Foreign Relations of the United States, 1952–1954, Germany and Austria, Volume VII, Part 1

662A.00/5–1452

No. 35
Memorandum by the Assistant Legal Adviser for German Affairs (Raymond) to the Deputy Director of the Bureau of German Affairs (Lewis)

secret

[Washington,] May 14, 1952.

Subject: Status of Contractual Arrangements

There is set forth below the latest information regarding the current status of the several conventions of the contractual arrangements.

General Convention

(1) The Germans have suggested changing the title to “Convention on Germany”. The Department has concurred but it is not known whether it has been finally agreed.

(2) The Department has raised the question of elimination or modification of the preamble dealing with the Declaration of Human Rights. It is understood there has been partial agreement on how to deal with the point but as far as is known there is not yet complete agreement.

(3) There remains to be drafted some reference in the preamble to the Schuman Plan and the EDC.

(4) The question of whether any reference is to be made in Article IV to the restrictions on military production and research is still unresolved.

(5) The Department has requested amendment of Article XI to include reference to “instruments of approval” as well as “instruments of ratification”. This matter has not yet been agreed.

(6) No reference is made to FDP objections set forth in Bonn 2673.¹

Charter of Arbitration Tribunal

(1) It has been suggested the title be changed to “supreme Arbitration Tribunal”. This has not yet been agreed.

(2) The Department has asked slight modification of Article II to avoid granting U.S. member complete immunity from any judicial process in the U.S. Appropriate modification has been proposed but not yet agreed.

(3) It is uncertain whether the provision regarding the appointment of neutral members can stand inasmuch as the president of the International Court has not agreed to assume this function. A new president is about to take office and the matter cannot be resolved until he can be consulted.

Material Aid to Berlin

This declaration which is to be annexed to the General Convention, has not been revised since 7 February. As of April 16 it was reported that paragraphs a, d, e and g were still disagreed.

Acts and Interests

Part I

(1) The war criminal article has been unsettled by recent German proposals. They have now declined to take custody at this time but at the same time wish the clemency board to be established and start functioning as soon as Germany ratifies the conventions, even though the rest of the conventions have not come into force. The Department has been unable to give HICOG its position as Defense is heavily interested and is waiting to hear from EUCOM. This issue will probably have to go to Ministers.

(2) A provision for immunities and privileges of Allied members of boards and tribunals established by the conventions remains to be drafted.

(3) The article requiring most-favored nation treatment on any subject in the convention has been elimnated but specific most-favored nation provisions may have to be drafted in connection with specific provisions of the convention.

(4) Article VIII dealing with radio frequencies is not yet agreed.

Part II

There is a final rapporteur draft, but there are two unsettled questions: (1) The DKV problem, which may have to go to Ministers, and (2) A question reserved by the French regarding the drafting of the provision making cross-reference to the Schuman Plan.

Part III

Only two points appear to be disagreed, both relating to the question of ten to one conversion of Reichsmark claims.

Part IV

There is a final rapporteur draft with no disagreement.

Part V

There is a final agreed draft revised by the Editorial Group, with no disagreement.

Part VI

This draft has been agreed at the High Commissioner-Chancellor level subject only to confirmation by Governments of the statement that the Three Powers will at no time assert a reparations claim against current production. Government confirmation has not yet been secured, as far as known.

Part VII

There is an agreed draft revised by the Editorial Group.

Part VIII

There is an agreed draft revised by the Editorial Group.

Part IX

The only disagreement relates to the federal assumption of responsibility for claims against JEIA and their agreement to hold us harmless. It is believed, however, this is agreed in principle.

Part X

There is a final rapporteur draft, but Article VI, paragraph 6 remains to be redrafted by experts.

Part XI

There is a final rapporteur draft, completely agreed, although one drafting point remains.

Part XII

There is a final draft revised by the Editorial Group, completely agreed.

Charter of the Arbitral Commission

(1) The question of the appointment of the neutral members by the president of the International Court raises the same problem as in the case of the arbitration tribunal.

(2) The section on immunities and privileges for the members remains to be drawn.

(3) The Department raised the point that the jurisdiction provision as now drafted deprives all U.S. courts of jurisdiction of any matter that might be presented to the tribunal. HICOG is attempting to straighten this out.

(4) There is an Allied dispute as to whether this is one of the related conventions or whether it is a separate document. It is not known just what is involved in this argument.

Rights and Obligations of Forces

Part I (General), Part III (Jurisdiction and Procedure in Criminal and Non-Criminal Proceedings) and Part IV (Public Order) are agreed as far as possible. Some further provisions will have to be inserted or redrafted after the rest of the convention has been finalized.

GEA has primary responsibility for Part II which is largely logistic support.

Adenauer has recently raised a basic question that this agreement should not apply to forces of members of the EDC. The method meeting his point has not yet been settled.

1. Telegram 2673 transmitted a list of FDP objections to the general convention as formulated by the party’s Executive Committee and Bundestag faction. A copy of the list was also sent to Chancellor Adenauer. It was based partly on substance and partly form which the FDP likened to a treaty of submission. (662A.00/5–552)