Foreign Relations of the United States, 1948, Germany and Austria, Volume II

CFM Files: Lot M–88: Box 121: File—Occupation Statute

Report of the Military Governors of the Western Zones of Occupation of Germany to the Governments of France, the United States, and the United Kingdom ¹

secret

[Frankfurt,] 17 December 1948.

Appendix “A” to TRIB/P (48) 14/1
TOS/P(48)1/6

1. In accordance with the approved recommendations of the Six-Power Conference on Germany held in London in 1948, and the provisions of Appendix I to their Report,² the Military Governors of the French, US and British Zones of Occupation in Germany have prepared the attached draft Occupation Statute³ for the German territory under their control.

2. Agreement was reached on the form and most of the substance of the Statute subject to an agreement on the whole; it is to be supplemented by letters of interpretation or Minutes to be exchanged among the Military Governors, or their Governments.

3. Several points of disagreement, however, still exist. These are as follows:

a. Article II, paragraph 2(b)

The US Military Governor prefers his version of this sub-paragraph, because it more nearly adheres to the text of the London Agreement, and because its broad terms are deemed necessary for the protection of US interests at the present time.

The UK Military Governor prefers a more specific language; since he considers that the text should state definitely that it is for the Military Governors to decide the extent of the control to be maintained.

The French Military Governor is willing to accept either the US or the British version.

b. Article II, paragraph 2(i)

The French and US Military Governors wish to continue to ensure the protection, maintenance, and repatriation and resettlement of displaced persons, while the UK Military Governor wishes to limit the responsibility of the Military Governors to the strict observance of agreements with the International Refugee Organisation.

c. Article III, paragraph 5

The French Military Governor believes that the German authorities should only legislate in reserved fields after the express authorisation of Military Government. In this case, the authority to legislate will be subject to the following conditions:

(i) German enactments which will have the effect of amending the legislation of the Occupation Authorities will have to be submitted for the prior approval of the Military Governors, as provided in the first sentence of paragraph 4 of the Statute;

(ii) German legislation which may be enacted in any field not covered by legislation of the Occupation Authorities will become law if approved within the delay provided in the second sentence of paragraph 4 of the Statute.

The US Military Governor believes it necessary clearly to authorise the German governments to exercise concurrent legislative jurisdiction in the fields reserved to Military Government; to require those governments to obtain prior approval for legislation in those fields would seriously restrict effective governmental operation.

The British Military Governor believes it necessary to authorise German governments to legislate on economic and possibly other matters covered by Article II without seeking the prior express authorisation of the Military Governors, such legislation being subject only to their disapproval. Failure to disapprove will be considered the presumption of German competence to legislate on these matters.

d. Article IV, paragraph 9

The US and UK Military Governors consider that consular representatives for the protection of the interests of German nationals abroad should be established by the German authorities under regulations approved by the Occupation Authorities, while the French Military Governor considers this measure to be premature.

The US Military Governor proposes the following compromise solution: Delete the UK/US text in brackets and substitute “The Commercial representatives may be given such other functions as the Occupation Authorities may agree”. The French Military Governor agrees to this proposal, pending final confirmation by his Government.

e. Article V, paragraph 14

The French and US Military Governors desire to exclude from German jurisdiction, civil cases which involve any non-German person mentioned in paragraph 13(d) of the draft Statute, unless specifically authorised by the Occupation Authorities. The UK Military Governor admits the competence of German courts under certain circumstances.

f. Article VII, paragraphs 20 and 21

The US and UK Military Governors wish to require the payment of all Occupation Costs and Mandatory Expenditures by the Federal State government, while reserving the right to require the satisfaction of other requirements from the Laender governments.

The French Military Governor considers that a maximum of financial powers should be granted to the Laender, and that therefore Occupation Costs, Mandatory Expenditures or other requirements of the Occupation should be assumed by the Laender, the Federal Government intervening only to ensure an equitable apportionment.

g. Article VIII,paragraphs 23

The US and UK Military Governors consider that the judicial body established to interpret the provisions of this Statute should consist of Allied, neutral and German members. The French Military Governor considers that representation should be restricted to the Allied Powers.

The US and UK Military Governors consider that the decisions of this judicial body should be binding on the parties. The US Military Governor further believes that those decisions could be appealed to Governments by the Military Governors. The French Military Governor, on the other hand, considers that it should be within the power of the Military Governors to transform the conclusions of this organ into decisions.

