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

740.00119 Control (Germany)/4–249: Telegram

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

secret

London, April 2, 1949—4 p.m.

1338. Following is clean text Occupation Statute as agreed yesterday’s plenary. French agreement paragraph 23 conditioned on satisfactory solution Kehl. (Embtel 1337, April 2, repeated Berlin 199.¹)

Intergovernmental Talks (Occupation Statute—Germany)

draft report

1. In accordance with the instructions of their governments, representatives of the United States, France and the United Kingdom have met in London from 17 January, 1949 in order to discuss the report of the Military Governors of the United States, French and British Zones of Occupation in Germany on the Occupation Statute² and to reach agreement on a joint draft text of the statute for submission to their respective governments. They also discussed other matters relating to the statute.

2. The text of the Occupation Statute recommended as result of these meetings is attached as Annex A.

3. It was agreed by the representatives of the United States, France and the United Kingdom that the following points required comment:

(A) Article II, paragraph 2 (a).

Invitations to participate in international conferences should be transmitted to the Occupation Authorities for forwarding to the German Authorities.

(B) Article II, paragraph 2 (c) (iii).

Agreement was reached that the words “their industrial application” of subparagraph 2(c) (iii) shall be interpreted to include inter alia any research activities of the Patent Office in accordance with the provisions of this paragraph.

(C) Article III, paragraph 6 (b).

It is recommended that the Military Governors, before the coming into force of the Occupation Statute, should agree on those matters which under paragraph 2(b) should be withdrawn from German legislative competence.

(D) Article III, paragraph 7 (b).

[Order 163 of the French Commander-in-Chief shall be included among legislation of the occupation authorities referred to in Article III of paragraph 7(b) of the draft Occupation Statute and the administration of Kehl shall be taken as belonging to those questions referred to in Article II paragraph 2(a)]³ (French).

(E) Article IV, paragraph 10.

It is recommended that the Military Governors should be instructed to transmit to the German Authorities a statement to the effect that paragraph 2, Article II and paragraph 10 Article IV preserve to the Military Security Board the right to visit any installations without prior notification in accordance with its terms of reference.

(F) Article IV, paragraph 11.

It is agreed that the power of dismissal conferred by this paragraph upon the occupation authorities shall only be exercised when three Military Governors are of the opinion in each case that the German concerned should be dismissed.

(G) Article IV, paragraph 12.

It is agreed that orders and directives issued by the occupation authorities under the statute shall be directed to the responsible heads of the federal and Land authorities and that only in cases when it is necessary to deal with matters affecting the occupying forces and their operations in particular localities will the occupation authorities communicate directly with the heads of the county and municipal authorities.

(H) Article V, paragraph 14.

It would be desirable for the occupation authorities to enact legislation affirming the title to property transferred as reparations or otherwise under Military Government authority, so that the validity of such transfers may not be litigated in German courts.

(I) Article VII, paragraphs 20 and 21.

The text of paragraphs 20 and 21 aims at leaving open the question whether occupation and mandatory costs will be collected by the federal state or by the Laender. Agreement was reached that the responsibility to the occupying powers for the payment of these costs must definitely be laid on the federal state. As the imposition of this responsibility interpreted in the light of paragraph (d) of Annex H of the report of the Six-Power Conference of the 1st June, 1948,⁴ might lead the Parliamentary Council to feel compelled to vest in the federal state financial powers which the occupying powers might think excessive, it was considered advisable to agree on an explanation of the attitude of the occupying powers to be issued to the Parliamentary Council, and it is recommended that the Military Governors should be instructed to issue the statement set out in Annex B at the same time as they transmit the draft Occupation Statute to the Germans.

(J) Article VIII, paragraph 23.

It is agreed to recommend to the President of the International Court of Justice that of the two jurists whom he is to be asked to nominate to sit on the High Court, one should not be a national of the occupying powers nor of Germany, nor of any power which has been at war with Germany at any time after September, 1939 and that the other should be a national of the Benelux countries.

Annex A

Joint Text of the Occupation Statute Proclamation

To the people of the French, United States, and British Zones of Occupation in Germany:

• Whereas the Governments of France, the United States and the United Kingdom desire to establish just and lasting peace and to enable demilitarized and democratic Germany to play her part in the community of peace-loving nations of Europe and the world:
  • Whereas in the interest of better administration and the furtherance of German democratic responsibility, pending agreement on Germany as a whole, the 3 governments have authorized the establishment of a Provisional Constitutional German Government:
    • Whereas without prejudice to the provisions of the peace treaty the 3 governments have agreed to define on the basis of the present temporary organization of Germany a common policy as to their fundamental relations with the German people in their zones, and

      Whereas supreme authority is exercised by the Military Governors and Commanders-in-Chief of the French, United States, and British Zones of Occupation, acting on the instructions of their respective governments, each in his own zone of occupation:

We, General Pierre Koenig, Military Governor and Commander-in-Chief of the French Zone of Germany, General Lucius D. Clay, Military Governor and Commander-in-Chief of the United States Zone of Germany, and General Sir Brian Hubert Robertson, Military Governor and Commander-in-Chief of the British Zone of Germany, do hereby jointly proclaim the following Occupation Statute:

Article I

Powers of the Federal State and of the Participating Laender.

