be contrary to any intergovernmental agreement among the signatories. The trizonal fusion agreement or any separate agreement relating to control machinery for Germany shall incorporate this principle.” (740.00119 Control (Germany)/2–1549)