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Published online by Cambridge University Press: 30 March 2017
When hostilities with Germany were brought to an end by means of unconditional surrender in 1945 and the Nazi Government disintegrated, authority to determine Germany’s existing and future treaty relations was assumed by the military occupants.
1 For an account concerning the establishment of the Federal Government of Western Germany, see Plischke, The West German Federal Government (1952), Ch. I, and for an analysis of the creation of the Allied High Commission for Germany, see Plischke, History of the Allied High Commission for Germany: Its Establishment, Structure, and Procedures (1951), Chs. I and II; both of which have been published by the Historical Division of the Office of the U. S. High Commissioner for Germany. The second of these publications has been published in substantially revised and augmented form under the title, Allied High Commission for Germany: Organization and Functions (1953) ; see especially Chs. I–IV.
2 The Occupation Statute is the instrument which was issued by the three Western Occupation Powers governing their functions in occupied Western Germany upon the establishment of the West German Federal Government. It is a brief document comprised of nine paragraphs. The Agreement as to Tripartite Controls, signed by the United States, the United Kingdom, and France in Washington on April 8, 1949, provided for the tripartite fusion of the three Western Occupation Zones; and the Charter of the Allied High Commission for Germany has served as the constitutive act of the Allied High Commission. For the texts of these documents, and subsequent revision instruments, see Plischke, History of the Allied High Commission for Germany: Its Establishment, Structure, and Procedures, op. cit., Appendices 1, 3–5; and Plischke, Allied High Commission for Germany: Organization and Functions, op. cit., Appendices 1, 4–11.
8 For example, from Sept. 21, 1949, to the end of 1950, some 110 trade and payments agreements were negotiated by the West German Government.
4 For more detailed information concerning the negotiation of new treaties and the joining of international organizations by the West German Federal Government, see Plischke, Allied High Commission for Germany: Organization and Functions, op. cit., Ch. X. Also see “Germany Joins the Council of Europe,” Office of the U. S. High Commissioner for Germany, 3rd Quarterly Eeport on Germany (April 1-June 30, 1950), pp. 11–16; “The Schuman Plan,” ibid., pp. 17–20; “Progress of German Integration with the Free World,” ibid., 4th Quarterly Report (July 1-Sept. 30, 1950), pp. 15–21; “Germany and the European Community,” ibid., 9th Quarterly Report (Oct. 1-Dec. 31, 1951), pp. 25–32; and “Decisive Steps Toward European Unity,” ibid., 10th Quarterly Report (Jan. 1-March 31, 1952), pp. 19–28.
5 Harvard Research in International Law, Draft Convention on the Law of Treaties, this Journal, Supp., Vol. 29 (1935), p. 1183.
6 Ibid., pp. 1183 ff., especially pp. 1184, 1185, 1189, and 1203.
7 See Versailles Treaty, Arts. 282–295.
8 See Art. II of the “Treaty Restoring Friendly Relations Between the United States and Germany,” which stipulated that the benefits of the Versailles Treaty extended to the United States, including Part X of that treaty; the restoration of former treaties was provided for in Part X, Ch. V, Sec. II, of the Versailles Treaty. For the text of the Treaty of 1921, see U. S. Treaty Series, No. 658 (1922).
9 For the English texts of these treaties, see Treaties of Peace with Italy, Bulgaria, Hungary, Roumania, and Finland (Department of State Publication 2743, 1947); this Journal, Supp., Vol. 42 (1948), pp. 47, 179 et seq.
10 Treaty of Peace with Italy, Arts. 39–44; Treaty of Peace with Bulgaria, Arts. 6–8; Treaty of Peace with Hungary, Arts. 7–10; Treaty of Peace with Bumania, Arts. 7–10; and Treaty of Peace with Finland, Arts. 10–12.
11 In addition, the Japanese Government assumed the obligation of acceding to certain other international instruments in the shortest practicable time, not to exceed one year from the time the Peace Treaty went into effect. For text of Declaration, see this Journal, Supp., Vol. 46 (1952), pp. 86–87; see also Michael Brandon and Anthony Leriche, “Suspension of Rights and Obligations under Multipartite Conventions Between Opposing Belligerents on Account of War,” this Journal, Vol. 46 (1952), pp. 532–537.