1. The federal state and the participating Laender shall have, subject only to the limitations in this statute, full legislative, executive, and judicial powers in accordance with the basic law (Provisional Constitution) and with their respective constitutions.

Article II

Powers Reserved to the Occupation Authorities.

2. The occupation authorities retain the powers necessary in their opinion to enable them:

(a) To conduct or direct the external relations of the federal state until such time as it may be permitted unrestricted external relations. However, German representation at international conferences attended by one or more of the occupying powers shall be permitted, provided that the members of the delegation have been approved by the occupation authorities and no international obligations entered into by such delegation shall become effective without the approval of the occupation authorities;

(b) To exercise such control over German foreign trade and foreign exchange and over internal policies and measures which could adversely affect them, as they may consider the minimum necessary to ensure:

(i) Respect for Germany’s international obligations, including those entered into by the occupation authorities in regard to Germany;

(ii) The proper use of funds, food and other supplies made available to Germany, and

(iii) The repayment in due time of expenditures incurred by the occupying powers in respect of, or on behalf of, Germany.

(c) To exercise such controls as have been or may be agreed upon by the occupying powers or occupation authorities in regard to the Ruhr, reparations, foreign interests in and claims against Germany and such further controls as have been or may be agreed by them in the following fields to ensure international security:

(i) Prohibitions and limitations on industry;

(ii) Decartelization and deconcentration;

(iii) Disarmament, demilitarization and certain aspects of scientific research and their industrial application; and

(iv) Movement of persons and property entering or leaving Germany;

(d) To protect the prestige and to ensure the security of the occupation forces; to guarantee their immunity from German legislative, executive, and judicial action, and the satisfaction of their requirements; and to conduct operations they deem essential to the national security of their countries;

(e) To ensure the observance of this statute, of the basic law (Provisional Constitution) and of the Land constitutions;

(f) (i) To safeguard and protect the property, rights or interests of any non-German state or its nationals, including those in enterprises organized or doing business in Germany;

(ii) To prevent any official action, or any private action in the fields of commerce, finance or industry, which:

(1) Discriminates against any non-German national, or any enterprise comprising or involving an interest of a non-German state or its nationals, as compared with German nationals or enterprises;

(2) Is inconsistent with the principles and aims of the Havana Charter for an International Trade Organization or of the International Monetary Fund;

(g) To protect the claims to compensation of persons affected by seizure of external assets or reparations removals;

(h) To regulate the admission of refugees;

(i) To ensure the protection, maintenance, repatriation and resettlement of displaced persons;

(j) To control all aspects of civil aviation and facilities therefor;

(k) To require the federal state and the participating Laender to furnish periodically the information and statistics needed by the occupation authorities for the exercise of the powers reserved in this statute and, in addition, to furnish any special information and statistics which may be requested by the occupation authorities. They shall be provided with every facility to verify all such information and statistics; and

(l) To control the care and treatment in German prisons of persons charged before or sentenced by the courts or tribunals of the occupying powers or occupation authorities and the carrying out of sentences imposed on them; and to decide questions of amnesty, pardon or release in relation to them.

Article III

Legislative Powers.

3. The federal state and the participating Laender will exercise the legislative powers conferred upon them under Article I hereof subject to the provisions of this Article.

4. (a) Land constitutions and amendments to the basic law (Provisional Constitution) or to any Land constitution shall not come into force until approved by the occupation authorities.

(b) Except as provided in paragraph 6, other legislation enacted by the federal state or the participating Laender shall come into force on the twenty-first day after its official receipt by the occupation authorities or such later date as may be provided in the legislation, unless within the said period of 21 days it has been disapproved by the occupation authorities. They will not disapprove such legislation unless in their opinion it violates the basic law (Provisional Constitution), Land constitution, legislation of the occupation authorities or the provisions of this statute.

5. Subject to the provisions of paragraph 18, Article VI, the occupation authorities will in future limit their legislation to the matters referred to in Article II. On other matters, they may also, after consultation with the appropriate German authorities, repeal German legislation in force on the effective date of this statute if it is inconsistent therewith.

6. The federal state and the participating Laender shall have the power to legislate in accordance with the basic law (Provisional Constitution) on the matters referred to in Article II subject to the following conditions:

(a) In those matters enumerated in paragraph 2(a), (c), (d), (f) and (j) they may legislate after they have received the prior written authorization of the occupation authorities. Such legislation shall come into force after it has received the written approval of the occupation authorities.

