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

740.00119 Control (Germany)/3–749

Memorandum by Mr. Ware Adams of the Policy Planning Staff to the Director of the Policy Planning Staff ( Kennan )

secret

[ Washington ,] March 7, 1949.

Subject: The Occupation Statute for Western Germany

The Problem

1. To review the proposed occupation statute for Germany at its present stage of drafting, with a view to facilitating its early completion in the form most satisfactory to us in the light of current developments.

2. The work of drafting the occupation statute to implement the London decisions of June 1, 1948, concerning Western Germany, was initiated by the three military governors and their staffs in Germany. Their initial effort then became the subject of comment from their respective governments, that from Washington representing a compromise between comments of the Departments of State and the Army. After a further effort the military governors referred the partially completed draft to the governments with a statement of remaining differences. Drafting was then continued on a “government level” in London, where further efforts are now being made to resolve the remaining differences.

3. The resultant document, still partially incomplete, having been worked on separately by different groups, and representing repeated compromises, has become somewhat lengthy, rigid, complicated, and difficult to follow and interpret. It is an accretion of successive additions rather than a well-rounded concept designed to achieve a clear-cut occupational objective.

4. Questions also arise concerning its workability, since it makes a rigid division of authority between the occupation authorities and the German authorities in such a way that each will be affected by the other without being able to control the other in the exercise of authority in the allotted fields. Authority allotted to the Germans could not be reassumed by the occupation authorities except in a declared general emergency.

Factors Bearing on the Problem

5. It has never been made clear, either in the London agreements or subsequently, whether it was the intention of the allies to establish a Western German “state”, separate from the rest of Germany, or merely a governmental and administrative regime for “zones of occupation” defined by the EAC and Potsdam agreements as occupation subdivisions of the territory of Germany as a whole. The distinction now assumes considerable importance: partly because the drafting of the occupation statute now tends to fall between these two stools; partly because the Soviet Union charges that we do intend to establish a separate “state” in violation of the 1945 agreements to place Germany as a whole under quadripartite occupation headed by an Allied Council at Berlin; and partly because the Germans wish to make Western Berlin a part of the Western “state”.

6. However, the Germans themselves have made their own choice between these two juridical alternatives unanimously and unmistakably clear. Within and without the Parliamentary Council convened at Bonn to implement the London decisions, the Germans have refused to participate in any arrangement that would imply a separate “state” or prejudice the eventual achievement of German unity. For example, the Council refused to draft a “constitution” as suggested by the allies, but insisted instead upon drafting a “basic law” for the interim government of those “parts” of “Germany” subject to it.

Conclusions

7. It would therefore be desirable to clarify the intentions of the three Western occupation powers with respect to the juridical and political status of the regime they intend to install in Western Germany, rather than let it appear to waiver ambiguously between a regime for certain territory under military occupation and one for a “state” separate from the rest of Germany which would be partially independent of the occupation authorities.

8. This is done rather clearly in the draft proclamation that would serve as a preamble to the occupation statute, in these words: “The Military Governors and Commanders-in-Chief of the French, United States and British zones have decided that pending agreement on Germany as a whole, it is expedient for the better administration of their zones to establish provisionally a constitutional German government …” But this principle becomes blurred in the actual text of the statute itself, in which an effort is made to delimit by statute not only the powers of the German government but also the powers of the occupation authorities themselves, even to the point of subjecting the latter to decisions of a High Court or Tribunal.

9. The existing text of the statute might easily be brought into line with the clearly stated draft proclamation-preamble by writing into it the principle that although the German authorities would normally be permitted to function independently on many matters, they would do so subject to the over-riding supreme authority of the occupation authorities. This could be accomplished by altering Article I from its present form to that of Article I of the existing control agreement for Austria, which has now regulated the Austrian Government for nearly three years to the complete satisfaction of both the Austrians and ourselves, viz.

“Article 1. The authority of the Austrian (German) Government shall extend throughout Austria (the three occupation zones), subject only to the following reservations:—

• “(a) The Austrian (German) Government and all subordinate Austrian (German) authorities shall carry out such directions as they may receive from the Allied Commission (Military Governors);
• “(b) In the matters specified in Article——neither the Austrian (German) Government nor any subordinate Austrian (German) authority shall take action without the prior written consent of the Allied Commission (Military Governors).”

10. Such a provision would then greatly facilitate the drafting of the rest of the statute, since it would no longer be necessary to specify in advance all conceivable action that the occupation authorities might later deem it necessary to take or require, or to establish a High Court to rule on their power to do so.

11. It would make it unnecessary to elaborate “reserved powers” as distinct from fields prohibited to the Germans, thus simplifying Article II (Reserved Powers) of the present draft. It would make unnecessary the proposed draft’s Article VI (Emergency Powers), VIII (Interpretation of the Statute), and IX (Amendments), and make it much easier to formulate Articles III (Legislative Powers), IV (Executive Powers), and VII (Requirements of the Occupation), in simpler form if they are considered needed at all.

12. It would not only clarify the status of the regime to be set up in Western Germany, but would have many other advantages as well. It would be simple, flexible, and comprehensive, and easier to negotiate.

13. It would permit the Germans to govern themselves to the extent that they proved capable of doing so satisfactorily, and correspondingly reduce the administrative burden on the occupying powers, without in any way lessening the ultimate authority of the latter whenever and wherever the three powers might agree that such authority should be exercised.

14. It would provide a flexible trial period in which to see whether and how the Germans might govern themselves, and in which the Germans might show their own abilities and inclinations.

15. It would make the occupation statute much easier for the three powers to negotiate among themselves, since they would not feel obliged to think up beforehand all conceivable circumstances in which they might later find it necessary to exercise authority.

16. It would make it unnecessary to provide a special High Court to regulate the powers of the occupying authorities, since their authority would remain supreme during the trial period insofar as they chose to exercise it.

17. At the same time it would not in any way inhibit the Germans from enjoying self-government to the extent they proved capable and worthy of it, if the Austrian case is taken as an example. Instead, indeed, it would relieve German political leaders of the onus of moves contrary to natural political forces such as German nationalism since such moves could be ordered in the name of the occupying authorities rather than the German authorities.

18. It would eliminate the anomalous and embarrassing need for deciding whether western Berlin should be a part of “Western Germany”, since it is not in fact geographically a part of the western zones of occupation.

19. It would provide a partial basis, if one were desired, of meeting Stalin’s charge that the blockade of Berlin is occasioned by the establishment of a western German “state”.

20. It would make it unnecessary prior to putting the statute into effect, to try to make final or semifinal decisions concerning matters such as the Ruhr, reparations plant removals, and restricted and prohibited industries.

21. Finally, it would keep us a free hand to decide later whether we preferred ultimately to establish a separate Western German state or alternatively enter CFM discussions with the Soviet Union concerning Germany as a whole and the Berlin situation.

Recommendations

22. It is recommended that consideration be given to revision of Article I along the lines of paragraph 9 above, and to the deletion of other provisions thus rendered irrelevant, as a means of enabling the American negotiators in London to achieve an early completion of the occupation statute for the western zones of occupation in Germany in a form most suitable to the interests of the western occupation powers in the light of recent developments and prospective needs.

Ware Adams