Foreign Relations of the United States, 1951, European Security and the German Question, Volume III, Part 2

740.5/8–1351

Report of the Allied High Commission for Germany Concerning the Establishment of a New Relationship Between the Allied Powers and Germany¹

secret

[Bonn,] August 9, 1951.

HICOM/P(51)69 Final

I. Introduction

1. The Foreign Ministers, at their December meeting in Brussels, instructed the High Commissioners to elaborate in broad terms, for consideration by their governments, a general outline of arrangements to be made with the Federal Republic of Germany, which would reflect changes in the present occupation regime by reason of Germany’s participation in Western European defense. The goal was to be the establishment of relations between the Occupying Powers and Germany on as broad a contractual basis as possible, excepting such matters as can be resolved only in a peace settlement. The problems involved in working out such a relationship were to be explored with the Germans.

2. The High Commission, after breaking down the general problem into a list of specific topics, proceeded, with the help of its experts and in liaison with the respective military Commanders, to consider and discuss each topic with a view to arriving at a unanimous recommendation as to whether a contractual provision would be necessary and, if so, what it should contain in order to dispose of the particular problem under the new relationship.

3. After an initial communication to the Federal Chancellor of the substance of the Brussels decisions, the High Commission transmitted to the Federal Government for study its tentative list of problems. Thereafter, when both the High Commission and the Federal Government had made some progress in the formulation of their views, there was initiated a series of exploratory discussions with the representatives of the Federal Government. Ten such meetings have been held. It has been made clear throughout that neither Allied nor German statements bound the respective governments, since the task of both the High Commission and the German delegation was simply to formulate recommendations to their Governments. In some cases, the exchange of views has resulted in minimizing or eliminating differences. It should be stressed also that the German delegation has been given clearly to understand that all important aspects of the new relationship are postulated on the assumption of German participation in the defense of the West.

4. Pursuant to the terms of reference laid down at Brussels, certain problems which involved the interests of powers other than the three Allies, were referred to the Intergovernmental Study Group. These included restitution (internal and external), reparations, foreign interests in Germany, claims against Germany and possible claims by Germany, controls over the Ruhr, and procedure for dealing with the interests of other powers in connection with contractual arrangements. The question of claims against Germany is now being dealt with by the Tripartite Commission on German Debts in London.² The question of controls over the Ruhr, as such, is being considered in discussions among the three powers and Benelux growing out of the Schuman. The reports of the Intergovernmental Study Group, insofar as they have been agreed by the governments, have been used in the discussions with the German delegation. For convenience their substance has been summarized in the appropriate Annexes.³

5. This report summarizes the views of the High Commission on the fundamental principles underlying the new relationship, on the contents and form of the proposed contractual arrangement, and outlines the German attitude, so far as that has been developed in the joint discussions. It attempts also to formulate for decision by the governments the important issues still outstanding, both among the Allies themselves and between them and the German delegation.

6. This report includes Annexes giving in detail the views of the High Commissioners as to the substantive contents of the provisions of the proposed contractual arrangements. Where the High Commissioners could not reach agreement, the separate views of the High Commissioners appear in the appropriate column. German views on the various issues are given in the last column of these Annexes.

II. Agreed General Principles Underlying the High Commission’s Recommendations

The recommendations of the High Commission as to the new relationship to be established with the Federal Republic of Germany are founded on certain basic concepts. These concepts are:

1. The Allies will retain Supreme Authority, and will identify the fields in which they will exercise it. The High Commission is unanimous in believing that the following fields do not form proper subjects for contractual agreements:

(a) Allied responsibilities relating to Germany as a whole, including the ultimate peace treaty and the reunification of Germany;

(b) the right to maintain forces in the Territory of the Federal Republic and, in emergencies, to take any steps necessary to Allied security;

(c) the right to take part in the occupation of Berlin;

(d) the right to deprive Control Council laws of effect in the Territory of the Federal Republic;

(e) the right to implement international agreements affecting Germany, the obligations of which Germany does not assume under the contractual arrangements.

In some of these fields it will be possible to describe the circumstances and to specify the manner in which Supreme Authority will be exercised, though it will be for the Allies to determine whether the circumstances requiring exercise of Supreme Authority exist. There are important differences of opinion among the Allies on two points: whether Supreme Authority will continue to be exercised in certain fields not mentioned above, and how to identify and describe the fields in which it will continue to be exercised. These differences are analyzed in Section IV of this report.