12 Treaty of Peace with Japan, Sept. 8, 1951, Arts. 7–8; for the English text of this treaty, see Conference for the Conclusion and Signature of the Treaty of Peace with Japan (Department of State Publication 4392, 1951), pp. 313–326, 391; also this Journal, Supp., Vol. 46 (1952), pp. 71–76.
13 See, for example, War Department Technical Manual, TM 27–251, Treaties Governing Land Warfare (Jan. 7, 1944); Basic Field Manual, FM 27-10, Rules of Land Warfare (1940); and War Department Field Manual 27-5 and Navy Department OpNav 50E-3, U. S. Army and Navy Manual of Military Government and Civil Affairs (Dec. 22, 1943).
14 Hague Convention No. IV, of 1907, on the “Laws and Customs of War on Land,” Annex, Art. 43.
15 FM 27-10, op. cit., Pars. 285, 286.
16 For the text of the communiqué of the Foreign Ministers, see Office of the U. S. High Commissioner for Germany, 4th Quarterly Report on Germany (July 1-Sept. 30, 1950), pp. 98–100. For an analysis of the negotiation and substance of these changes, see Plischke, Allied High Commission for Germany: Organization and Functions, op. cit., Chs. II and V, and Appendices 4–8. Also see “The New York Foreign Ministers' Conference,” Office of the U. S. High Commissioner for Germany, 4th Quarterly Eeport on Germany (July 1-Sept. 30, 1950), pp. 11–14; “The Federal Government Assumes Wider Powers,” ibid., 6th Quarterly Report (Jan. 1-March 31, 1951), pp. 35–39; and “New Phase of Allied Policy in Germany,” ibid., 8th Quarterly Report (July 1-Sept. 30, 1951), pp. 13–22.
17 Perhaps in order to avoid raising the question of state succession at this stage, the Foreign Ministers preferred the expression “giving effect to” former Reich treaties to the terms “revive” or “reactivate.”
18 See Allied High Commission, Press Release No. 236, Oct. 24, 1950; also Allied High Commission, Background Information for Correspondents, No. 110, Oct. 24, 1950.
19 Enclosure in AGSEC (50) 2310, Nov. 28, 1950. “AGSEC's” are the communications of the Allied High Commission, including those with the West German Government.
20 AGSEO (50) 2310, Nov. 28, 1950.
21 Allied High Commission, Press Release No. 236, Oet. 24, 1950.
22 Allied High Commission for Germany, Official Gazette, No. 52 (April 2, 1951), pp. 846–847.
23 I.e., the Bundesgesetzblatt.
24 “Decisions” of the Allied High Commission generally have been concerned with the functions of the Federal Government and internal administrative matters of the High Commission. They differ from Allied High Commission “laws” and “regulations,” which contain the penalty clause; “directives,” which prescribe procedural matters in the relations between the Allied High Commission and the German Government; “declarations”; and other forms of Allied High Commission enactments. All of these are published in the Official Gazette of the Allied High Commission.
25 Such communications, as explained above, have been identified as “AGSEC's.”
26 The “Basic Law” is the provisional constitution of the Federal Republic of West Germany. For the text of the Basic Law in English, see Office of the U. S. High Commissioner for Germany, Basic Law and Occupation Statute (1950), or Allied High Commission for Germany, Allied General Secretariat, Basic Law for the Federal Republic of Germany (1951). For additional information concerning the status of Germany and its constitutive act, see Laun, Kurt v., “The Legal Status of Germany,” this Journal, Vol. 45 (1951), pp. 267–285 Google Scholar; and Friedrich, Carl J., “Rebuilding the German Constitution,” American Political Science Review, Vol. XLIII (June, August, 1949), pp. 461–482 CrossRefGoogle Scholar, 704–720.
27 For an analysis of the treaty procedure of the German Federal Republic, see Plischke, The West German Federal Government, op. cit., pp. 34–35, 66–72, 94–96, 119, and 140.