(b) On other matters enumerated in paragraph 2 they may legislate after 90 days from the effective date of this statute and on the understanding that the occupation authorities retain the right to direct otherwise:

(i) In those cases where such legislation would have the effect of repealing, amending or otherwise modifying the legislation of the occupation authorities it will come into force only after it has received the written approval of the occupation authorities.

(ii) In all other cases such legislation shall come into force as provided in paragraph 4(b) unless within the period of 21 days the occupation authorities notify the appropriate German authorities that the period shall be extended by not more than 30 days from the date of such notification. In exercising their power of disapproval the occupation authorities will not be bound by the limitations contained in the last sentence of that paragraph.

7. Legislation of the occupation authorities enacted before the effective date of this statute shall remain in force until repealed or amended in accordance with the following provisions;

(a) The occupation authorities will repeal or amend legislation which they deem inconsistent with this statute;

(b) Within 90 days of the effective date of this statute, the occupation authorities will codify legislation pertaining to the matters mentioned in Article II, and as far as possible, harmonize it;

(c) Legislation not referred to in (a) and (b) will be repealed by the occupation authorities on request from the German authorities.

Article IV

Executive Powers.

8. The federal state and the participating Laender shall be entitled to exercise executive authority in all matters within their competence, subject to the provisions of this Article.

9. The German authorities may enter into commercial relations through commercial representatives abroad, under regulations approved by the occupation authorities. These representatives shall be appointed by the German authorities with the approval of the occupation authorities and may be entrusted with such consular functions as may be agreed by the occupation authorities.

10. In the exercise of their powers under Article II the occupation authorities may take action themselves or direct measures to be taken by the German authorities.

11. Action of the occupation authorities under the preceding paragraph includes the right to require the dismissal of any German holding public office or any German public servant who in the opinion of the occupation authorities obstructs them in the exercise of the powers and the fulfillment of the responsibilities retained by them under this statute.

12. All orders and directives issued by the occupation authorities under this statute will be transmitted to the responsible head of the appropriate German authority.

Article V

Judicial Powers.

13. German courts shall have jurisdiction in all criminal cases except the following:

(a) Cases falling under the jurisdiction of military courts of the occupation forces;

(b) Cases affecting the security or prestige of the occupation forces;

(c) Cases arising under legislation of the occupation authorities where such legislation provides that German courts shall have no jurisdiction;

(d) Cases against:

(i) Members of the occupation forces;

(ii) Non-Germans accredited to or sponsored by the occupation authorities;

(iii) Dependents of persons in categories (i) and (ii) above;

(iv) German nationals employed by the occupation forces, where the charge is in respect of any matter arising in the course of or out of their official duties;

(v) Displaced persons, where the charge is in respect of an offense committed before the expiration of a period of 2 years from the effective date of this statute;

(e) Cases involving offenses against any person mentioned in subparagraph (d) (other than sub-paragraph (iv)) above or his property, or against the property or safety of the occupying powers or occupation forces, unless German courts are authorized by the occupation authorities to exercise jurisdiction.

14. German courts shall have jurisdiction in all civil cases, provided that unless expressly authorized by the occupation authorities they shall not exercise jurisdiction in cases in which any person mentioned in paragraph 13 (d) (i), (ii) and (iii) is a party, or in which any person mentioned in paragraph 13(d) (iv) and (v) is a party in respect of any matter arising in the course of or out of his official duties with the occupation forces.

15. German courts shall not have jurisdiction in any case involving a challenge to the validity of any legislation of the occupation authorities or of any order issued by them.

16. The occupation authorities reserve to themselves the right:

(a) To try offenses arising under their legislation which the German authorities have neglected to prosecute;

(b) To try any person, irrespective of his nationality, who is charged with participation in an offense allegedly committed by a person mentioned in sub-paragraph (d) of paragraph 13, or with being an accessory thereto;

(c)

To set aside the decision of any German court,

(i) Which violates the provisions of this statute or any legislation of the occupation authorities or any German legislation enacted at their instance or under paragraph 6, Article III, or

(ii) In which in the opinion of the occupation authorities a non-German national has suffered a substantial miscarriage of justice.

And in either event to order a retrial of the case, either in one of their courts or in a German court; and

(d) To establish such courts as they may consider necessary for the trial of cases excluded from the jurisdiction of German courts or withdrawn from such jurisdiction under the provisions of this Article.

17. Subject to the requirements of their security, the occupation authorities guarantee that all agencies of the occupation respect the right of every person to be protected against arbitrary arrest, search or seizure to be represented by counsel, to be admitted to bail as circumstances warrant; to communicate with relatives; and to have a fair and prompt trial.

Article VI

Emergency Powers and Special Responsibilities of the Occupation Authorities.