2. In fields in which contracts are concluded, the agreements will be binding upon both the Allies and the Germans and the exercise of Supreme Authority in those fields will thereby be renounced by the Allies. The agreements must be ratified by the Bundestag and Bundesrat in order to be effective under German law.

3. Upon the entry into effect of the agreements, the Occupation Statute will be abolished and the Allied High Commission replaced by a Council of Ambassadors. Before that stage the three governments will need to agree upon a charter for this Council of Ambassadors.

4. The High Commission considers that in the event of disputes arising out of the contracts, resort should first be had to discussions between the parties. If redress could not be secured in the context of these discussions then either party might refer to an arbitral tribunal. The tribunal would have power to order either party within a stated time to take any action necessary to correct a violation found to exist and to authorise the complainant itself to take specific direct action to redress the wrong in the event of the defaulting party’s failure to comply.

The High Commission agrees that recourse to the International Court at The Hague is excluded in all questions arising from the contractual arrangements, and that the arbitration tribunal established by the agreement itself should have sole competence.

6. The contractual arrangements will not be open to accession by other powers.

III. General Principles Underlying the German Attitude

1. The general theory which permeates the German viewpoint is that the agreements should contain no provisions which would not be appropriate in a treaty between equal and sovereign states, such as a treaty among the NATO countries. The German delegation argued that a contract which apparently leaves Germany in the status of a subordinate power could not hope to attract a large majority in the Bundestag. The German delegation has, however, recognized the existence of certain special problems.

2. The German delegation has sometimes, without formally withdrawing them, indicated that its fundamental statements of position are not to be regarded as inflexible. While in most cases it has not indicated just how far from its original position it is prepared to go, in several instances it has modified an original position in order to meet the Allies. Examples are given in the three following paragraphs.

3. In discussing the status of Allied forces in Germany, the German delegation has said that “the physical requirements of the Allied troops …⁴ as well as their legal status should …⁴ be adapted to conditions customary in similar international situations whenever troops of a foreign state are stationed in the territory of another state for purposes other than military ‘occupation’ proper”. But subsequent detailed German proposals in this field would give the Allied forces somewhat greater rights than have normally been accorded to visiting friendly forces. The Allies would, under the German proposal, exercise exclusive criminal jurisdiction and a degree of civil jurisdiction over members of their forces; these are broader immunities than would, for example, be provided under the proposed NATO agreement. Similarly the German proposals would permit Allied Military Police to arrest German civilians in “emergencies threatening the maintenance of military order”.

4. The German delegation has expressed the view that there should be no further controls, whether through the exercise of residual Supreme Authority or by contract, analogous to those presently exercised by the Allies in the fields of scientific research, industry and civil aviation. But, in response to a statement that the three governments will probably consider some such controls necessary, the German delegation stated that it might be able to agree upon a contract providing for such limited controls as it might find politically and constitutionally feasible. The delegation said, however, that, if these controls were extensive, the terms of the Basic Law or political considerations would probably prevent the Federal Government from concluding contracts in these fields. The delegation added that if the Allies then insisted upon unilateral controls, the effect upon the whole complex of contractual agreements would be very serious. (The field of disarmament and demilitarization was not discussed in these conversations since it was the subject of other discussions at the Petersberg and in Paris.)

5. The Germans have demanded “constitutional autonomy”—i.e., complete freedom from external intervention in the German governmental process. The delegation has asserted that the possession of any legislative power by the Council of Ambassadors is inconsistent with the nature of such a Council. On the other hand, it is willing to consider Allied power to take “special action” in emergencies to be declared only with the consent of the Federal Government. This would seem necessarily to include the exercise of certain legislative functions. Similarly, the delegation has expressed agreement in principle with Allied arbitration proposals, under which the arbitration tribunal could order the Federal Government not to enforce and to repeal legislation inconsistent with the contract. It has agreed to submit to arbitration the exercise of such normal attributes of sovereignty as expulsion and the granting of extradition. It at least recognizes the special problems presented by Berlin.

6. The German delegation has stated that it has maintained liaison with the appropriate Bundestag committees. Nevertheless, it is obvious that the influence of the German political parties and in particular the opposition parties will make itself felt in the future negotiations. The public demand for “equality of rights” (Gleichberechtigung) makes it clear that this influence will work in the direction of greater demands rather than less.

