CFM files, lot M–88, box 158, WFM tripartite talks

Draft Instructions From the Three Foreign Ministers to the Allied High Commission1

secret

WFM T–5a2

I

The Ministers have examined the “Report of the Allied High Commission Concerning a New Relationship to be Established Between the Allied Powers and Germany”, dated August 9, 1951,3 and, subject to the modifications contained in the present instructions have approved its main recommendations. They have been guided by the following principles which should govern the negotiations with the representatives of the Federal Republic and remain the basis for all solutions which will result from these negotiations.

1. The guiding principle of the policy of the Three Powers with regard to the Federal Republic continues to be the integration of Western Germany on a basis of equality within a European community itself included in a developing Atlantic community. This will make it possible to renounce a system of restrictive controls, and to establish, in a manner best calculated to prevent the resurgence of militarism or of a Nazi or other totalitarian movement, a new relationship with Germany based, not upon the occupation of a defeated country, but upon the cooperation of the Federal Republic with the free nations, including participation in the system of collective defense set up for the North Atlantic area. This requires granting to the German people a status of freedom and equality in a European framework and a feeling of partnership. The Ministers are convinced that the stage has now been reached at which the retention in the future of an occupation status or of power to interfere in Germany’s domestic affairs will develop antagonisms, blunt Germany’s sense of responsibility, and generally impair the achievement of the common objectives of the Three Powers.

2. The objective cannot be reached by according full sovereignty to the Federal Republic because Germany remains divided and because the Federal Republic is confronted by a security menace from beyond its borders and beyond its control. As long as this situation continues [Page 1198] and in order to deal with it, we must retain the right to exercise in certain fields the supreme authority assumed under the Declaration of June 5, 1945.4 In the opinion of the Ministers, this is in the interest of the Germans as well as the Allies, since it offers the possibility of limiting Soviet initiative in Germany and constitutes the safeguard for the peaceful reestablishment of German unity. We should relinquish the right to exercise supreme authority in all other fields including that of German domestic developments. The special responsibilities of the Allies will require the continuation of tripartite action through a Council of Ambassadors. Furthermore, the three Foreign Ministers will continue to meet periodically to consider German questions.

3. It is the desire of the Foreign Ministers that the arrangements with the Federal Republic should establish a firm political basis for the association of the Federal Republic with the defense of the West and for its relations with the free nations which can be maintained until a peace settlement with a unified Germany becomes possible.

4. There is complete agreement that the formation of German military units will be permitted only as a part of an international defense force of such a character as to prevent the creation of a German national army or the utilization of German forces for solely German purposes in a way which could endanger the security or peace of the free world. [A basic assumption on which the Ministers have noted is that the fulfillment of these conditions will promptly be achieved through the proposed European Defense Force, which will form a part of the joint defense forces established under the North Atlantic Treaty Organization. US/Fr]5 This will make unnecessary the continuation of certain existing security controls which have in the past been exercised by virtue of supreme authority. Other such security controls should be replaced by contractual safeguards reduced to the minimum and compatible with the partnership status which we seek to create for the Federal Republic. The objective is to retain only such safeguards as are necessary and can be maintained effectively for an extended period of years.

[Page 1199]

5. The legal basis for maintaining Allied troops in Germany will continue to be the supreme authority of the Three Powers. However, in keeping with the new status of the Federal Republic described above, the mission of the forces of the Three Powers (as well as of other NAT powers) will no longer be that of the occupation of the territory of a defeated enemy, but that of cooperation in the common defense to which the Federal Republic will be contributing as a partner. The status of our forces should therefore be adapted to this new situation, and special rights or privileges should only be retained insofar as necessary for the accomplishment of the mission of these forces. Taking into account these considerations, the arrangements should be assimilated as closely as possible to the standards applicable to the stationing of friendly forces in other countries, except as necessitated by the fact that extraordinarily large number of troops will be stationed in the Federal Republic and that the latter is a forward area in the strategy of European defense.

II

6. Guided by the above principles, the Ministers have reviewed the areas of disagreement set forth in Section IV of the Report and desire that the outstanding issues be resolved by the High Commissioners as follows:

7. Security Controls

A. Disarmament and Demilitarization, Scientific Research, and Industrial Production

The maintenance of supreme authority to control these fields would be incompatible with the new relationship which the Allies wish to create with the Federal Republic. In addition to the safeguards which will be provided by the arrangements for associating Germany with Western Defense, the other limitations in these fields which are to be preserved should be placed in contractual arrangements and should be as follows:

(i) The Federal Republic should undertake not to create or permit the creation of forces which are in fact military or para-military beyond or other than those necessary to provide for its agreed contribution to the Western defense system. This undertaking applies equally to police forces.

