662A.00/11–351: Telegram

The Acting Secretary of State to the Office of the United States High Commissioner for Germany, at Bonn1

secret   priority

208. Fol are comments on draft Gen Agrmt Bonn’s 316 Nov 3:2

(1) Note draft contains no preamble, but assume preamble attached FonMins instructions will be retained.

(2) Re Art I(2) assume phrase “internatl agrmts” includes Declaration June 5, 1945. See Deptel 155 Oct 24 rptd Fkft 2598, London 2173, Paris 2410.3 Feel Gers shld understand this clearly and therefore suggest interpretative minute to Gen Agrmt.

(3) Further re Art I(2) we believe provision that Allies retain existing rights and FedRep recognizes these rights might later give grounds for claim rights were placed on contractual basis. In this connection we are less concerned with geniune ambiguity, than with possible Ger attempt to limit effect of agrmt. Accordingly suggest language be used such as that already agreed for Art V(l), to effect that present convention and related conventions “shall not affect existing rights”.

(4) Be Art II(3) consider undesirable refer publicly to “states of eastern bloc”. Believe also phrase “Ger interests” is too broad. Since Gers probably intended this provision only for their protection in event of Allied exercise of supreme auth, Dept prefers language Art II (3) draft agrmt attached FonMins instructions.

(5) Be Art III(l), we have objection already expressed para (3) above in connection Art I(2). In addition, believe it legally unnecessary and politically disagreeable to repeat reservation of Allied rights in Arts III(l), IV(1), V(l), and VI(1). Omission these provisions wld shorten agrmt and make it less insistent on supreme auth. In our view Art III shld start with agreed sentence which states that mission of armed forces will be for defense.

(6) Alternative Ger proposal in Art III(1) is objectionable because it conveys possible atmosphere of contract since FedRep “agrees” that Three Powers have right to station forces in Ger.

(7) Art III(2) is satisfactory with or without phrase in parenthesis suggested by Gers.

(8) Consider Art III(3) not acceptable. Ger commitment to Three Powers to participate in common defense shld be broader than promise to participate in European Defense Community and shld refer to Atlantic [Page 1573] Defense system. In other words, primary commitment in broad but specific terms shld be to contribute to common defense. Additional commitment shld cover form of contribution through specific org (EDF). Suggest you adopt fol language in Art IV (a) Ger Contractual No. 4 Aug 184 or its equivalent: “The Federal Republic, in recognition of its community of interests with other free nations of the world, agrees to participate in the North Atlantic collective security system, through contribution to the European Defense Force. This participation will be on a basis acceptable to the European Defense Organization, the North Atlantic Treaty Council and the Federal Republic. This step will be taken immediately upon the coming into force of the present Agreement.”

(9) Re Art IV(1) see para (5) above.

(10) You must have had reason for doing so but seems to us your draft has fundamentally altered character of Art IV. Orig draft spelled out manner in which Three Powers wld act under state of emergency. New draft broadens this to spell out manner in which we wld exercise our entire right to protect troops’ security. It thus has become dangerously limitative and we believe this point need not be covered. Sub-paras (1) and (7) limit exercise of security power to provisions of conventions and thereby appear to place it on contractual basis. Wld think paras (1) and (7) shld be dropped and in that case para (6) shld also be dropped as unnecessary, since the Art wld then revert once more to description of exercise of power in status of emergency. Have not had time to clear this point with Defense.5

(11) Re Art IV(2) believe Allied proposal to specify Three Powers may proclaim state of emergency if “they find that” security is endangered is essential.

(12) Re Art IV(2) do not see why mention of EDF necessary if emergency arises because of internal disorder, although recognize possibility that under future EDC treaty EDF might be made responsible for maintaining internal order in member states. If emergency arises because of external threat or attack it appears to us NATO forces rather than FedRep or EDF wld have to deal with situation. Wld not suppose in these circumstances that finding of inability to meet attack or threat wld be necessary before declaring emergency. If ref to EDC eliminated, words “by itself” shld also be dropped from Allied proposal as unnecessary.

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(13) Point raised footnote Art IV(4) covered separate tel this date.6

(14) Re Art V(l) see comment paras (3) and (5) above.

(15) V(2) acceptable, but re footnote do not believe legal opinion can be regarded as legally binding.

(16) Re Art VI(1) see comment para (5) above.

(17) Re Art VI(2) do not understand omission of reference to Schuman Plan, which is also essential step to integration FedRep into Western Community.

(18) Re Allied and Ger proposals for provision concerning future Tights and obligations of united Ger in Art VI(2), Dept does not believe this point has any place in present agrmt. We are attempting to confer new status upon FedRep, rather than define future status of United Ger. Conditions of Ger unification are impossible to predict. Nothing in present agrmt can bind either future Ger govt or Sov Union and net effect of either version suggested is therefore to commit three govts to extend rights and benefits to unknown future govt without any corresponding assurance of obligations to be assumed by that Govt. If you consider provision like this absolutely necessary believe language similar to fol shld be used “They agree that a united Ger shall be entitled to the rights and benefits under treaties and conventions made by the FedRep provided it shall assume the obligations of the FedRep thereunder”.

(19) Re Art VIII see Deptel 163 Oct 277 and separate tel mentioned para (12) above.

(20) Re Art IX see tel mentioned para (12) above.

(21) Re Art X, preferable from technical point of view omit work “plenipotentiaries” and substitute “representatives duly authorized thereto”.

Webb
  1. This telegram was drafted by Auchincloss, and repeated to London, Paris, and Frankfurt.
  2. Supra.
  3. Ante, p. 1563.
  4. A copy of GER Contractual No. 4, “Agreement on General Relations With the Federal Republic,” dated August 18, not printed, is in the CFM files, lot M–88, box 184, GER Contractual.
  5. In telegram 226 to Bonn, November 7, McCloy was advised that the Department of Defense had indicated its general agreement with the positions taken in this telegram (662A.00/11–751).
  6. Telegram 207 to Bonn (662A.00/11–351). It stated that the Department of State had “serious objections to any method of subjecting declaration of emergency to review ex post facto.” Washington would be willing to allow some formulation providing for a report to the NATO Council so long as the language involved indicated that the report was for information only. The telegram also stated that the general agreement should not have any language which would emphasize its “temporary or transitional character,” since the Department of State hoped that the general agreement would govern relations with the Federal Republic until a peace settlement.
  7. Not printed; in it McCloy was advised that the Department of State was reluctant to accept any proposal which would lead to frequent appeals to the Arbitration Tribunal. (398.10–GDC/10–2451)