Foreign Relations of the United States, 1951, European Security and the German Question, Volume III, Part 1

London Embassy files, lot 59 F 59, 350 Germany

Memorandum of Conversation, Prepared in the Bureau of German Affairs

secret

[Washington,] September 11, 1951.

Subject: Contractual Arrangements with Germany

Participants:	Netherlands—Dr. J. G. de Beus, Minister Plenipotentiary, Netherlands Embassy.
	—Mr. M. Kohnstamm, Director of the German Department, Netherlands Foreign Office.
	—Mr. C. Vreede, First Secretary, Netherlands Embassy.
	Belgium—Mr. Scheyven, Director-General of the Political Office, Belgian Foreign Office.
	—Mr. Carlier, Director of German Department, Belgian Foreign Office.
	—Mr. Robert Rothschild, Counselor, Belgian Embassy.
	France—Mr. Jean Sauvagnargues, Deputy Director of Central European Affairs at the Foreign Office.
	—Mr. Christian d’Aumale, Officer of the Bureau of Central European Affairs at the Foreign Office.
	United Kingdom—Mr. Denis Allen, Head of the German Political Department, British Foreign Office.
	—Mr. C. D. W. O’Neill, Office of the British High Commissioner for Germany.
	—Mr. I. F. Porter, First Secretary, British Embassy.
	United States—Mr. Henry A. Byroade, Director, Bureau of German Affairs, Department of State.
	—Mr. Samuel Reber, Director of Political Affairs, Office of the U.S. High Commissioner for Germany.
	—Mr. J. J. Reinstein, Bureau of German Affairs.
	—Mr. J. W. Auchincloss, Office of German Political Affairs.

A meeting was held at 11:30 a. m. on September 11, 1951, at the Department to hear the views of the Benelux representatives concerning the proposed contractual arrangements with the Federal Republic of Germany.

Mr. Byroade stated that the talks preliminary to the meeting of the Foreign Ministers had been profitable and useful and had resulted in a wide measure of agreement. He would give some account of what had been done in the last few days, before asking the Benelux representatives for their comments. What has been done will result, not in specific texts of agreements with the Germans, but rather in guidance to the High Commission for use in negotiations with the Germans.

There are certain general principles which, it has been agreed, should govern the new relationship with Germany. The first of these is that the Federal Republic will continue to be integrated on a basis of equality into the European community, which is in turn within the Atlantic community. This will make it possible for the three powers to renounce restrictive controls. A peace treaty cannot now be concluded, for Germany is a divided country with a security threat outside its borders and beyond its control. For these reasons the supreme authority of the occupying powers must be retained, to be exercised with respect to (1) the discharge of their responsibilities regarding Germany as a whole, including the unification of the country and a peace settlement; (2) questions relating to Berlin; and (3) the stationing of forces in Germany and the protection of the security of these forces. The Germans should be able to understand the maintenance of authority for these purposes, since it is in their interest as well as that of the Allies. It represents a basic change in the existing relationship between Germany and the three powers.

It is also agreed that there should be no German national army. In the recent conversations there has been no discussion of how Germany should be brought into a defense framework, because the group has been concerned with the proposed contractual arrangements. It is, however, the hope of all concerned that the European Defense Community will supply the framework for a German participation in the common defense.

As a third principle, it is expected to modify the present security controls. The German participation in defense will cover many military safeguards. There will remain, however, the question of prohibited and limited industries and similar controls. It has been agreed that these will be put on a contractual basis, and that the controls will be of such a fundamental character as would be appropriate in a peace treaty. Any violations would be referred to the Arbitral Tribunal. There has been no final agreement on the specific areas to be controlled, and much more work will be required, even if the controls conform to the Brussels list (since the term “heavy weapons” in that list has never been defined). It is expected that the work will be done by experts at the earliest possible moment.