4. The letters of interpretation or Minutes referred to in paragraph 2 above will cover the following points:

a. Article II, paragraph 2(a)

The Military Governors will be instructed to send to the Germans invitations to such international conferences as they may be invited to attend.

b. Article II, paragraph 2(c)

As a condition for agreement to paragraph 2(c), the Military Governors will be given a list of controls to be exercised.

c. Article IV, paragraph 10

The Military Governors interpret this paragraph as permitting groups of the Military Security Board to visit any installation without prior notification.

5. a. Since the report of the Intergovernmental Working Party on the protection of foreign interests was not available for reference, subparagraphs (c), (f) and (g) of Article II, paragraph 2 of the Statute will require further consideration at governmental level in the light of that report.

b. The Military Governors have not considered it opportune to communicate the provisions of the Statute to Benelux representatives, inasmuch as this draft has not yet been submitted to the French, US and UK Governments.

Pierre Koenig

Military Governor and Commander-in-Chief

Lucius D. Clay

Military Governor and Commander-in-Chief

Brian H. Robertson

Military Governor and Commander-in-Chief

[Annex]

Draft Joint Text of the Occupation Statute

secret

[Frankfurt,] 17 December 1948.

Appendix “B” to TRIB/P(48) 14/1
TOS/P(48)1/6

Proclamation

To the people of the French, United States and British Zones of Occupation in Germany.

Whereas supreme authority is exercised by the Military Governors and Commanders-in-Chief of the French, United States and British Zones of Occupation who are acting on the instructions of their respective Governments each in his own Zone of Occupation, and

Whereas the fundamental purposes of the occupation are a just and lasting peace based on the disarmament, demilitarisation and democratisation of Germany, and Germany’s integration with the peace-loving democratic forces of Europe and the world, and

Whereas the Military Governors and Commanders-in-Chief of the French, United States and British Zones have decided that pending agreement on Germany as a whole, it is expedient for the better administration of their Zones to establish provisionally a constitutional German government, and

Whereas, without prejudice to the provisions of the Peace Treaty, they have agreed to define, on the basis of the present temporary organisation of Germany, their common policy with respect to their relations with the German people in their Zones,

We, General Pierre Koenig, Military Governor and Commander-in-Chief of the French Zone of Germany,

General Lucius D. Clay , Military Governor and Commander-in-Chief of the United States Zone of Germany, and

General Sir Brian Hubert Robertson , Military Governor and Commander-in-Chief of the British Zone of Germany,

Do Hereby Jointly Proclaim The Following Occupation Statute:

article i

powers of the federal state and of the participating laender

1. The Federal State and the participating Laender shall have, subject only to the limitations imposed in this Statute, full legislative, executive and judicial powers in accordance with the Basic Law (Provisional Constitution) and with their respective constitutions.

article ii

powers reserved to the occupation authorities

2. The Occupation Authorities reserve to themselves the exercise of those powers necessary to enable them:

(a) To conduct or direct Germany’s foreign relations, until such time as she may be permitted unrestricted foreign relations. However, German representation at international conferences attended by one or more of the Occupying Powers shall be permitted, provided that the members of the delegation have been approved by the Military Governors and no international obligation entered into by such delegation shall become effective without the Military Governors’ approval;

(b) [To exercise the minimum control over German foreign trade and foreign exchange and over internal policies and measures which could adversely affect them, necessary to ensure the respect for obligations entered into by the Occupation Authorities in regard to Germany, and the proper use of funds made available to Germany.]⁴ (US) [To exercise such control over German foreign trade and foreign exchange and over internal policies and measures which could adversely affect them, as they may consider necessary to ensure:

(i) respect for Germany’s international obligations including those entered into by the Occupation Authorities in regard to Germany;

(ii) the proper use of funds made available to Germany; and

(iii) the repayment in due time of expenditure incurred by the Occupying Powers in respect of or on behalf of Germany.] (UK)
Note: (The French delegation is prepared to accept either text for this sub-paragraph.)