[(ii) The Federal Government should undertake (a) not to produce, or permit the production of, the articles the prohibition of which was provided for in the Brussels Agreement and (in order to make effective the prohibition of military aircraft) civil aircraft, and (b) not to engage in or to permit scientific research relating to these prohibited articles; except as agreed in either case with the three Allied Powers in the interest of NATO. US/UK]

[(ii) The three Governments are in agreement that in fields not dealt with by the European defense community, certain activities of an [Page 1200] industrial or scientific character should continue to be prohibited or limited.

The nature and scope of these prohibitions and limitations, which should be adapted to the situation created by the participation of Federal Germany in defense should be established before the Rome Conference by expert conversations at the Governmental level. Fr]6

(iii) The Federal Republic should also undertake to maintain controls in the field of atomic energy, the character and scope of which will be determined later, and these should be specified in the contractual arrangements, and to adopt such additional measures as may be necessary to provide effective security checks on persons engaged in activities in the field of atomic energy.

(iv) The Federal Republic should undertake to provide such information as the Allies may require regarding the matters specified in (i), (ii) and (iii) above, and to permit its verification. There should be no Allied control agency in the security field. However, provision should be made for the establishment of an Allied body subordinate to the Council of Ambassadors which will be concerned with problems arising in regard to the undertakings of the Federal Republic. This body would have, on the basis of the contractual arrangements, the necessary authority to obtain and verify information and carry on such inspections as may be authorized by the Council of Ambassadors. It would report to the Council of Ambassadors any evidences of German violation of the security undertakings and recommend action with respect thereto.

If the High Commission and the Federal Republic, as a result of their negotiations, consider it desirable, there should be a formal relationship between the Allied body and the German authorities for the purpose of providing a means of dealing with problems arising between the Allies and the Germans in this field. This formal relationship might be accomplished by associating representatives of the Federal Republic with the Allied body in a mixed commission. The mixed commission would deal with matters relating to the execution of the contractual arrangements with respect to security safeguards, obtaining and verifying information, and possibly some inspections. The German representatives, however, would not be associated with the Allied body in its reports and recommendations to the Council of Ambassadors or other activities which relate to purported violations of the arrangements.

B. Civil Aviation

Allied controls over civil aviation should be abandoned but the contractual arrangements should ensure operating rights in the Federal Republic by flag carriers of the Three Powers operating to Berlin. The Federal Republic should be required to give assurances of non-discriminatory treatment with respect to flying and landing rights for [Page 1201] aircraft of non-Soviet orbit countries, to conform with internationally accepted standards in the field of civil aviation and to maintain existing rights of flag carriers of such countries for a reasonable period pending the conclusion of bilateral civil aviation agreements.* Provision should be made in appropriate agreements on security arrangements to insure that civil aviation does not become the basis for the creation of a German strategic air force.

C. Soviet and Satellite Aircraft

The Allies should continue control provided under existing quadripartite agreements over all overflights of the Federal Republic territory by Soviet civil and military planes. Assurances of cooperation in the implementation of Allied policies respecting civil aircraft of Soviet Satellite countries will be sought from the Federal Republic and will be apart from the contractual arrangements. The Federal Republic should undertake not to permit military aircraft of Soviet satellite countries to overfly its territory without the consent of the Allies.

These matters relating to Satellite Aircraft should be handled confidentially.

8. Preservation of Democracy.

[No rights of intervention in the constitutional system of the Federal Republic should be retained. However, it should be understood, that the arrangements as a whole are premised on the continued existence in the Federal Republic of a constitutional system guaranteeing democratic government and protecting individual liberties. The inclusion of appropriate language in the preamble to the General Convention would draw attention to this fact. U.S./U.K.]

[The Federal Republic should give an undertaking regarding the preservation of democracy which would permit the Allies to have recourse to the Arbitral Tribunal, without having to invoke a state of emergency. Proclamation of a state of emergency would be of too serious a character and would constitute too obvious a political failure on the part of the Allies to be a practical method for dealing with this problem. It is, moreover, possible that the Federal Government would not be opposed to the inclusion of a provision of this character in the contractual arrangements. Fr.]7

9. Allied Emergency Powers.

In the exercise of Allied powers in the event of emergencies the advice and, when employment of troops is involved, the agreement of the appropriate military authorities must be a prerequisite to action by the Council of Ambassadors to declare a state of emergency. The [Page 1202] text of provisions in the General Agreement regarding the exercise of Allied powers in the event of emergencies is to be included in the final contractual arrangements.8