The question of an agency to administer these controls is one on which the Benelux views are particularly desired, in accordance with the 1948 agreement on consultation with respect to a possible successor to the Military Security Board. With a revised list of controls there should be a much less formal organization than the Military Security Board. There has been proposed a body that would collect and verify information, report violations of the controls to the Council of Ambassadors, and make recommendations as to what action should be taken. It would be up to the High Commission to consider whether the Germans should participate in such a body. [A paper describing this body was then circulated and copies of it are attached.]¹

The fourth and last general principle concerns the status of Allied troops in Germany. The legal basis for the presence of troops in Germany is unchanged. The forces of the three powers will continue to be stationed in the Federal Republic by right, under the Declaration of June 5, 1945,² rather than by agreement with the Germans. There will, however, be a change in the relationship between the Germans and the three powers, for this relationship must be one of partnership in defense, rather than that of an occupation. The psychology of the troops, as well as their status, should be adapted to this new conception. The standards defining their position in Germany should conform to those applicable to friendly forces in a foreign country, except as modified by the fact that there are extraordinarily large numbers of troops in Germany and that the country is a forward area in the strategy of defense. There cannot be, therefore, an agreement on the exact terms of the standard NATO Agreement, but the High Commission would take into account the principles of that agreement.

Civil Aviation—Relations in this field will be put on a contractual basis. The three powers will keep their rights of access and operation to Berlin, and the German Government will give assurances against discrimination. Questions of military aviation are not dealt with here. The three powers intend to keep authority to control all flights by aircraft of the Soviet Union.

Preservation of Democracy—The problem of guarding against the the appearance of another Hitler is one that affects the security of us all. We have considered the whole range of methods of dealing with the question. The entire contractual arrangements might be made to depend upon it, but, on the other hand, it might weaken the Germans to retain this power. It is a subject which the Ministers themselves must discuss, and we should be very glad to have the Benelux thoughts on the matter.

State of Emergency—The Federal Government has no power to declare a state of emergency. The three powers will retain the right, in case of an external attack or of internal disorder involving the security of troops, to declare an emergency in a civil sense, and to take the steps necessary to deal with the situation. They might also declare an emergency upon request of the German Government.

Form of Agreements—The contractual arrangements will take the form of international agreements to be formally approved as appropriate, depending on the constitutional processes of the different countries.

Logistical Support—This has proved a very difficult question. The Germans should contribute to the support of their own forces and those of other countries as well, since they have no extra-European commitments. The total share of German resources devoted to defense should be on a comparable scale with the share of other leading nations in the defense of the West (not only the defense of Europe), but at the same time Germany’s capacity to pay must be taken into account. There is likely to be a gap between the German contribution and the total costs in Germany of support of Allied forces and forces contributed by Germany. How to fill such a gap is a problem which will have to be studied after the Ministers’ meeeting. The Germans cannot be expected to agree on the arrangements as a whole before this question is settled, and the Bundestag will certainly want to know what arrangements are contemplated in this field.

Status of Forces—This includes such matters as offenses against Allied security and the status of Allied personnel in Germany. The question is a difficult one, because it is a matter of extra-territoriality. Questions such as whether dependents of military personnel should be subject to German criminal law and whether certain cases in German courts should be subject to withdrawal by the Allies have not been decided. The position is somewhat clearer with respect to civil cases, where it is recognized that the German courts will have primary jurisdiction. It will not be possible to make all changes of this kind at once, and we shall have to go through a transition period between the atmosphere of the occupation and that of the new relationship.

Reparation—Mr. Reinstein stated that the Germans would be required to recognize certain agreements and to maintain certain legislation, particularly the law on Divesting of Title³ and Law No. 5.⁴ The power over reparation will be given up, but it will be made clear to the Germans that the rights of other countries with regard to a final settlement which were reserved under the Paris Agreement⁵ in connection with a peace treaty are maintained.

Foreign Interests—Since the reports on this subject by the Intergovernmental Study Group on Germany have not been approved by Governments, this subject has not been discussed as yet with the Germans. A formula for dealing with the disagreed point pending before governments has been worked out, on which the views of the Benelux representatives were requested. [Copies of the proposal were distributed at the meeting, and a copy is also attached to this memorandum.]⁶

Internal Restitution—Mr. Byroade said that an effort will be made to obtain uniformity in the application of compensation laws throughout the Federal territory.

Berlin—The control arrangements with Berlin will be modified in the light of the contractual arrangements with the Federal Republic. It is not intended that Berlin should be a Twelfth Land.

Deconcentration—Mr. Byroade said that Law 27⁷ would be carried out, but that, after the entry into force of the Schuman Plan, the functions of the Control Groups would be restricted to those necessary to complete the deconcentration.