28 For the text of Directive No. 3, in its original and revised versions, see Allied High Commission, Official Gazette, No. 24 (June 24, 1950), pp. 415–416; ibid., No. 49 (March 6, 1951), pp. 799–801.
29 The Senate confirmed this short treaty subject to a reservation with respect to professional personnel, which delayed its ratification for a brief period; for texts of treaty and exchange of notes relating thereto, see Dept. of State Bulletin, Vol. 29, No. 734 (July 20, 1953), p. 94, and No. 738 (Aug. 17, 1953), pp. 225–226.
30 Certain portions of both these treaties are superseded by provisions of the Contractual Agreements of 1952 and by various United Nations agreements.
31 A bilateral agreement of February, 1953, supersedes that part of the 1930 agreement which is concerned with awards of the Mixed Claims Commission.
32 The prewar agreements concerning air navigation and certificates of airworthiness have not been deemed to be suitable for revival, and a new bilateral agreement affecting both subjects, in keeping with the principles of civil aviation agreements generally agreed upon at the International Civil Aviation Conference at Chicago in 1944, has been drafted and is under consideration. Furthermore, Western Germany may eventually adhere to the multilateral agreements arrived at in 1944.
33 Whereas the West German Government has requested reactivation of the bilateral treaty of 1931, it was superseded by the multilateral International Load Line Convention of 1930 (effective at the end of 1933), which the West German Government also has been seeking to revive.
34 For the texts of these conventions, see Senate Execs. Q and R, 82nd Cong., 2nd Sess., Convention on Helations with the Federal Republic of Germany and a Protocol to the North Atlantic Treaty. For additional information, see Plischke, Allied High Commission for Germany: Organization and Functions, op. cit., Ch. XI; “The Contractual Agreements,” Office of the U. S. High Commissioner for Germany, 10th Quarterly Report on Germany (Jan. 1-March 31, 1952), pp. 29–34; and Plischke, “The ‘Contractual Agreements’ and Changing Allied-West German Relations,” Political Science Quarterly (June, 1954).
35 Military Government had been terminated for Western Germany in September, 1949, when the Occupation Statute and related instruments came into existence. The state of war was terminated by the United States unilaterally by Joint Resolution of Congress on Oct. 19, 1951; see Public Law 181, 82nd Cong., 1st Sess. For additional information, see “Termination of the State of War with Germany,” Office of the U. S. High Commissioner for Germany, 8th Quarterly Report on Germany (July 1-Sept. 30, 1951), pp. 33–36; Kunz, Josef L., “Ending the War with Germany,” this Journal, Vol. 46 (1952), pp. 114–119 Google Scholar; and Quincy Wright, “The Status of Germany and the Peace Proclamation,” ibid., pp. 299–308.
36 Convention on Relations, Art. 2. For additional information see ‘Obstacles to German Unity,” Office of the U. S. High Commissioner for Germany, 3rd Quarterly Report on Germany (April 1-June 30, 1950), pp. 39–43; “Germany's Unification,” ibid., 6th Quarterly Report (Jan. 1-March 31, 1951), pp. 19–28; “German Unity,” ibid., 9th Quarterly Report (Oct. 1-Dec. 31, 1951), pp. 33–36; and Kelsen, Hans, “Is a Peace Treaty with Germany Legally Possible and Politically Desirable?”, American Political Science Review, Vol. XLI (December, 1947), pp. 1188–1193 Google Scholar.
37 Convention on Relations, Art. 1.
38 Ibid., Art. 3.
39 Ibid., Art. 7.
40 Convention on the Settlement of Matters Arising Out of the War and the Occupation, Art. 1, Pars. 1, 2.
41 Senate Execs. Q and R, op. cit., p. 151.
42 For an analysis of the reasons why no such provisions have been included in the Peace Treaties with Italy, Bulgaria, Hungary, Rumania, and Finland, and why the matter was dealt with in a Japanese Declaration rather than incorporated as an integral part of the Japanese Peace Treaty, see Brandon and Leriche, loc. cit., pp. 533–535.