10. Retention of Allied Powers

The supreme authority assumed by the Allies in the Declaration of June 5, 1945, will be exercised only in order: (a) to discharge their responsibilities regarding Germany as a whole, including the unification of Germany and the final peace settlement; (b) to deal with questions relating to Berlin; and (c) to station forces in Germany and to protect the security of these forces. It is understood and must be made clear to the Germans that the responsibilities referred to in (a) above include the obligations of the Allies expressed in international agreements relating to Germany as to which the Federal Republic does not assume responsibility by virtue of the contractual arrangements.

As the agreements are intended to define the new relationship between the Allied Powers and the Federal Republic the areas within which the exercise of supreme authority is retained should be specified in the agreements. Even though included in the agreement this specification should be made by Allied declaration and in such manner as to avoid the implication that supreme authority rests on a contractual basis. The determination of the scope of the powers retained by the Allies should not be subject to arbitration.

11. Character of the Agreements

While the agreements between the Three Powers on the one hand and the Federal Republic on the other will not constitute a treaty of peace, they should take the form of intergovernmental agreements which would enter into force as a whole immediately upon the entry into force of the agreement providing for German participation in Western defense. The agreements should be drawn in such form as to ensure these results and to indicate their binding character upon the four governments. Their legal status within each of the signatory countries will necessarily be determined by the constitutional arrangements within that country. In the case of Germany, they should be approved by the German legislature, as required by the Basic Law.

12. Logistical and Financial Support of the Allied Forces

1. These subjects should be covered by a contract to be worked out in the greatest detail possible before the conclusion of the contractual arrangements.

[2. The Federal Republic should undertake to make a total contribution to the costs of defense which will represent a use of German [Page 1203] resources for defense to an extent comparable to the use by the other principal “Western countries of their resources for defense (including expenditures outside Europe). This contribution will consist of agreed costs borne by the Federal Government of raising and supporting forces contributed by Germany to the common defense (German costs); as well as of US/Fr] [agreed costs in Germany of supporting Allied forces stationed in that country (Allied costs). US] [lump sum to be determined for the support of Allied forces stationed in Germany. Fr] [The Ministers believe that a contribution in both of these fields would be equitable in view of the fact that the Federal Republic does not have extra-European commitments and should take into account the provisions of the future treaty for the European Defense Community regarding the contribution of the Federal Republic. US/Fr]9

[3. The amount of the German contribution shall from time to time be determined by agreement between the Federal Republic and the three Allied Powers in accordance with the standard described in the preceding paragraph. To the extent that at any time these negotiations disclose that the total of agreed “Allied costs” and agreed “German costs” exceed the amount of the agreed German contribution, the balance will be borne by the Allied Powers concerned, and shall be shared among them on an equitable basis to be mutually agreed. US]

[In general terms, the contract should provide that Germany is required to make a total contribution to defense which is comparable in scale to that being made by other leading Western Powers and which will provide for essential Allied expenditure in Germany as well as that part of the cost of equipping and maintaining a German Military Force which will fall on the German Government. It should also provide that the proportions to be devoted to each of these two objects should be determined from time to time by the Four Governments concerned. UK]10

[Page 1204]

13. Security of the Allied Forces

a. Offenses Against Allied Security

The Germans should undertake in the agreements to try in their courts offenses against Allied security by non-Allied persons other than those serving with the Allied forces and subject to their jurisdiction; and to enact or preserve appropriate legislation to protect Allied security. [Such offenses may be withdrawn in exceptional cases from German courts and tried by Allied military courts, regardless of the nationality of the offender. US/Fr]11

b. Expulsions

The German proposal should be accepted.

14. Legal Status of Certain Allied Personnel

Allied nationals attached to the three Ambassadors and their dependents should be accorded those privileges and immunities which they would enjoy under normal diplomatic practice.

15. Allied Tribunals

Occupation courts, except military courts, should be abolished as soon as pending cases have been completed.

16. Reparation

The reserved power on reparation should be terminated on condition that the Federal Government recognize themselves to be bound by such agreements on reparation, and to accept to maintain the Divesting Law and such other Allied legislation in this field, as may prove necessary to safeguard. The agreements and legislation in question shall be specified by the High Commission who in so doing shall take into account potential allied requirements in respect of Portugal, Switzerland and Austria. A clause should be included in the appropriate agreement maintaining the rights reserved in Article 2 B of the Paris Reparation Agreement12 with respect to the reparation settlement.