(c) [To exercise such controls as have been or may be agreed upon by the Occupying Powers or Occupation Authorities, including those regarding the Ruhr, reparations, prohibitions and limitations on the level of industry, decartelization, disarmament, demilitarisation, industrial ownership, and certain aspects of scientific research; to control the frontiers in respect to movement of persons entering or leaving Germany;] (Fr)
[To exercise the controls required by the Occupying Powers or the Occupation Authorities to ensure international security and cooperation;] (US/UK)

(d) To protect the prestige, and to ensure the security of the Occupation Forces; to guarantee their immunity from German legislative, executive and judicial action, and the satisfaction of their requirements; to conduct operations they deem essential to the national security of their respective countries;

(e) To ensure the observance of this Statute, of the Basic Law (Provisional Constitution) and of the Land constitutions;

(f) To protect and restitute property belonging to non-German states or their nationals and property of victims of Nazi persecution; to protect the claims to compensation of persons affected by seizure of external assets and reparations removals;

(g) To prevent any official or private action which:

(i) discriminates in any way against any non-German national as compared with German nationals, or

(ii) is in any way inconsistent with the principles and the aims of the Havana Charter for an International Trade Organisation and in particular with the principles of most favored nation treatment and non-discrimination;

(h) To regulate the admission of refugees;

(i) [To ensure the protection, maintenance, repatriation and resettlement of displaced persons;] (Fr/US)
[To implement any agreement between the Occupation Authorities and the International Refugee Organization;] (UK)

(j) To ensure the control of all aspects of civil aviation and facilities therefore;

(k) To require the Federal State and the participating Laender to furnish periodically the information and statistics needed by the Military Governors for the exercise of the powers reserved in this Statute, and in addition, to furnish any special information and statistics which may be requested by the Military Governors. The Military Governors will be provided with every facility to verify all such information and statistics; and

(l) To control the care and treatment of persons charged before or sentenced by Occupation Courts or Tribunals and the carrying out of sentences imposed on them; to decide questions of amnesty, pardon or release in relation to them.

article iii

legislative powers

3. The Federal State and the participating Laender shall have full authority to legislate on all matters within their competence, subject to the provisions of this Article.

4. Land constitutions and amendments to the Basic Law (Provisional Constitution) or any Land constitution and any legislation enacted pursuant to paragraph 5 of this Article shall not come into force until approved by the Military Governors. Other legislation enacted by the Federal State or the participating Launder shall come into force on the twenty-first day after its official receipt by the Occupation Authorities or such later date as may be provided in law, unless within the said period of twenty-one days it has been disapproved by the Military Governors. The Military Governors will not disapprove such legislation unless in their opinion it violates the Basic Law (Provisional Constitution), the Land constitution, legislation of the Occupation Authorities or the provisions of this Statute.

5. The Occupation Authorities retain the right to legislate on matters referred to in Article II above and, except as may be necessary to implement the provisions of paragraph 18, Article VI, will in the future limit their legislation to those matters. Legislation in those fields which the Federal State and the participating Laender have been empowered to enact by the Occupation Authorities will not come into force until it has received the written approval of the Military Governors.

6. In those matters where the Occupation Authorities have full authority to legislate they may repeal or modify any existing legislation of the former Reich or of a Land. In other matters, before repealing former German legislation found to be inconsistent with this Statute, the Military Governors will consult with the appropriate German authorities.

7. Legislation of the Occupation Authorities enacted before the effective date of this Statute shall remain in force until repealed or amended in accordance with the following provisions:

(a) The Occupation Authorities will repeal or amend legislation which they deem inconsistent with this Statute;

(b) Within ninety days, they will codify legislation pertaining to the matters mentioned in Article I, and as far as possible, harmonize it;

(c) Legislation not referred to in (a) and (b) may be repealed or amended by the German authorities.

article iv

executive powers

8. The Federal State government and the governments of the participating Laender shall be entitled to exercise executive authority in all matters within their competence, subject to the provisions of this Article.

9. The German authorities may enter into commercial relations through commercial representatives abroad, under regulations approved by the Occupation Authorities. [They may also appoint to any nation prepared to accept them consular representatives for the protection of the interests of German nationals abroad.] (US/UK) Such representatives shall be appointed by the German authorities with the approval of the Military Governors.

10. In the exercise of their powers under Article II the Occupation Authorities reserve the right to take action themselves, or to direct such measures as may be required of German governments.

11. Action of the Occupation Authorities under the preceding paragraph includes the right to require the dismissal of any German holding public office or any German public servant who obstructs the Occupation Authorities in the exercise of their powers as set forth in this Statute.

12. All orders and directives issued by the Occupation Authorities under this Statute will be transmitted to the head of the appropriate and competent level of German government.

article v

judicial powers

13. German courts shall have jurisdiction in all criminal cases except the following:

(a) cases falling under the jurisdiction of military courts;

(b) cases involving offences jeopardising the security or prestige of the occupation;

(c) cases arising under legislation of the Occupation Authorities where such legislation provides that German courts shall have no jurisdiction;

(d) cases against:

(i) members of the Occupational Forces;

(ii) non-Germans accredited to or sponsored by the Occupation Authorities;

(iii) nationals of the Occupying Powers;

(iv) dependents of persons in categories (i), (ii) and (iii) above;

(v) German nationals employed by the Occupation Forces, where the charge is in respect of any matter arising in the course of or out of their official duties;

(vi) displaced persons, where the charge is in respect of an offence committed before the expiration of a period of two years from the effective date of this Statute.
Note: (This text is subject to confirmation by the UK Military Governor.)