IV. Major Intra-Allied Disagreements

The Annexes show that the High Commission has reached agreement over a wide field. The major issues among the Allies which must be resolved by the governments are the following:—

(1) security controls

The U.S. and U.K. High Commissioners believe that the contractual arrangement should provide for such minimum controls as security may require in the fields of Disarmament and Demilitarization, Scientific Research, Industry and Civil Aviation. The French High Commissioner believes that such controls should continue to be based on reserved powers exercised through Allied legislation and enforced by the Military Security Board. But he does not exclude, to the extent that the Federal Government would be ready to agree, the negotiation of contractual arrangements providing for German participation in the exercise of some of these controls. In either case it will be necessary for the governments to decide on the controls to be retained in the light of the form of Germany’s defense contribution.

(2) preservation of democracy

The French High Commissioner recommends the inclusion of a provision whereby the Germans would, as a fundamental condition of the agreements, commit themselves to maintain a basically democratic and federal form of government, in which civil liberties are protected, and the decentralized structure of the police preserved. Violation of this provision would enable the Allies to invoke the arbitration machinery. The U.S. and U.K. High Commissioners, while favoring some such declaration of intent in the preamble, would not retain the possibility of any Allied intervention in the German constitutional system, except in emergencies in which the security of the Federal Republic or of the Allies was affected. In the opinion of the U.S. High Commissioner, security would be affected by a clear and present danger to the fundamentally democratic character of the Federal Republic.

(3) description of the areas in which supreme authority will be retained

All three High Commissioners are agreed that the Supreme Authority cannot be placed upon a contractual basis, but disagree on the manner in which the areas of residual Supreme Authority should be described. The U.S. and U.K. High Commissioners consider that these areas should be identified in the contractual arrangements, the language being carefully phrased to avoid any implication that the authority itself rested on a contractual basis. The French High Commissioner considers that at the time when the contractual arrangements are concluded, but outside their context, the Allies should specify these areas in a formal notification to the Federal Government. He considers that their description in a negotiated contractual arrangement would imply that Supreme Authority itself rested on a contractual basis.

(4) character of the agreements

All three High Commissioners consider that the agreements should be between the U.S., France and the U.K., on the one hand, and Germany on the other. The U.S. and U.K. High Commissioners believe that the agreements should be treated in the same manner as an ordinary treaty for the purposes of signature, ratification and deposit. The French High Commissioner believes that the agreements have a special character by reason of the Allies’ position in Germany and the Federal Republic’s consequent lack of full sovereignty, and that this would affect the form of signature and the questions of ratification and deposit.

(5) logistical and financial support of the allied forces

The High Commission has not been able to agree upon recommendations concerning the conclusion of a contractual arrangement relating to the financing and logistical support of the Allied troops in Germany. The U.S. and U.K. High Commissioners consider that these questions should at some future date be regulated by a contractual arrangement. The French High Commissioner considers that Occupation Costs should not be so regulated. The French and U.K. High Commissioners do not think it possible to determine the contents of any agreements in this field until a decision has been taken on the nature and timing of a German contribution to Western defense. The U.S. High Commissioner believes that it is possible and desirable to make recommendations now as to the contents of a contractual arrangement, and has done so, as set forth in the appropriate Annex. He recognizes, however, that a final decision can be taken only when the terms of the German contribution are settled.

(6) security of the allied forces

(a) Offences against Allied Security

The three High Commissioners agree that the contract should provide for German legislation punishing offences against Allied security, but disagree as to how far the Allies should rely solely on the German authorities to prosecute offences thereunder by Germans and other persons not within exclusive Allied jurisdiction. The U.K. High Commissioner considers that a stage will have been reached at which the Allies should retain no jurisdiction to try Germans. The U.S. High Commissioner considers that normally offences against Allied security should be tried in German courts, but that the Allies must have a right to withdraw from German jurisdiction and try in their own courts exceptionally serious offences against their security. The French High Commissioner considers that certain exceptionally serious offences should remain in principle within the sole competence of the Allied courts but that the German courts may be specially authorized to exercise jurisdiction. He considers that all other offences against Allied security should be treated as proposed by the U.S. High Commissioner.

(b) Expulsions

There is also a difference of view concerning the right of the Allies to demand the expulsion from Germany of persons not within exclusive Allied jurisdiction. The U.S. and U.K. High Commissioners are prepared to accept a German proposal that where the German authorities do not agree to expel at Allied request the matter should be submitted to arbitration. The French High Commissioner, however, considers that the Allies should, under the contract, maintain the right to require the Germans to expel on serious security grounds persons not within exclusive Allied jurisdiction. The French High Commissioner takes the view that the question whether Allied security will be prejudiced should not be left for decision by an arbitral tribunal.