Arbitration Tribunal—The High Commission has already given the Benelux representatives a good idea of what the Tribunal will be like. The view has developed in the recent discussions that the composition of the Tribunal should be three German judges, one American, one British, and one French judge, and three judges of other nationality. Violations of the contractual arrangements would be submitted to the Tribunal for arbitration. The Tribunal could, if its judgments were not carried out, direct specific action to be taken by the defaulting party. This is a very important international aspect of the Tribunal. It is believed that most of the issues likely to arise under the contractual arrangements will not be suitable for the International Court of Justice at The Hague and should, therefore, be submitted to a body which will have a closer connection with the German problem.

Mr. Byroade said that it was hoped to meet all these issues this autumn and to solve them at the same time. Some way must be found—but not too blunt a way—of relating the new status of Germany to German entry into defense. The questions must all be submitted to the Bundestag, and the High Commission will attempt to conclude its negotiations with the Germans by the time the North Atlantic Council meets in Rome.

Dr. deo Beus said that he much appreciated the way the meeting had been organized. It is important for the Benelux countries to come in at a preparatory stage because the contractual arrangements will, for some time to come, take the place of a peace treaty. He noted the satisfaction of the Netherlands Government that the Divesting Law had been enacted.

The general line of approach comes very close to the feeling of the Netherlands Government on the subject. The arrangements will be as close to a peace treaty as will be possible for a long time. The Dutch have no deep love for the Germans, but consider that there is no choice in the matter of German rearmament. Since the Germans must rearm, they must be given a sense of equality in their participation, and the occupying powers should go as far as possible in dropping controls in order to enlist German cooperation. Certain safeguards must be kept, but there is no use in setting up elaborate legal provisions that would never be enforced. Such provisions were established after the first World War, and the Germans gradually nibbled away at them. There should be no guarantee on paper that would not be enforced in case of necessity. The best safeguard, however, would be to keep the Germans in the joint defense.

Dr. de Beus then presented the views of the Netherlands Government on particular points contained in the information given to the Benelux representatives in Bonn by the High Commission.

State of Emergency—There must be a legitimate basis for any renewal of Allied authority, but the circumstances for such a renewal should not be specified in advance. A decision on the assumption of authority could be made only in the light of conditions existing at the time, so the general principle should be stated without any details.

Council of Ambassadors—Dr. de Beus asked if there were any practical advantage to a Council of Ambassadors. It seemed to offer no substantive change from the existing High Commission, and would give the Germans a feeling of tutelage. There would be no practical difference between a Council and close consultation by the Ambassadors whenever that was needed. He also asked if it was necessary to prevent the Germans from taking up matters of tripartite concern in the Allied capitals.

Maintenance of Democracy—Dr. de Beus asked what would be gained if the Germans were made to guarantee the maintenance of democracy. He thought that such a requirement might even have the reverse effect. A reference to democracy should be made in the preamble, rather than in the body of the agreement, and Dr. de Beus suggested the following language for this purpose:

“In view of the fact that the Federal Government has for some time been operating a democratic system of Government on the basis of free general and secret elections, the three Allied Powers feel justified to suspend the exercise of their supreme authority in as far as compatible with the international obligations undertaken by the three powers.”

This would provide a link with the Potsdam Agreement. Both the Yalta and Potsdam Agreements contemplated that Germany would return to the community of nations, so it would be in the spirit of these agreements to state that supreme authority would now be suspended.

Sovereignty—From the psychological point of view it would be advisable for the preamble to specify that the Federal Republic was resuming its place as a sovereign state, insofar as this was compatible with the obligations of the Allies.

Berlin—A specific reaffirmation of the special position of Berlin should be included in the agreement.

Military Arrangements—The contractual arrangements should not have clauses regarding a German military contribution, but these should be included in a separate, accompanying agreement. It should not be stated in so many words that the contractual arrangements and a defense contribution are related. There should be a clause, as there is in the Japanese Peace Treaty, to the effect that the Federal Republic has the right of individual or collective self-defense expressed in the Charter of the United Nations. The political agreement should also provide that the Allied forces are security troops, rather than occupation troops.

Foreign Relations—The Germans should conduct their foreign affairs, so far as compatible with the international responsibilities of the three powers, and in constant consultation with the three Ambassadors.

