662.001/3–2250: Telegram
The Secretary of State to the Office of the United States High Commissioner for Germany, at Frankfort 1
1873. Memo on termination of state of war with Ger has been sent to Brit and Fr Embassies today under cover note verbale. Copies of memo being handed Benelux missions for info. Text of memo for your info as follows.
“The United States Government has been studying the question of the advisability of terminating the state of war with Germany, in accordance with the decision of the Foreign Ministers at their meeting in Paris on November 9 and 10, 1949. In the course of this study a number of problems have presented themselves.
[Page 613]From a legal point of view, the question was raised as to whether the state of war could be terminated without a peace treaty and whether any legal basis exists for continuing the occupation, without the state of war. The legal advisers of the Department of State have examined these matters and have expressed the opinion that the state of war could be terminated by a joint resolution of Congress and that sufficient precedent exists to continue the occupation under presidential authority even after such termination. It is not clear, however, that some reciprocal German action would not be necessary in order to complete the termination in as much as there was a mutual declaration of war.
The Attorney General has been studying the effect of a termination of the state of war on domestic legislation. It appears that between one hundred fifty and two hundred acts of Congress would by their terms be repealed automatically upon the happening of such an event. While many of these are no longer of importance, it is believed that approximately eighty of them still are, and it is estimated by the Attorney General that the necessary legislation could not be introduced and acted on by the Congress at the present session. Some delay is therefore inevitable, but the Attorney General has been requested to expedite whatever action is necessary, so that the ground may be cleared as speedily as possible for a termination of the state of war at whatever moment that is considered desirable.
Furthermore, some troublesome legal questions with highly political over-tones immediately arise. With whom is the state of war terminated? Should the German Federal Republic be treated as the de jure government of all of Germany, the de jure successor to the rights and obligations of the German Reich, although de facto able to exercise its authority over only a part of the territory of the former Reich? The United States Government would not be willing at this time to terminate the state of war with Western Germany alone as it is not felt that the existing division of Germany should be accepted as final or permanent. On the other hand the United States Government believes it is still open to question whether it should assert in any formal manner that the government of the Federal Republic is considered to be the de jure government of all of Germany. The United States Government considers that the government of the Federal Republic is the only government which can speak for the German people. Therefore the United States Government has acted and intends to continue to act as if the government of the Federal Republic were indeed the de jure government of all of Germany. However, this is a claim which cannot be implemented de facto in the foreseeable future and it is questionable wisdom to create a situation in which the Western Governments are formally asserting a fiction unless that fiction has a reasonable prospect of soon becoming fact. Therefore, although the [Page 614] technical legal obstacles to terminating the state of war are apparently not serious, there does exist a serious politico-legal question of international character to which the United States Government is not at present prepared to furnish the answer. It is clear, nevertheless, that the Federal Government can in practice be regarded as the only government in existence in the state of Germany which can be held to be capable of speaking for the German people.
The United States Government has furthermore given consideration to the general advantages and disadvantages of terminating the state of war. Such action would be a logical extension of the general policy which the Governments of the United Kingdom, France and the United States, with the approbation of the Benelux Governments, are now pursuing towards Germany, that is, a policy of returning to a more normal inter-state relationship, of developing a constitutional responsible government in Germany, of permitting German consular and commercial representation abroad, and of admitting Germany to numerous international organizations. The German government would undoubtedly welcome a return to a peace status. Such a move would enhance its prestige and particularly vis-à-vis the regime established in the Soviet Zone. It would thus be an advantage—albeit almost certainly only a temporary one—in the propaganda contest thrust on the Western powers by the Soviet Union.
Except for a certain psychological-political advantage, however, it is questionable that a termination of the state of war now as an isolated act would bring substantial benefits or would sensibly alter the situation in any material way. It is one of the relatively few things yet remaining which the Western Powers have to offer to the German Government. There are on the other hand many matters which in one form or another will still have to be settled in agreement with the German government. Among these are claims against Germany, the status of pre-war German treaty obligations and the status of foreign property in Germany. It will also be desired to have Germany recognize the validity of Allied acts in and with respect to Germany, and it will be desired to have the German government enter into certain formal security arrangements. It may also be desirable to have the German government explicitly recognize the occupation status of the three Western Powers and in this connection it might be desirable to seek such recognition by means of a joint document replacing the Occupation Statute at the time of its revision at the end of 1950. From these considerations it is apparent that at the present moment it would be premature to terminate the state of war, as an isolated act. Naturally, if the Soviet Union should take some step amounting to termination of the state of war with “Germany”, it would be necessary for the Western Powers to reconsider their position.
[Page 615]It should be mentioned as a factor to be taken into consideration that many nations would be concerned in any arrangements concerning claims, property, security, etc. They might consider formal arrangements covering these questions to be in fact the equivalent of a peace treaty in some respects, and ways and means of allowing their participation or at least consultation would have to be found.
The United States Government remains convinced that return to a peacetime legal status is highly desirable and it will continue to study this problem with a view to removing as speedily as possible any legislative or other legal hindrances which now exist, so that the ground is cleared for action at a suitable moment. That moment may well come in connection with the review of the Occupation Statute to which we are obligated between mid-September 1950 and mid-March 1951. Meanwhile, it is the view of the United States Government, that, if the foregoing analysis of the problem is correct, no useful purpose would be served at this time by convening a committee of jurists as was provisionally agreed at Paris. Rather it is believed that the three Governments, in consultation with the Benelux Governments should give careful and continuing consideration to the possibility of creating early in 1951 a context of larger agreements into which a termination of the state of war could more suitably fit.
The United States Government would be happy to have the observations of the Governments of France and of the United Kingdom on these problems.”
- Repeated to London as 1271, Paris as 1230, The Hague as 272. Brussels as 377, and Luxembourg as 35, and Moscow as instruction 23.↩