740.5/3–2454: Telegram
The Ambassador in France (Dillon) to the Department of State 1
priority
3499. Following is rough translation of note mentioned last paragraph, Embtel 3483:2
“Additional protocols to the treaty instituting a European Defense Community.
1. When the additional protocols were drawn up in February and March 1953, it was agreed by the six Foreign Ministers that these protocols would be interpretative but that they would have the same legal force as the treaty itself and the annexes signed on May 27, 1952.
2. The French Foreign Minister confirmed the position of its government as it concerned the legal force of these protocols in the following terms:
- a.
- In his speech before the Conseil de la Republique on October
29, 1953:
‘I want to tell the Senate that these protocols are destined to have the same force as the treaty and its annexes. I believe I can say today that they will be signed by the Foreign Ministers of the six countries as were the treaty and its annexes on May 27, 1952.
‘Insofar as France is concerned, our constitutional procedure obliges us to submit to the Parliament the whole of the texts instituting the community, that is to say the treaty, its annexes and the additional protocols added on later. In each signatory country the ratification of these texts will take place according to its respective constitutional procedures.’
- b.
- In his speech to the National Assembly on November 20, 1953 in
the following terms:
‘I will not go into the details of these protocols which will be discussed at the same time as the treaty to which they refer. I will only say for the moment that they are to be signed by the Foreign Ministers of the six countries as was the treaty itself on May 27, 1952.
‘They will also be ratified by each signatory country according to its own constitutional procedure, that is to say, as concerns us, after the approval of Parliament.’
3. In order that the additional protocols may have the same legal force on the international level as the treaty, particularly since they do not appear in the list of annexes mentioned in Article 127, they must then require an action on the part of the authority which, in each of the interested countries, has the power to engage the country on the international level. That is, they must be signed in the name [Page 914] of the Chief of State. If the forms of ratification are different on the political level, that is, as concerns the existence or no of a parliamentary authorization, this ratification, in a form to be determined by each country, is no less indispensable on the part of the appropriate constitutional authority.
All other solutions, and in particular one which would consist of considering the protocols as simple government agreements not requiring the intervention of the authority expressly empowered by the constitution to engage the country, would not permit it to be maintained in France that the additional protocols have the same legal force as the treaty.
4. According to the terms of Article 59 of the fundamental law of Bonn, the President of the Federation represents, and thereby engages the country on the international level. This power is given to him alone by the fundamental law. Consequently, it is indispensable in order to comply with the considerations mentioned in the preceding paragraph that the additional protocols be signed in the name of the President of the Federal Republic.
5. Nevertheless, in order to allow for the difficulties that the Federal Government believes it has come upon if it applies to the case of the additional protocols an identical procedure to that followed for the treaty, requiring notably on the political level the passing of the bill in the Bundestag, it has been envisaged on the French side to try to find a solution which would reduce to a legally indispensable strict minimum the action as concerns the President of the Federation.
One might think that the fact Article 59 of the fundamental law enumerates in its paragraph 2 those treaties which must receive parliamentary approval before ratification shows ‘a contrario’ that the President’s power of ratification exists independently of legislative approval and could eventually exercise itself without this approval since one of the treaties cited expressly in Article 59 is not involved. This solution is that which prevails in France, for example, for the interpretation of the constitutional dispositions which are quite analogous to those of Article 59 of the fundamental law.
6. Since the German delegation to Paris raised doubts as to the political as well as to the juridical possibility of interpreting Article 59 of the fundamental law as we do, a compromise formula was envisaged by the French delegation. This formula would consist in the granting to the Federal Chancellor by the President of the Federal Republic full powers specially designed for the signature of the additional protocols. There would then certainly be, which is essential to us, an act on the part of the constitutionally competent authority to engage the Federation on the international level. But this formula, while citing Article 59 of the fundamental law, might not require the mention ‘under reserve of ratification’.
[Page 915]7. Such a solution represents the extreme limit of the concessions that the French Government can make without abandoning its position which has been stated several times before the two houses by the Foreign Minister. Since the political force of these protocols will in any case be challenged during the parliamentary discussion in France, seeing that the Bundestag had not examined them at the same time as the treaty and had expressed, insofar as they are concerned, reserves during the third reading of the treaty in March 1953, it is indispensable at least that their formal juridical force on the international level not be contested.”