International Obligations—Such obligations undertaken by the Allies should be taken over by the German Government, except for obligations such as those in the Yalta and Potsdam Agreements. The contractual arrangements should deal only with obligations undertaken in the past, and the Germans should not be required to accept agreements to be made by the Allies in the future.

Reparation—The provisions on this subject should cover only existing obligations, and anything regarding the future should be left for a peace treaty.

Decartelization—It should not be stipulated that the pending German law in this field can be abolished only with Allied authorization.

International Ruhr Authority—No controls should be retained with respect to the Ruhr after termination of the International Authority for the Ruhr.

Allied Tribunals—Article 11 of the Japanese Peace Treaty is better adapted to the problem of clemency and the handling of war criminals than the corresponding proposals of the High Commission. Dr. de Beus believed that it might be easier for the Germans to maintain the Nuremberg judgments if a reference were made in the agreement to the International Criminal Court which has been proposed by the International Law Commission of the United Nations.

Debts—Dr. de Beus suggested that it should be stated as a general principle that Germany is responsible for the damage done during the war. This would correspond to Article 14 of the Japanese Peace Treaty (except that the Dutch do not like the clause about the Governments waiving the claims of their nationals and would, therefore, omit it). The agreement to be reached in London with respect to German debts should be incorporated in the contractual arrangements.

Arbitration—Dr. de Beus said that it was wise to establish a Tribunal for arbitration but that any delicate political questions involving the Soviet Union should be expressed, not in the agreement itself, but in the preamble, so that they would not arise in a form which would subject them to arbitration.

Military Agreement—The Federal Republic should be admitted to NATO in the not too distant future; it would then have a security guarantee and would be prevented from making any agreement contrary to the North Atlantic Treaty. The contractual arrangements should, accordingly, be conformed to the NATO arrangements. At present, Germany is protected by the provision in the Treaty which declares an attack on the occupation forces to be an attack on the signatory powers, and by the statement of the Foreign Ministers, made in September of 1950, that an attack on the Federal Republic would be treated as an attack on the three occupying powers.⁸ These safeguards would be formalized by membership in NATO.

Dr. de Beus said that the Netherlands Government believed that the restrictions on industry and scientific research would be impossible to enforce, and that no provision for them should be made.

Mr. Kohnstamm said that the approach should be that of the psychologist rather than the jurist, and that he believed the High Commission had handled the problem with too legalistic an approach. The Germans do not accept things just because they are written down in black and white, but they do respect simple and forceful facts.

The present political opposition to the Federal Government is mala fide, and the present cooperation from the German authorities is the best we are likely to get for some time. The contractual arrangements should, therefore, be handled in such a way as to strengthen the Federal administration. The Allies should not write too much into the agreements. Mr. Kohnstamm mentioned Law 27 as an example of excessive detail. Everything will be done by reason of the relationship existing between the Germans and the Allies. It is all a matter of the strength of the ties between them, even if the rights as expressed on paper are not very clear.

Any prohibition on the repeal of legislation without Allied comment will expose the Government to constant attempts by Schumacher and the opposition to change such laws in the Bundstag, and, whether the laws or the changes are wise, the Government will be in the position of having to say that it can do nothing in the matter without Allied approval.

Mr. Byroade stated that he was encouraged by these observations, and that he thought our position was very close to that of the Netherlands on matters of importance.

Mr. Scheyven associated himself with the general approach described by Dr. de Beus, and stated that his Government agreed the contractual arrangements were close to a peace treaty, but believed the High Commission’s proposals amounted, in effect, to a further revision of the Occupation Statute. He said it had been difficult to consider the general approach, because only a résumé of the texts had been available. German opinion has been impressed by the Japanese Peace Treaty, and, in comparison, the new decisions do not really look as though they constituted a fundamental step. They do not go far enough to have the proper psychological effect on the Germans.

Mr. Kohnstamm asked about the interpretation of the phrase “state of emergency”. Would a state of emergency be declared at an early stage, or only at the last moment? Would a border attack or disorder somewhere in Germany be sufficient for a declaration of emergency?