(7) legal status of allied personnel

The three High Commissioners are not in agreement as to the status of Allied nationals serving with the Council of Ambassadors, and their dependents. The U.S. and French High Commissioners would provide for such persons the same privileges and immunities as would be provided for Allied military personnel, whereas the U.K. High Commissioner believes that these persons should enjoy only those facilities or immunities which they would enjoy under normal diplomatic practices.

(8) allied tribunals

The U.S. and French High Commissioners believe that in the exercise by the Allies of such jurisdiction as may be retained by them under the agreements, each Ally must under its own law determine the tribunals appropriate. They would undertake to provide tribunals to try any case withdrawn from German jurisdiction. The U.K. High Commissioner believes that the agreement should provide for the abolition of all Allied Tribunals in Germany with the exception of courts-martial.

(9) reparations

The U.S. and U.K. High Commissioners believe that without prejudice to a final peace treaty the reserved power in this field could be relinquished on conditions to be specified in a contract. The French High Commissioner considers that a reserved power should be retained.

(10) foreign interests

The three High Commissioners have been unable to discuss contractual arrangements in this field pending the settlement by governments of the disagreements in the report of the Intergovernmental Study Group. These disagreements concern the property rights and interests in the Territory of the Federal Republic of United Nations nationals which were impaired through discriminatory action between 1 September 1939 and 8 May 1945. The French and U.K. governments consider that in so far as these property rights and interests cannot be restored, the Federal Republic should undertake to pay compensation in Deutsche Mark. The French Government considers, moreover, that the general undertaking which would be required of the Federal Republic should extend to those areas annexed by Germany during the war. The U.S. Government considers that no such undertakings should be required, since in its view this matter has been regulated by the Final Act of the Paris Conference on Reparations.

(11) internal restitution

The Intergovernmental Study Group was unable to agree upon the requirements to be asked of the Federal Government in connection with compensation for victims of Nazi persecution. The High Commission is still unable to solve this problem and consequently has been unable to define the extent of the obligation which the Germans should be required to assume in this field in connection with the conclusion of the contractual arrangements.

V. Allied-German Differences on Particular Points

There are, of course, as appears from the Annexes, numerous differences of detail between the German and Allied positions. Wherever the High Commission has deemed it feasible, it has modified its initial views to take account of the views of the German delegation.

While the discussions so far have not permitted clear definition of the Allied and German differences on all points, the following important differences have emerged:

1. state of emergency

The German delegation is prepared to consider that the Allies be empowered to take “special action” in emergencies, but maintains that the consent of the Federal Government should be obtained before a state of emergency is declared. The Allies, while willing to consult so far as possible with the Federal Government, are unwilling to make its consent a prerequisite to declaring a state of emergency.

2. security controls

As above indicated, the German delegation has taken the position that there should be no further controls of any sort in the areas of scientific research and industry. The High Commission has informed the German delegation that in its opinion the three Governments will regard some such controls as essential.

3. reparations

Notwithstanding their different views on the question of reparations, as stated in Section IV, the three High Commissioners believe that provisions should be made in the context of the contractual arrangements for recognition by the Federal Republic that it is bound by certain international agreements which have been or will be concluded jointly by the three Powers on the subject of reparations and German external assets. The German delegation has raised very strong objections against such recognition, especially as regards the Safehaven Accords. It has stated that a provision of this sort would be calculated to wreck the acceptance by the Bundestag of the envisaged system of contractual arrangements.

4. reaffirmation of existing commitments

The German delegation is generally reluctant to repeat in the contractual arrangement commitments which the Federal Government has already given in other contexts. This point arises in connection with proposed contracts in the fields of allocation of materials in short supply, strategic commodities export controls and D.P.s and refugees. The High Commission would wish to see these existing commitments brought within the scope of the enforcement provisions of the contractual arrangements.

5. definition of allied personnel benefiting from immunities

While all three High Commissioners believe that the immunities from jurisdiction and taxation of uniformed members of the Allied Armed Forces should be extended to other persons accompanying or serving with the Forces, including dependents, the German delegation would not extend these immunities to dependents.

6. persons sentenced by allied courts

The High Commissioners consider that measures of clemency and parole for persons sentenced by Allied courts, but confined in German institutions, should be reserved to the Allied Authorities, acting on the advice of mixed Allied-German Commissions. The German delegation believes that such measures should be within the province of the German authorities.