While the Foreign Ministers appreciate the difficulty which this subject involves for the Federal Government, the Governments of the Three Allied Powers have assumed international commitments in this field which can only be given effect in Germany and which they must therefore insist be assumed by the Federal Government.

17. Foreign Interests

The reports of the Intergovernmental Study Group concerning foreign interests are approved with the following changes in IGG/P(51)41 Second Revise:13

[Page 1205]

a) The first sentence of Recommendation 1(a) is amended by inserting “in its present condition” after “… United Nations and their nationals shall be enabled to secure the return of their property …”

b) The following language is added at the end of Recommendation 1(a):

“The Federal Government shall be informed in the course of the negotiations on foreign interests that the undertaking is without prejudice to the right of the Allies to advance, at an appropriate time, claims for losses attributable to discriminatory treatment of the property, rights and interests involved and of property situated in territories purported to have been annexed by the Reich during the war.”

c) Recommendation 1(b) is eliminated.

Appropriate clauses should be included in the contractual arrangement.

18. Internal Restitution

Action should immediately be taken by the appropriate Allied authorities in Germany to ensure the adoption of measures of compensation for victims of Nazi persecution in those Laender in which no such measures are presently in force, and this requirement should be confirmed in the contractual arrangements. The contractual arrangements should provide for the harmonization, the application, and the maintenance of such laws throughout the Federal territory on a basis no less favorable than that provided in the laws in effect at the present time. The High Commissioners should inform the Federal Chancellor and other appropriate German leaders that, in the view of the Three Foreign Ministers, the failure of the Federal Republic thus far to provide any significant measure of compensation to victims of Nazi persecution, including those resident abroad, constitutes a major obstacle to the acceptance of the German people by the free peoples of the world as equal partners in their activities. The Foreign Ministers regard the obligation to make compensation as a matter which should rest heavily on the conscience of the German people and they feel it should not be necessary for the Allied Governments to lay down requirements as to the measures which should be taken to discharge this obligation.

III

19. The High Commissioners should be guided by the following instructions in regard to the areas of particular disagreement with the German representatives listed in Section V of the Report and not dealt with above.

[Page 1206]

20. Reaffirmation of Existing Commitments

The Commitments specified by the Foreign Ministers in September 195014 as a condition to the abandonment of the reserved power on Displaced Persons and Refugees (other than those relating to compensation for victims of Nazi persecution) should be included in the contractual arrangements. Commitments regarding strategic commodities control are not considered as appropriate subjects for submission to arbitration. The commitments regarding raw materials previously given by the Federal Republic need not be reaffirmed.

21. Definition of Allied Personnel Benefiting from Immunities

The Three Governments still have this subject under consideration. They will unilaterally instruct their High Commissioners at the earliest possible moment, so that a final tripartite position may be arrived at in the High Commission.

22. Persons Sentenced by Allied Courts

The High Commission’s position should be maintained with respect to persons sentenced for offenses against Allied personnel or property or against the Allied administration. In all other cases, the German authorities should have the right to determine measures of clemency and parole. (This does not apply to war criminals, but the Three Ministers request the High Commissioners to examine and make recommendations urgently on the future handling of war criminals in Germany.)

23. Jurisdiction over Allied Personnel in Civil Cases

The position of the High Commission is approved, but withdrawal of civil cases should only be on certificate of the highest military and diplomatic authorities of the Allied Power concerned that the security interests of the Allied forces would be jeopardized by such trial, or that special conditions exist which, in their opinion, would prejudice a fair trial.

IV

24. In addition to their decisions on the points raised by the High Commission in its report, the Foreign Ministers have reached the following conclusions:

a. Information and Statistics

They have noted that the High Commission proposed to include in the general convention provisions regarding submission of information and statistics. In their view, these provisions should be included in the appropriate conventions, such as those on security, programs, and logistical support.

[Page 1207]

b. Observance of Agreements

It is essential that these agreements be observed and carried out by the political sub-divisions of the Federal Republic as well as by the Federal Government. The High Commission in drafting the agreements should see to it that they are binding on the political subdivisions and that the Federal Government can ensure execution by them.

c. Berlin

Although the Three Powers will retain supreme authority with respect to questions relating to Berlin, and such authority will not be affected by the contractual agreements with the Federal Republic, the High Commissioners should, in consultation with the three Allied Commandants in Berlin, examine the conditions of Allied control in Berlin in the light of the arrangements contemplated with respect to the Federal Republic with a view to granting the Berlin governmental authorities the maximum possible authority consonant with such arrangements and with the conditions obtaining in Berlin. As recommended by the High Commission the suspension of Article 23 and 144 (2) of the Basic Law should be continued by legally effective methods.

