662A.00/3–1452: Telegram

No. 9
The Secretary of State to the Office of the United States High Commissioner for Germany, at Bonn 1


2068. In course of gen discussion in Dept Hallstein observed that provisions which impair Ger legislative sovereignty will offer greatest obstacle to Bundestag approval contractual arrangements. We [Page 14] understand from your 1806 Mar 3 rptd London 486 Paris 812 and your 1898 Mar 10 rptd London 509 Paris 6093 that fol questions are most important of this kind:

Gers object to requirement that FedRep undertake promulgate legis along particular lines or maintain certain occupation legis in effect. We agree Allied position that maintenance of certain legis or its equivalent is essential factor in proposed agreements. Your 1898 indicates solution this difficulty may be found in recognition by Bundestag that such measures fall within scope “technical liquidation measures” referred to in para 3 of Sixth Bundestag Res. This wld appear sensible result.
Difficulty also arises from Allied proposal to give Arbitration Tribunal legislative power. This wld be exercised in situation where FedRep refused comply with Tribunal decision, either by failing to repeal or annul certain laws or even (in unusual case) by failing to enact certain legis. Dept has already taken position that three powers shld not have legislative capacity in this kind of situation (Deptels 415 Nov 26 and 840 Dec 294) and still believes Allied right to legislate wld be inconsistent with new contractual relationship. We have come to doubt whether essential for Arbitration Tribunal to have legislative power, because we are not convinced this power wld be effective in hands of Tribunal, or at least effective enough to be worth pressing in final stage of negots. Issuance of Tribunal decree with force of legis wld only occur if orig decision completely disregarded. If polit situation such as to cause this, a further decree repealing or enacting legis wld probably be attended by such resentment on part of Gers that it too wld be disregarded. For example, Ger law might well remain on books in spite of Tribunal’s decree, and Ger auths might fail to punish individuals for taking action permitted by such law. Problem is one of enforcing Tribunal decisions, and we do not see how this problem wld be solved, after a particular decision had been flouted, by translating that decision into legislative decree which wld in turn raise question of enforcement over Ger reluctance. Since Tribunal will deal with sovereign govts it cannot be expected to have as effective enforcement of its decrees as domestic courts which deal with individuals and which have executive arm of same govt charged with obtaining compliance from such individuals. To endow Tribunal with legislative capacity will not result in giving it executive enforcement power as well. Dept inclined believe, therefore, even in absence of alternative procedure, that legislative power of Tribunal is [Page 15] not sufficiently important for our purposes to insist upon it over serious Ger opposition and at possible risk to early agreement on final Ger ratification.

  1. Drafted by Auchincloss and cleared with Margolies, Raymond, and Calhoun. Repeated to London and Paris.
  2. Not printed. (662A.00/3–352)
  3. Not printed. (740.5/3–1052)
  4. Neither printed. (662A.0011/11–2251 and 12–2451)