(e) cases involving offenses against any non-German person mentioned in sub-paragraph (d) above or his property, or against the property or safety of the Occupying Powers or Occupation Forces, unless German courts are authorized by the Occupation Authorities to exercise jurisdiction.

14. [German courts shall have jurisdiction in all civil cases, provided that unless expressly authorized by the Occupation Authorities they shall not exercise jurisdiction in cases in which any non-German person mentioned in paragraph 13 (d) is a party.] (Fr/US)

[German courts shall have jurisdiction in all civil cases, subject to the following provisos:

(a) Except where expressly authorized by the Occupation Authorities, such courts shall not have jurisdiction in any case in which any person within categories (i), (ii), (iii), (iv), and (v) of sub-paragraph (d) of paragraph 13 is plantiff or defendant, unless the case relates to matters not arising in the course of or out of his official duties;

(b) A certificate from the Occupation Authorities concerned that a case relates to matters arising in the course of or out of official duties shall be conclusive and binding on such courts;

(c) The Occupation Authorities reserve to themselves the right to withdraw any case involving persons mentioned in sub-paragraph (a) from the jurisdiction of such courts.] (UK)

15. German courts shall not have jurisdiction in any case involving a challenge to the validity of any legislation of the Occupation Authorities or of any order issued by them.

16. The Occupation Authorities reserve to themselves the right:

(a) To try offenses arising under their legislation which the German authorities have neglected to prosecute;

(b) To try any person, irrespective of his nationality, who is charged with participation in an offense committed by a person mentioned in sub-paragraph (d) of paragraph 13, or with being an accessory thereto;

(c) To set aside the decision of any German court:

(i) which violates the provisions of this Statute or any legislation of the Occupation Authorities or any German legislation enacted at their instance or under paragraph 5 of Article III, or

(ii) which discriminates against any non-German national as compared with German nationals;

and in either event to order a retrial of the case, either in one of their courts or in a German court; and

(d) To establish such courts as they may consider necessary for the trial of cases excluded from the jurisdiction of German courts or withdrawn from such jurisdiction under the provisions of this paragraph.

17. Subject to the requirements of their security, the Occupation Authorities shall guarantee that all agencies of the Occupation respect the right of every person to be protected against arbitrary arrest, search or seizure; to be represented by counsel; to be admitted to bail as circumstances warrant; to communicate with relatives; and to have a fair and prompt trial.

article vi

emergency powers and special responsibilities of the occupation authorities

18. The Occupation Authorities reserve the right to resume their full powers in an emergency threatening security, or if they deem it necessary to secure compliance with this Statute, the Basic Law (Provisional Constitution) or the Land constitutions. Before so doing, the Military Governors will formally advise the appropriate German authorities of their decision and of the reasons for it.

19. The Occupation Authorities will have a special responsibility to observe, advise and assist the Federal State and the participating Laender in regard to the democratisation of political life, social relations and education of the German people. This shall not imply any restrictions of the legislative, executive and judicial competence accorded to them in those matters. The Federal State and the participating Laender will furnish any special information, facilities and statistics which may be requested by the Occupation Authorities in the exercise of this responsibility. Legislation in those fields shall be subject to the provisions of paragraph 3 of this Statute.

article vii

requirements of the occupation

20. [The powers of the Occupation Authorities under Article II include the power to require the Federal State to make such financial or other provisions and the participating Laender to make such provisions other than financial as the Military Governors may deem necessary for the discharge of their responsibilities. The Federal State and the participating Laender will be consulted as to the procedure to be followed for the satisfaction of such requirements.] (US/UK)

20. [The powers of the Occupation Authorities under Article II include the power to require the Federal State and the Laender to make such financial or other provisions, as in the opinion of the Military Governors, are necessary for the discharge of responsibilities which, up to the present day, were reserved to the Occupation Authorities and which they preserve by the application of this Statute. The Federal State and the participating Laender will be consulted regarding the procedure by which such requirements are to be satisfied.] (Fr)