d. Deconcentration

The Ministers approve the recommendation of the High Commission regarding the carrying out of Law 27.15 They recognize that the implementation of Law 27 is an essential condition to the establishment of the steel and coal community and will not be affected by the entry into force of the Schuman Plan or the abolition of the Occupation Statute. The control groups will be continued under the contractual arrangements, but after the entry into force of the Schuman Plan will exercise only those functions which are strictly necessary to deconcentration and will terminate their activity as soon as the deconcentration program has reached a sufficiently advanced stage. It would be desirable that steps should be taken to insure that certain former Nazis will be effectively excluded from positions of ownership or management in the Ruhr industries. The High Commission should study the methods of accomplishing this result.

e. Enforcement of Contractual Arrangements

The Foreign Ministers approve the recommendations of the Allied High Commission for the setting up of an Arbitral Tribunal with the following modifications:—

(i)
The composition proposed by the High Commission is likely in practice to throw too great a burden of responsibility upon the Presiding Officer. The proposal of the United States Element that the Tribunal should consist of nine members is therefore accepted.
(ii)
In the event that a defaulting party should fail to carry out a decision of the Tribunal within the time specified by the Tribunal, the Tribunal could, at the request of the complainant [Page 1208] party, authorize the latter to take specific steps to remedy the situation.

f. Possible Claims by Germans

The annexed conventions shall include undertakings from the Federal Republic along the lines proposed by the Intergovernmental Study Group in paragraphs 2 and 6 of IGG/P(51)91 Final.16

g. Soviet Missions

The High Commission should make clear to the Germans by appropriate means, but not in the contractual arrangements, that in the discharge of the responsibilities of the Three Powers concerning Germany as a whole, the representatives of the Three Powers may continue to receive Soviet missions, and that all immunities and facilities should be accorded by the Federal Republic to such missions.17

V

25. The Ministers consider that in general the recommendations of the Report as to the form of the contractual arrangements are satisfactory. They stress the importance of the general agreement which should reflect the new arrangements in such, a way as clearly to impress upon the general public the nature of the new relationship being established with the Federal Republic. The Ministers have reached general agreement upon the form and content of a draft General Agreement which is annexed hereto and they desire that this draft be used in discussions with the German representatives. The High Commission will, if necessary, point out to the Germans the various respects in which the draft of a security treaty suggested by the Chancellor18 is incompatible with the present instructions.

26. It is planned that a meeting of the North Atlantic Treaty Council will be held in Rome at the end of October. The Ministers are agreed [Page 1209] that they will seek final decisions at that time on the question of German participation in defense and they are in accord that the participating Powers should be requested to complete the plans for a European Defense Force by that date, in order to permit German association in defense upon the safest and most European basis possible. It is in accord with our own interests and with German desires to reach a final solution of the question of the Federal Republic’s political status concurrently with rather than separate from the making of defense arrangements. Therefore, the High Commissioners should make every effort to complete their negotiations on the questions covered in their Report well prior to the scheduled meeting of the North Atlantic Treaty Council. It is the intention of the Ministers to meet in Europe and to invite the German Chancellor to join them immediately prior to the North Atlantic Treaty Council meeting in order to arrive at a final understanding on both the contractual agreements and defense arrangements. [Last sentence reserved for the Ministers’ decision]19

27. In view of this timetable, the High Commissioners are directed to report to their Governments without delay any disagreements which may arise regarding the contractual arrangements after receipt of the present instructions, and which are not covered by the present instructions.

Enclosure A

secret

Agreement on General Relations With the Federal Republic

preamble

Whereas a peaceful and prosperous European community of nations firmly bound to the other free nations of the world through dedication to the principles of the Charter of the United Nations, can be attained only through united support and defense of the common freedom and the common heritage;

Whereas the achievement of a fully free and unified Germany through peaceful means and in the framework of a peace settlement, though prevented for the present by measures beyond their control, remains a fundamental and common goal of the Federal Republic and of the United States, the United Kingdom and France;

[Page 1210]

Whereas the four Governments, while determined to defend themselves against aggression, are moved by a common will to promote peace and harmony among nations, to eliminate war and foster justice for all men, and intend to follow common policies in pursuit of these aims;

Whereas the Federal Republic is determined and is, indeed, committed, under its Basic Law, to maintain a system of government which is democratic and federal in character and which guarantees the rights of the individual, and has developed free and responsible political institutions;

