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

662A.00/1–352: Telegram

The United States High Commissioner for Germany (McCloy) to the Secretary of State

secret   priority

Bonn, January 3, 1952—9 p. m.

943. For Byroade. Your Deptel 797.¹ In the fol sections which deal with the individual conventions separately we have analyzed in some detail progress achieved as well as major points now at issue. Despite number of latter which must still be listed we are convinced that sufficient progress has now been made to warrant reasonable hope that, with possible exception of some parts of financial contributions, supplementary conventions can be concluded by next NATO meeting. German negotiators are now anxious to finish by that date and are working hard to that end. As individual points of importance are isolated which can not be settled by rapporteurs or steering comite, we plan to bring them to Chancellor’s attention and he had indicated that he is willing to have as many meetings as are necessary to settle them.

There are several issues which are still unagreed tripartitely and UK element here now seems to attach less importance to conclusion of negotiations by Feb 2. It may be helpful in course of discussions with Churchill, [if] he were asked to send instructions to Kirkpatrick to press ahead all along the line.² We recognize there is still considerable to be done but are prepared to work straight through to meet deadline.

Section A.

The draft charter arbitration tribunal dated 20 [21] Dec shows substantial Allied-German agreement on all issues except Article IX (jurisdiction) and Article XI (powers).³

Parties agree that Article IX will be based on relevant provisions of Article IX of general agreement and of specific provisions of related conventions which may exclude particular matters from jurisdiction of tribunal. Definitive text of this article can only be prepared when related conventions have been completed.

Re Article XI.

Germans conceded if losing party fails to take measures necessary to rectify situation, as and within period specified by tribunal, tribunal may authorize winning party itself to take corresponding measures. However, it is not clear whether Germans would regard this language as empowering tribunal to authorize Allies to promulgate legislation. Should German del, as expected, object to this power, UK and US would prefer provision giving decrees of tribunal itself force of law, French would prefer Allies be authorized to promulgate legislation.

Language of para 4 Article XI, on annulling legislation or administrative acts will be reworded to make it clear that it applies only to acts taken in Fed Rep.

No agreement yet reached re power of tribunal to review judicial decisions. Solution depends partly on settlement reached in status agreement. Germans have been told Allies could not permit tribunal to quash verdicts of their courts-martial.

No tripartite agreement yet on question of capacity of one ally to act without consent of other two. UK awaiting new instructions our last proposal.

Section B. Acts and interests.

Agreement on acts, interest, etc. presents different problem. Several parts nearly completed in substance and form (e.g., internal restitution, excluding charter supreme restitution court; compensation for Nazi persecutees; external restitution; displaced persons; claims against Germany). Problems requiring some further negotiation remain in general provisions; material aid to Berlin and civil aviation. No meeting yet held on possible claims against foreign nations or nationals. This part now needs further tripartite discussion because of recent authorization to include waiver postwar claims with which we agree. Greatest difficulties with Germans appear in deconcentration, composition of supreme restitution court, reparation and foreign interests. Question of composition of restitution court, and of exemption UN nationals from Lastenausgleich to be presented to steering comite this Saturday for resolution of substantive points. While substantial progress made in negotiations on deconcentration and reparation, many obvious difficulties still remain which believe can be resolved by Jan 20, barring change in apparent German attitudes. Charter of arbitral commission on foreign interests to require time for completion. Believe we can properly hope for completion negotiations and drafting this entire agreement before end of Jan although British and French at rapporteur level informally estimate Feb 10.

Section C. Status Agreement.

US rep believes this 75 percent agreed on quantitative basis although several major questions not settled. These include:

(a) Whether status agreement applies to contingents of new powers later brought in or whether Germans may make separate agreements.

(b) Status of dependents with special reference their subjection to German criminal jurisdiction.

(c) Withdrawal of civil and criminal cases or substitution of arbitral appeal system.

(d) Solution of intelligence problems; Germans sympathetic to objectives but difficulty over adequate language in agreement which will be publicly debated and special difficulty over security arrest interrogation trials and protection of voluntary informers.