7. jurisdiction over allied personnel in civil cases

The German delegation would make German courts exclusively competent in all civil cases save those which involve only Allied personnel or claims against the Allied Forces. The High Commission, on the other hand, believes that the Allies should have power exceptionally to withdraw from German jurisdiction civil cases involving Allied personnel.

VI. Form of the Arrangements

The High Commission recommends that the subjects which the governments agree to place on a contractual basis should be grouped for this purpose in a small number of arrangements.

1. An arrangement, which could be called a General Convention, would contain a: preamble reciting the purposes of the contractual arrangements; it would refer to the abolition of the Occupation Statute; it could contain the provisions of general application approved by the governments regarding the preservation of democracy, the state of emergency, information and statistics required by the Allies, the establishment of an arbitral tribunal, the repeal of Allied legislation, and the validity of certain acts of the Allied Authorities. It would contain in addition an article referring to the other Conventions and emphasizing that the various Conventions constitute a single whole and will come into force together.

2. The Charter of the Arbitral Tribunal could either be attached as an Annex to a General Convention, or as a separate Convention.

3. An arrangement, which could be called a Convention on Security Controls, and which would refer to decisions concerning Germany’s military participation in Western defense, would contain provisions approved by the governments regarding the allocation of materials in short supply, the export of strategic commodities, limitations in the military and industrial fields, controls over scientific research, civil aviation and radio frequencies.

4. An arrangement, which could be called a Convention on the Status and Protection of Members of the Allied Forces, would contain

(a) a definition of Allied personnel, together with provisions concerning the privileges and immunities of members of the Allied Forces, especially as regards criminal and civil jurisdiction, including arrests, taxation and customs, property, currency and scrip and official acts;

(b) provisions concerning the inviolability of Allied installations and archives, the powers of Allied police, cooperation of German authorities with Allied police, prevention of offences against the security of the Allied Forces, execution of sentences imposed by Allied courts, extraditions, expulsions, and nondiscrimination against persons cooperating with the Allies.

5. An arrangement, which could be called a Convention on Logistical and Financial Assistance to the Allied Forces, could contain provisions approved by the governments concerning goods and services in money or kind made available to the Allied Forces; it would contain in addition provisions regarding the fiscal immunities of the Allied Forces in Germany and claims against the Allied Forces.

6. Either a General Convention or an arrangement, which could be called a Convention on the Foreign Relations of the Federal Republic and its Relations with Other Parts of Germany, would contain provisions’ concerning the undertakings requested of the Federal Government relating to the conduct of its relations with foreign countries and with other parts of Germany, and respect for certain international agreements. It would contain, in addition, provisions regarding material and financial aid to be furnished to Berlin by the Federal Republic.

It will be for decision at the appropriate time whether the above provisions should be contained in a separate Convention or in a General Convention.

7. An arrangement, which could be called a Convention on Allied Programs in Germany and the Protection of Certain Interests, would contain provisions approved by the governments concerning the validity of certain acts of the Allied Authorities, decartelization, deconcentration, restitutions, reparations, German debts, foreign interests in Germany and Displaced Persons and refugees.

The structure of the contractual arrangements outlined above has not been discussed with the Germans. However, the German delegation has been informed that the Allies envisage the establishment of the contractual relationship on the basis of a small number of arrangements.

N.B. The detailed questions which need to be considered in relation to the above paragraphs are set out in Annexes which give the views of each High Commissioner and, where known, of the German delegation, upon them. These Annexes are numbered to correspond with the paragraphs above.

VII. Conclusion

1. The High Commission would hope to receive from the governments decisions resolving Allied differences revealed in Section IV above.

2. Where there now exists a conflict between an agreed Allied position and the German position as shown in Section V above, the High Commission assumes that if the governments wish to modify the Allied position they will so instruct the High Commission.

3. On the basis of such decisions any remaining differences could quickly be settled within the High Commission. The three elements would then be able to begin negotiations with the Federal Government, the aim of which would be the conclusion of contractual arrangements, to become effective in conjunction with the definitive arrangements concerning German participation in Western defense.

1. Attached to the source text were a letter of transmittal and a note by the Allied General Secretariat, neither printed, which stated that the report was the result of the request made by the Foreign Ministers at Brussels. The report was drafted by the Special Committee on August 5 and approved by the Council on August 9. For a report on its consideration before the Council, see telegram 106, infra.
2. Regarding the Tripartite Commission on the German Debt, see pp. 990 ff.
3. None of the seven annexes tinder reference is printed.
4. Omissions in the source text.
4. Omissions in the source text.