Whereas the Federal Republic shares with the United States, the United Kingdom and France a determination to abide by the principles of the Universal Declaration of Human Rights;

Whereas the Federal Republic has manifested by practical steps, and in particular by adhering to the European Steel and Coal Community [as well as the European Defense Community, US/Fr]20 its determination to establish with the other nations of Western Europe a free and peaceful community and to associate itself with the free nations of the world;

Now therefore, the United States of America, the United Kingdom of Great Britain and Northern Ireland, and France, on the one hand, and the Federal Republic of Germany, on the other, have agreed on the following convention which will establish, pending the peaceful reunification of Germany, the basis for a new relationship between them:

article i

The United States, the United Kingdom and France, hereinafter referred to as the Three Powers, hereby agree that, upon the coming into force of this Agreement, and with the exceptions hereinafter set forth, the Federal Republic will have full authority over its domestic and external affairs.

article ii

1. The Three Powers declare that, while retaining in the common interest, in view of the international situation, the right to exercise the authority assumed with respect to Germany in the Declaration of June 5, 1945 to the extent necessary to (a) discharge their responsibilities regarding Germany as a whole, including the unification of Germany and a peace settlement; (b) to deal with questions relating to Berlin; and (c) to station forces in Germany and to protect the security of these forces, they renounce the exercise of this authority in all other respects.

[Page 1211]

2. The Three Powers declare that they will consult with the Federal Republic in regard to exercise of this authority with respect to questions relating to the discharge of their responsibilities regarding Germany as a whole, including the unification of Germany and a peace settlement, and with respect to questions relating to Berlin.

3. The Federal Republic and the Laender will refrain from any action prejudicial to the special authority of the Three Powers.

article iii

1. Upon the entry into force of this Agreement, the Three Powers will revoke the Occupation Statute and abolish the Allied High Commission.

2. Relations between each of the Three Powers and the Federal Republic will thenceforth be conducted through Ambassadors. The Ambassadors of the Three Powers accredited to the Federal Republic or, in their absence, their representatives, will sit as a Council of Ambassadors to deal with any matters affecting Germany which require tripartite consideration.

article iv

1. The Federal Republic, in the conduct of its foreign relations, and, pending the peaceful reunification of Germany, in the conduct of its relations with other parts of Germany, agrees to abide by the principles set forth in the Charter of the United Nations which guide the community of free nations throughout the world, and by the aims defined in the Statute of the Council of Europe. The Federal Republic affirms its intention to associate itself fully with the community of free nations through membership in international organizations contributing to the common aims of the free world. The Three Powers will support applications for such membership by the Federal Republic in all appropriate cases.

2. At the request of the Government of the Federal Republic, the Governments of the Three Powers will arrange to represent the interests of the Federal Republic in relations with other states and in certain international organizations or conferences, whenever the Federal Republic is not in a position to do so itself.

article v

(There will later be inserted here an appropriately worded article by which the Federal Republic undertakes to the Three Powers to contribute to Western defense.)

US Proposal—Reserved for Discussion by the Ministers. [The United States, the United Kingdom, France and the Federal Republic mutually agree that for a period of ten years or longer, as may subsequently be agreed, an armed attack on the territory of the Federal Republic or of Berlin or on the defense forces stationed in such territory [Page 1212] will be considered as an attack against all the signatory powers.]21

article vi

The Federal Republic will facilitate the task of the Three Powers in the discharge of their special responsibilities with regard to Berlin. To this end it agrees to continue to aid the political, cultural, economic and financial reconstruction of Berlin. In particular, it agrees to render, to the maximum extent possible, assistance required for the economic maintenance and development and the security of Berlin, to provide for coordination with Berlin on monetary and fiscal policies, and to assure the participation of Berlin in trade negotiations and trade relations.

article vii

The Three Powers declare that they will exercise their special authority to protect the security of their forces referred to in Article II in order to proclaim a state of emergency in the whole or any part of the Federal territory and to act thereunder only in accordance with the following provisions:

1.
In the event of an attack or threat of attack on the territory of the Federal Republic or Berlin, such authority of the Three Powers may be employed by the Council of Ambassadors to declare a state of emergency in all or in part of the territory of the Federal Republic. Such a state of emergency may be declared upon the request of the Supreme Commander, acting in the interests of the North Atlantic Treaty Organization, or upon the initiative of the Council itself.
2.
In the event that the security of the forces of the Three Powers in Germany is deemed to be seriously endangered by a grave disruption of public or constitutional order or a grave threat of such disruption, the Council of Ambassadors may likewise employ such authority to declare a state of emergency in all or in part of the territory of the Federal Republic. They shall act in this case only if they find that the German authorities are unable to deal effectively with the situation.
3.
This authority may also be employed in the circumstances specified in (1) or (2) above to declare a state of emergency on the request of the Federal republic.22
4.
Upon the declaration of a state of emergency, the authority retained by the Three Powers may be employed to take all measures which they deem necessary to deal with the emergency. They will terminate the state of emergency as soon as the situation permits.
5.
The Council of Ambassadors, before declaring a state of emergency, will consult to the fullest extent possible with the Government of the Federal Republic and will utilize to the greatest possible extent [Page 1213] the assistant of the Federal Government and the competent German authorities to deal with the emergency.

article vii a

[The Federal Republic undertakes to maintain the democratic and federal character of its political institutions, to take all necessary measures to safeguard human rights, as they are defined in the Basic Law, by recourse to the courts, and not to allow the creation of a secret police organization, or to allow the police to exercise legislative or judicial powers, or to exercise political control, or to lose their decentralized structure.

Article 29 of the Basic Law will continue to be suspended until otherwise decided by the Council of Ambassadors. Fr]23

article viii

The Three Powers on the one hand and the Federal Republic on the other have signed certain Agreements listed in Annex A hereof which are to take effect upon the coming into force of this Agreement.

article ix

1. There is hereby established an Arbitration Tribunal, which shall be constituted, shall have the powers, and shall exercise its functions, in accordance with the annexed Charter.

2. Except as otherwise provided in paragraph (3) below, or in any of the Agreements listed in Annex A, the Arbitration Tribunal shall have exclusive jurisdiction over all disputes arising under this Agreement or any such listed Agreement, which the parties fail to settle by negotiations.

3. No action taken under the provisions of Article II or Article VII of this Agreement shall be made the subject of any arbitration or other proceeding before the Arbitration Tribunal or before any other tribunal or court.

article x

1. This Agreement shall be ratified by the States which sign it. The instruments of ratification shall be deposited by the signatory States with the Government of the ———. This Agreement shall come into force immediately upon:

a.
the deposit by all parties of ratifications of this Agreement and of all the Agreements listed in Annex A, and
b.
the coming into force of the treaty relating to German participation in Western Defense.

2. This Agreement shall be deposited in the Archives of the Government of the ——— which shall furnish each signatory State [Page 1214] with a certified copy thereof and notify each such State of the date of the coming into force of this Agreement.

In faith whereof the undersigned Plenipotentiaries have signed this Agreement.

Done at ——— this ——— day of ——— 1951, in the English, French, and German languages, all being equally authentic.

Note: Annex A referred to in this document is not yet available and therefore is not included in this draft.

  1. The source text was attached to a cover sheet, not printed, which indicated that it had been revised during the tripartite preliminary talks and that the disagreed passages were indicated by brackets.
  2. An earlier draft of this paper, WFM T–5, dated August 29, not printed, had been prepared in GER and distributed within the Department of State and to the British and French. It was the basis of discussion for the tripartite preliminary talks. (GFM files, lot M–88, box 158, WFM tripartite talks)
  3. Post, p. 1501.
  4. For text of the Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by the Allied Powers, signed at Berlin on June 5, 1945, see Department of State Treaties and Other International Acts Series (TIAS) No. 1520, or 60 Stat. 1649; or Documents on Germany, 1944–1970, Washington, Government Printing Office, 1971, pp. 12–17.
  5. Brackets throughout this document appear in the source text. In the final draft of this paper, Tripartite D–3, approved by the Foreign Ministers on September 13, this sentence read:

    “A basic assumption on which the Ministers have acted is that the fulfillment of these conditions will be achieved without delay through the proposed European Defense Force, which will form a part of the joint defense established under the North Atlantic Treaty Organization.” (CFM files, lot M–88, box 158, WFM tripartite documents)

    The other textual differences between WFM T–5a and Tripartite D–3 are indicated in subsequent footnotes.