21. [The Occupation Authorities shall in respect of every financial year establish after consultation with the Federal State authorities estimates of the requirements of the Occupation Authorities (Occupation Costs) and of the other provisions to be made under paragraph 20 of this Article (Mandatory Expenditures). The estimates shall be presented to the Federal State government before the beginning of the financial year and shall not be exceeded without supplementary estimates similarly established, which shall likewise be presented to the Federal State government as the occasion arises. In principle, supplementary estimates in respect of occupation costs shall not be presented except for special reasons, such as important errors in the original estimate, changes in the functions, size or deployment of the Occupation Forces, increases in prices and wages. All costs arising under this Article shall be borne by the Federal State.] (US/UK)

21. [The Occupation Authorities, after consultation with the Federal Authorities and those of the participating Laender shall establish in advance annual budget estimates of Occupation Costs and other expenses to be borne by Germany in accordance with paragraph 20 above. Concerning Occupation Costs these estimates will not be exceeded except in accordance with supplementary estimates established and communicated under the same conditions as the original estimates. In principle, these supplementary estimates will not be presented except for such specific reasons as major imperfections in the original estimates, changes in the functions, size, or deployment of the Occupation Forces, or increases in prices and wages. The Federal government will distribute equitably among the participating Laender the burden of these Occupation Costs, the sum of which will be covered by contributions of the participating Laender credited to a special section of the Federal budget.] (Fr)

article viii

interpretation of the statute

22. The Government of the Federal State or any participating Land may, on its own behalf or on behalf of any one of its citizens, appeal from any action taken by the Occupation Authorities on the ground that the action is in conflict with the provisions of this Statute. Such appeals shall be addressed to the appropriate Occupation Authorities according to procedure to be established.

23. In case of adverse decisions on the appeal, there shall be a further right of appeal to a:

[High Court] (US/UK) [Judicial Council] (Fr), according to procedure to be established.

[The Judicial Council shall consist of two jurists appointed by each of the Military Governors. It will be within the power of the Military Governors to transform the conclusions of this organ into decisions. The Judicial Council will give its ruling within two months on the basis of the written evidence submitted to it.] (Fr)

[The High Court will be constituted as follows: two jurists appointed by each of the Military Governors, one German jurist appointed by the Federal government, and one neutral jurist appointed by the president of the International Court of Justice. Its decisions will be binding on the parties, subject to the right of appeal by the Military Governors to their Governments.] (US)

[The High Court shall consist of five members: one jurist appointed by each of the Military Governors, one German jurist appointed by the Federal State government, and one neutral jurist appointed by the president of the International Court of Justice. Its decisions will be binding on the parties.] (UK)

24. No appeal under paragraphs 22 or 23 shall have the effect of suspending the action taken by the Occupation Authorities.

article ix

amendments to the statute

25. The Military Governors will examine from time to time the desirability of amending this Statute with a view to extending the jurisdiction of the German authorities in the legislative, executive and judicial fields. No amendments of the Statute shall be made without prior notice to and consultation with the Governments of the Federal State and of the participating Laender.

article x

definitions

26. For the purposes of this Statute:

(a) The term “Occupying Powers” shall mean the French Republic, the United States of America, and the United Kingdom of Great Britain and Northern Ireland;

(b) The term “Occupation Authorities” shall mean the authorities, civil and military, in Germany, of the Occupying Powers as defined in (a) above.

(c) The term “Occupation Forces” shall include:

(i) the Occupation Authorities,

(ii) the Armed Forces, including the Auxiliary Contingents of Allied Powers, serving under the Commanders-in-Chief of the Occupying Powers, and

(iii) non-German organizations and persons accompanying or serving with the said Authorities or Forces;

(d) The term “legislation of the Occupation Authorities” shall include the legislation of the Control Council;

(e) The term “Federal State” shall mean [The Federal Republic of Germany];

(f) The term “Basic Law (Provisional Constitution)” shall mean the Basic Law (Provisional Constitution) for the [Federal Republic of Germany].

article xi

effective date

27. This Proclamation shall come into force on . . . . . and shall be effective in the territory of the [Federal Republic of Germany] composed of the following Laender: (here set out the Laender of the French, US, and British Zones).

1. This report was agreed upon by the Military Governors at their meeting at Frankfurt on December 16 (see General Clay’s cable CC–7108, December 18, p. 640) and was signed in Frankfurt and approved for immediate dispatch on December 17.

   The source text was circulated as an appendix to a note by the secretariat of the Tripartite Committee on the Occupation Statute, not printed.

2. London Conference document TRI/17 (Final), May 19, p. 260.
3. Infra.
4. Brackets throughout document appear in the source text.