Mr. Byroade said that the circumstances could not be specified in advance. However, the basis for a declaration of emergency would always be the security of Allied forces. It is contemplated that the agreement would provide that an emergency could be declared in part or all of the Federal territory. A Soviet attack might result in a declaration of emergency for the entire country. While disorder in the Ruhr might result only in a local declaration.

Mr. Scheyven asked whether it was expected that the Germans would be allowed to conduct relations with the Soviet Union and the satellite countries, and whether any provision concerning this had been expressed in the documents.

Mr. Byroade replied that there would be no prohibition against German relations with the countries of Eastern Europe in the contractual arrangements.

Mr. Allen stated that the emphasis would be on the ties to the West, rather than on prohibitions against dealing with the East.

Mr. Scheyven asked what were the future agreements which the Germans would undertake to recognize. He was told that the only agreements which the three powers had in mind were the Safehaven agreements.⁹

Mr. Scheyven asked whether the exemption from equalization of burdens legislation for Allied property and the debt settlement would be covered in the contractual arrangements.

Mr. Reinstein stated that the first question would be covered in the agreement on foreign interests. In answer to the second question, he said there would be an international agreement on debts, but it would not be part of the contractual arrangements. It was likely that the debt negotiations would go on for some time, and, if the contractual arrangements were concluded first, they would have to contain an interim provision on debts.

Mr. Byroade spoke of the form of the contractual arrangements and explained that there would be a general agreement concerning the principles involved, with separate conventions on more specific matters.

Mr. Scheyven then asked how it was intended to associate the Benelux countries with the future work on contractual relations.

Mr. Byroade said that, when the Ministers had reached their decisions, further work would be referred to the High Commission. There would then be a period of considerable activity, and the only practical place for consultation would be Bonn. The representatives of the three powers there would take all possible steps to keep the Benelux missions informed.

Mr. Scheyven stated that it was important to receive the documents on the military forces. If Bonn is to be the place for consulation, and no group such as the Study Group will be established anywhere else, will it be possible for the Benelux to see the documents in a formative stage?

Mr. Byroade replied that the only expert group which was contemplated would be one to deal with the question of prohibitions and limitations on industry. It has not been decided where such a group would meet. He was not clear enough about the procedures of the High Commission to know just when documents are furnished to the Benelux representatives, but the High Commission would make every effort to see that this was done in matters of direct concern to them.

Mr. Byroade stated that he much appreciated the views which had been expressed in the meeting. They represented a broad approach, which was very fine in the light of past events.

Mr. Byroade then reviewed some of the specific questions in order to compare the views of the Benelux countries and the occupying powers. The two positions are very close with regard to declaring a state of emergency. As for the Council of Ambassadors, it is not intended merely to change the name of the High Commission and continue it in another form, but a three-power authority is still required because of Berlin and because of the necessity for joint action in case of emergency. The Council will be kept as informal in character as possible, and no charter has been prepared for it yet.

The proposed preamble to the general agreement is similar to the Netherlands’ suggestion regarding preservation of democracy. With respect to stating that Germany is a sovereign state, Mr. Byroade observed that the three powers would declare that they keep the right to exericse supreme authority in certain fields, but renounce it in all others. At this point, Mr. Sauvagnargues observed that it was not possible to give sovereignty to Germans and keep the right to act in an emergency, but Dr. de Beus said that he believed there were ways of combining the two.

With resepct to the connection between the contractual relationship and a German defense contribution, Mr. Byroade said this would require very careful handling, but there must be some link between them, for otherwise the Germans would be likely to accept the contractual arrangements and refuse the defense participation. The arrangements for bringing Germany into the common defense have not been discussed at the recent meetings.

The question of war criminals has not been dealt with in Washington, but will be studied by the High Commission.

It is not intended that political questions will be submitted to the Arbitral Tribunal. It seemed to Mr. Byroade that the Benelux representatives would go further in reducing security controls than the three powers were prepared to go, but that question had not been finally decided.

Mr. Allen said that the general ideas expressed had been most useful and stimulating. He had been impressed by the emphasis placed by the Netherlands and Belgian representatives on going as far as possible in the direction of a peace settlement. That is the spirit in which we have considered the High Commission report, and the ideal we have in mind. We do not, however, delude ourselves that everything has been settled or that the negotiations in Germany would be easy.