  6. In the final version of this paper, Tripartite D–3, approved by the Foreign Ministers on September 13, the US/UK draft of paragraph 7, subparagraph ii, was adopted with the addition of the following sentence:

    “The above prohibitions should be clarified and defined as required as quickly as possible, and in any event before the Rome Conference, through discussion by experts at the governmental level.” (CFM files, lot M–88, box 158, WFM tripartite documents)

  7. Rights respecting Allied military aircraft will be dealt with under the heading of Logistical Support. [Footnote in the source text.]
  8. In Tripartite D–3, the Foreign Ministers approved the US/UK draft of paragraph 8 (CFM files, lot M–88, box 158, WFM tripartite documents).
  9. In Tripartite D–3 the Foreign Ministers rejected paragraph 9 as agreed during the preliminary talks and substituted the following:

    “9. Allied Emergency Powers

    This is covered by Article VII of the annexed draft general agreement.” (CFM files, lot M–88, box 158, WFM tripartite documents)

  10. After the setting up of a European Defense Community the expression “Allied Forces” will apply also to European units contributed by those powers members of the community which have at the present time troops in Germany. [Footnote in the source text.]
  11. In Tripartite D–3 the Foreign Ministers approved the first sentence of the “US/Fr draft of paragraph 12, subparagraph 2, for the whole text of the paragraph (CFM files, lot M–88, box 158, WFM tripartite documents).
  12. In Tripartite D–3 the Foreign Ministers approved the following text for paragraph 12 subparagraph 3:

    “3. Representatives of the three Governments should meet as soon as possible in order to prepare recommendations to the Governments for dealing with the aspects of these subjects on which agreement has not yet been reached. The recommendations should be prepared urgently with a view to permitting discussions with the Federal Government at the earnest possible date. The representatives of the three Governments may refer to the High Commission consideration of any aspects of these questions which they believe can be most effectively dealt with in Germany.” (CFM files, lot M–88, box 158, WFM tripartite documents)

  13. In Tripartite D–3 the Foreign Ministers approved the US/Fr draft of this sentence (CFM files, lot M–88, box 158, WFM tripartite documents).
  14. For text of the Paris Reparations Agreement, January 24, 1946, see TIAS No. 1635, or 61 Stat. (pt. 3) 3012.
  15. Not printed. For further documentation on the work of the Intergovernmental Study Group on Germany, see pp. 1344 ff.
  16. For documentation on the Foreign Ministers’ decisions on refugees and displaced persons at their meeting in New York, September 12–19, 1950, see Foreign Relations, 1950, vol. iii, pp. 1108 ff.
  17. For the text of Allied High Commission Law No. 27, “Reorganization of German Coal and Iron and Steel Industries,” dated May 16, 1950, and the three regulations thereto, see Laws, Regulations, Directives and Decisions, vol. i, pp. 155–178.
  18. Not printed.
  19. In Tripartite D–3, the Foreign Ministers approved the text of a subparagraph h which read:

    h. Security Guarantee

    The Ministers have considered the advisability of reaffirming the security declaration made at New York on September 19, 1950. A tentative suggestion was advanced by the U.S. Delegation that the following language might be used for this purpose:

    ‘On 19 September 1950, the three Foreign Ministers declared that their Governments would treat any attack against the Federal Republic or Berlin from any quarter as an attack upon themselves. The change in the status of the Federal Republic and in the mission of the Allied forces there does not alter or diminish the effect of that declaration.’

    It was agreed to leave open for the present the question of the advisability of placing such a statement in Article V of the General Convention, or of advancing it as part of a separate declaration by the Governments, or of handling it in some other manner. It was also agreed that the Governments would take this question urgently under consideration, but that meanwhile the High Commissioners could explore the problem with the Federal Chancellor in light of the Ministers discussion;” (CFM files, lot M–88, box 158, WFM tripartite documents)

  20. For the text of the draft security treaty proposed by Chancellor Adenauer on August 30, see telegram 2026 from Frankfurt, August 31, p. 1520.
  21. In Tripartite D–3 the last sentence of this paragraph as approved by the Foreign Ministers read:

    “It is the intention of the Ministers to meet in Europe and to invite the German Chancellor to join them in order to arrive at a final understanding on both the contractual agreements and defense arrangements.” (CFM files, lot M–88, box 158, WFM tripartite documents)

  22. In Tripartite D–3 the Foreign Ministers approved the US/Fr draft of this phrase (CFM files, lot M–88, box 158, WFM tripartite documents).
  23. In Tripartite D–3 the text of Article V was limited to the sentence within the parentheses and no mention was made of the US proposal (CFM files, lot M–88, box 158, WFM tripartite documents).
  24. In Tripartite D–3 the Foreign Ministers approved the following wording for Article VII paragraph 3 “This authority may also be employed to declare a state of emergency on the request of the Federal Republic.” (CFM files, lot M–88, box 158, WFM tripartite documents)
  25. Article VII A was deleted by the Foreign Ministers from the text of Tripartite D–3 (CFM files, lot M–88, box 158, WFM tripartite documents).