(e) Taxation on automobiles, consumable imports and of miscellaneous license taxes.

(f) Possible differences over new criminal legislation concerning offenses against security.

(g) Labor service companies.

Despite formidable appearance this foregoing list, Germans have been so cooperative in seeking solutions that we expect agreement at rapporteur or steering comite level on most of these problems, and probably solution at HICOM–Chancellor level although difficult to be sure about dependents, intelligence questions and withdrawal versus arbitration. In any event, we think this can be finalized at steering comite level during week of Jan 14 and any remaining questions referred that week to HICOM–Chancellor negotiations.

Section D. Rights of the Forces.

Originally part of logistics and financial support, now intended to be part of status convention and presently limited to enumeration of rights of forces in respect to accommodations, goods, services and labor, air facilities, communications, hunting and fishing, civilian services units and general rights. Draft delivered to Germans before Christmas⁴ and we may receive their comments at meeting Jan 4. Since discussion in hands of those dealing with status of troops, we expect reasonable approach and do not presently anticipate great difficulty since procedure for implementation of these rights, under negotiation in financial contribution group, seem to offer more room for controversy than statement of rights themselves. This is subject to exception respecting radio frequencies. German attitudes toward procedural aspects may however adversely affect discussion on rights themselves.

One provision not presently set forth in our draft is that dealing with pre-emergency action and removing this from the arbitration procedure. This presents special problem which will probably have to be settled at HICOM–Chancellor level.

While it is unsafe to project developments where discussion not even commenced, we see no reason why this should not be incorporated in the status agreement before Jan 26, subject to uncertainty concerning radio frequencies and the pre-emergency clause.

Section E. Financial Contribution.⁵

As further important meeting rapporteur group being held today, review this section will be telegraphed separately tomorrow.

Section F. Security safeguards.

According to info from Paris Schuman and Adenauer discussed this question.⁶ They reached no conclusion but both seem to feel they can work out satisfactory solution acceptable to them and to both US and UK. Hallstein has said issue was largely formal since Germans did not expect or desire to produce any of weapons now under discussion. French are understood to be sending Poncet instructions to continue their talks with Chancellor keeping Kirkpatrick and myself informed. As French now seem prepared to adopt more reasonable attitude than previously I suggest we encourage these discussions and intervene only at latter stage if circumstances require. Poncet fully informed our position. I plan to discuss subject further with Chancellor tomorrow and shall report more fully as to results his Paris talks.

Section G. Miscellaneous.

War criminals—UK proposal (see Bonn’s 863, Dec 24⁷) is latest suggestion for solution this difficult problem. British are convinced Germans can take custody without specific recognition of validity of sentences but further discussions have been postponed pending replies from US and French Govts.

Civil establishments—UK pressing for additional agreement providing for temporary support of civil establishments and retention of certain existing facilities in Fed Rep including consular and residence premises at rent scales to be agreed. French and ourselves have expressed willingness to discuss such convention with Germans.

McCloy

1. Not printed; in it Byroade asked McCloy for his estimate of the status of the contractual relations negotiations including his forecast of where the talks would stand by the time of the next meeting of NATO at Lisbon in February 1952. (662A.00/12–2751)
2. Documentation on Prime Minister Churchill’s talks with President Truman at Washington in January 1952 is scheduled for publication in a subsequent volume of Foreign Relations.
3. A copy of this draft, not printed, is in the CFM files, lot M–88, box 187, draft convention, charter of the arbitration tribunal.
4. The draft under reference here has not been identified further.
5. For further documentation on the negotiations concerning a German financial contribution to defense, see pp. 1647 ff.
6. For a report on Adenauer’s conversation with Schuman at the EDC Foreign Ministers meeting at Paris, December 27–30, see telegram 3868, December 29, p. 981.
7. Not printed; it proposed that the Federal Republic take responsibility for the custody of war criminals and that the Federal Republic should be invited to appoint a representative to the clemency tribunal (662A.0026/12–2451).