Mr. Byroade said that he believed we would arrive at a politically acceptable agreement which would be better than what the Benelux expected on the basis of the documents they had seen so far.

Mr. Kohnstamm said that he believed the Netherlands could accept the paper on foreign interests which had been distributed at the meeting. Mr. Scheyven said that the Belgian representatives would study the paper further and give their views on it at a later time. [He subsequently informed the U.S. Delegation, for the information of the British and French, that the formula was acceptable to the Belgian Government.]

With respect to future meetings, Mr. Byroade pointed out that the situation was most unusual, since the Foreign Ministers would have no time in Washington after their talks were concluded. He suggested, therefore, that there should be another meeting with the Benelux representatives when the Ministers’ discussions were over, in order to inform them of the decisions which had been reached. The Ministers would also look forward to meeting the Benelux Ministers in Ottawa. This would be an informal talk, and there would be no experts on German matters present.

It was agreed to plan for a further meeting on Friday morning, September 14, and to set the exact time later. The Ministers would probably meet in Ottawa on Sunday, September 16.¹⁰

[At the close of the meeting Dr. de Beus gave a copy of the notes from which he had spoken, and these are attached to the present memorandum. Copies are also attached of the papers which were circulated on security controls and foreign interests.]¹¹

[Attachment]

Paper Prepared by the Tripartite Working Group

secret

[Washington, September 10, 1951?]

Security Controls

The Federal Republic should undertake to provide such information as the Allies may require in connection with the contractual arrangements in the security field, and to permit its verification. There should be no Allied control agency in the security field. However, provision should be made for the establishment of an Allied body subordinate to the Council of Ambassadors which will be concerned with problems arising in regard to the undertakings of the Federal Republic. This body would have, on the basis of the contractual arrangements, the necessary authority to obtain and verify information and carry on such inspections as may be authorized by the Council of Ambassadors. It would report to the Council of Ambassadors any evidences of German violation of the security undertakings and recommend action with respect thereto.

If the High Commission and the Federal Republic, as a result of their negotiations, consider it desirable, there should be a formal relationship between the Allied body and the German authorities for the purpose of providing a means of dealing with problems arising between the Allies and the Germans in this field. This formal relationship might be accomplished by associating representatives of the Federal Republic with the Allied body in a mixed commission. The mixed commission would deal with matters relating to the execution of the contractual arrangements with respect to security safeguards, obtaining and verifying information, and possibly some inspections. The German representatives, however, would not be associated with the Allied body in its reports and recommendations to the Council of Ambassadors or other activities which relate to purported violations of the arrangements.

1. Brackets throughout this document appear in the source text.
2. For the text of the Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority by the Allied Powers, signed at Berlin on June 5, 1945, see TIAS No. 1520, or 60 Stat. 1649; or Documents on Germany, 1944–1970, pp. 12–17.
3. Presumably Reinstein was referring to U.S. Military Government Law No. 19, dated April 20, 1949, disposing of properties in the U.S. zone and U.S. sector of Berlin which belonged to the former German Reich, States, Laender, or Provinces. For the text of this Law, see Military Government Gazette, Germany, Office of the U.S. Military Government for Germany, Issue N, June 16, 1949, pp. 9–12.
4. For the text of Control Council Law No. 5, “Vesting and Marshalling of German External Assets,” dated October 30, 1945, see Military Government Gazette, Germany, British Zone of Control, No. 5, undated, pp. 40–42.
5. For the text of the Paris Reparations Agreement, January, 24, 1946, see TIAS No. 1635 or 61 Stat. (pt 3) 3012.
6. The paper on foreign interests is not printed.
7. For the text of Allied High Commission Law No. 27, “Reorganization of German Coal and Iron and Steel Industries,” dated May 16, 1950, and the three Regulations thereto, see Laws, Regulations, Directives and Decisions, vol. i, pp. 155–178.
8. Regarding the statement, see Foreign Relations, 1950, vol. iii, pp. 1248–1296 passim.
9. A reference to the several agreements between the United States, United Kingdom, and France and various other countries attempting to settle the disposition of German external assets and looted gold.
10. For a report on the Foreign Ministers meeting on September 16 at Ottawa, see p. 1309; regarding the meeting on September 14, see footnote 2 thereto.
11. Only the paper on security controls is printed.