18. The occupation authorities reserve the right to resume the full exercise of their authority if they deem it necessary in an emergency threatening security. Before so doing, they will formally advise the appropriate German authorities of their decision and of the reasons therefor.

19. The occupation authorities will have a special responsibility to observe, advise and assist the federal state and the participating Laender in regard to the democratization of political life, social relations and education of the German people. This shall not imply additional restrictions on the legislative, executive and judicial competence accorded to them in those matters. The federal state and the participating Laender will furnish any special information, facilities and statistics which may be requested by the occupation authorities in the exercise of this responsibility. Legislation in those fields shall be subject to the provisions of Article III of this statute.

Article VII

Requirements of the Occupation.

20. The powers of the occupation authorities under Article II include the power to require the appropriate German authorities to make such financial or other provisions as the occupation authorities may deem necessary for the discharge of their responsibilities and the satisfaction of their requirements. The German authorities will be consulted on the procedure to be followed for the satisfaction of such requirements.

21. The occupation authorities shall, in respect of every financial year, establish estimates of their requirements (occupation costs) and of the other provisions to be made under paragraph 20 of this Article (mandatory expenditures). The estimates shall be presented to the federal state government before the beginning of the financial year and shall not be exceeded without supplementary estimates, similarly established which shall likewise be presented to the federal state government as the occasion arises. In principle, supplementary estimates in respect of occupation costs shall not be presented except for special reasons, such as important errors in the original estimates, changes in the functions, size or deployment of the occupation forces, increases in prices and wages. The federal state will be responsible for the payment to the occupation authorities of all costs arising under this Article.

Article VIII

Interpretation of the Statute.

22. The federal state or any participating Laender may, on its own behalf or on behalf of any one of its citizens, appeal from any action taken by the occupation authorities on the ground that the action is in conflict with the provisions of this statute. Such appeals shall be addressed to the appropriate occupation authorities according to procedure to be established.

23. In case of adverse decisions on the appeal, there shall be a further right of appeal to a high court according to procedure to be established. The high court shall consist of 9 members appointed by the occupation authorities and selected as follows:

Two by each of the occupation authorities;

Two by the President of the International Court of Justice, 1 being a national of Belgium, the Netherlands or Luxembourg and 1 a national of a state which has not been at war at any time between September, 1939 and May, 1945; and 1 by the federal state.

Its decisions will be binding on the parties.

24. No appeal under paragraph 22 or 23 shall have the effect of suspending the action taken by the occupation authorities.

Article IX

Amendments to the Statute.

25. (a) The occupation authorities retain the right to amend this statute at any time. No amendment shall be made without prior notice to and consultation with the governments of the federal state and of the participating Laender.

(b) After 12 months and in any event within 18 months of the effective date of this statute the occupying powers will undertake a review of its provisions in the light of experience with its operation and with a view to extending the jurisdiction of the German authorities in the legislative, executive and judicial fields.

Article X

Definitions.

26. For the purposes of this statute:

(a) The term “occupying powers” shall mean the French Republic; the United States of America; and the United Kingdom of Great Britain and Northern Ireland;

(b) The term “occupation authorities” shall mean the authorities, civil and military, in Germany, of the occupying powers as defined in (a) above, acting in accordance with procedures agreed between them;

(c) The term “occupation forces” shall include:

(i) The occupation authorities,

(ii) The armed forces, including the auxiliary contingents of Allied powers, serving under the Commanders-in-Chief of the occupying powers, and

(iii) Non-German organizations and persons accompanying or serving with the said authorities or forces;

(d) The term “legislation of the occupation authorities” shall mean legislation applicable to those parts of Germany under the jurisdiction of the occupation authorities enacted otherwise than by German authorities.

(e) The term “federal state” shall mean [the Federal Republic of Germany].

(f) The term “basic law (Provisional Constitution)” shall mean the basic law (Provisional Constitution) for the [Federal Republic of Germany].

Article XI

Authentic Texts.

27. The English and French texts of this statute shall be equally authentic.

Article XII

Effective Date.

28. This statute shall come into force on the date on which the basic law (Provisional Constitution) enters into force and shall be effective in the territory of the [Federal Republic of Germany] composed of the following Laender: (Here set out the Laender of the French, US, and British Zone.)

Occupation Costs.

The costs arising under Articles 20 and 21 of the occupation statute represent a heavy though diminishing burden on the German economy. This temporary charge should not lead to a concentration of excessive financial power in the federal government. The circumstance that responsibility has been placed on the federal state with respect to payment of these costs is not intended to prejudge in any way the method by which, under the basic law, the federal state will obtain the funds necessary for their payment.

Douglas

1. Not printed.
2. Foreign Relations, 1948, vol. ii, p. 597.
3. The brackets in this and subsequent articles are in the source text.
4. The Report of the London Conference on Germany is printed in Foreign Relations, 1948, vol. ii, p. 191.