396.1–ISG/4–2451: Telegram
The United States Delegation at the Intergovernmental Study Group on Germany to the Secretary of State 1
Sigto 628. This tel will attempt report progress to date in area we had hoped to cover by general waiver of claims. As Dept is aware (Tosig 524, Apr 10, rptd Frankfort 68272) French unwillingness concede that FedRep has capacity to give general waiver has forced us to rely on piecemeal approach. As reported Sigto 596, Apr 15, rptd Frankfort 1107,3 one result this new approach has been agreement to divide problem of possible German claims into two parts: those arising out of actions taken before June 5, 1945 and those arising since that date. In addition, we are dealing separately with private German claims and claims advanced by FedRep.
A. Pre-1945 Private Claims
Steering comite has approved fol formula:
Without prejudice to terms final peace settlement with Germany, no claims of any description arising out of actions taken or authorized by govts [between September 1, 1939 and June 5, 1945 because of the] existence of a state of war in Europe shall be asserted in any manner by German nationals who owe allegiance to FedRep against those nations which at any time during that period were at war with Germany and which maintain relations with FedRep or against their nationals.
It has been agreed this rule could be established in two ways: (1) By undertaking from FedRep, or (2) by HICOM law which FedRep wld undertake maintain. US and UK have pressed for former method, partly on grounds doubts whether HICOM law can deal with claims outside scope of present reserved owners. Believe we have secured French concurrence to presenting second method in ISG report as less desirable alternative.
B. Post-1945 Private Claims
ISG will recommend that HICOM, in preparation for negotiating contractual arrangements, consider appropriate method for handling all potential claims of German individuals arising out of actions taken during occupation which will assure that claims that are not to be satisfied may not be asserted pending final peace settlement. (This will involve, e.g. review of ground now covered by HICOM Law 474). Re [Page 1406] post-1945 claims arising out of actions taken outside Germany, we have assumed that discussions on divesting law will result in agreement on provision dealing with external assets and that this will cover most important category claims which may arise outside Germany.
C. Pre-1945 Governmental Claims
French are prepared to agree to undertaking by FedRep to bar, pending peace treaty, governmental claims based on actions Allies prior June 5, 1945 provided wording consistent with proposition that FedRep does not have legal capacity assert such claims (since it is not successor to Reich). They are willing, e.g. to have formula in which FedRep “recognizes that, in absence of peace treaty, no governmental claims can be asserted, etc.” We have argued that undertaking need not require FedRep to deny capacity to assert pre-1945 claims (which wld be politically impossible for FedRep to accept) and are attempting draft wording which will accomplish result without precipitating debate on successorship.
Even if satisfactory language can be found we have some doubts re need for undertaking. Attempt by FedRep to present a case in Hague Court seems both unlikely and without much chance success. Possibility of diplomatic pressure on smaller countries may make it desirable, however, press for some form of waiver. Wld be helpful if Dept cld reconsider and comment on this point.