¹ The full texts of the Contractual Agreements, as originally signed, are contained in Execs. Q and R, U. S. Senate, 82d Cong., 2d Sess., June 2, 1952. The texts of the 1954 Protocol and Amendments appear in Department of State Publication 5659, London and Paris Agreements (November, 1954), pp. 63–122. The Protocol, as of March 15, 1955, is not in force.

² Dept. of State Publication 5659, p. 5.

³ On Sept. 21, 1949, the Allied High Commission declared in force the Occupation Statute, as promulgated on May 12, 1949; Dept. of State Bulletin, Vol. 20 (1949), p. 500; this Journal, Supp., Vol. 43 (1949), p. 172.

⁴ As part of the Final Act of the London Conference, on Oct. 3, the Three Powers stated that their High Commissioners in Germany, pending the entry into effect of the Contractual Agreements, “will not use the powers which are to be relinquished unless in agreement with the Federal Government, except in the fields of disarmament and demilitarisation…” Dept. of State Publication 5659, p. 10.

⁵ E.g., Laun, , “The Legal Status of Germany,” this Journal , Vol. 45 (1951), p. 267 Google Scholar.

⁶ E.g., Fahy, , “Legal Problems of German Occupation,” 47 Michigan Law Review (1948) 1 CrossRefGoogle Scholar.

⁷ Rheinstein, “The Legal Status of Occupied Germany,” ibid., pp. 23, 27. The Supreme Court, in deciding a case which arose after the promulgation of the Occupation Statute and which involved the question of the jurisdiction of the courts of the occupation government, quoted Art. 43 of the Hague Regulations, which obligates the occupant to take all measures in his power to ensure public order and safety. Madsen v. Kinsella (1952), 343 U. S. 341, 348. The applicability of the Hague Regulations was not in issue, and the Court may simply have regarded Art. 43 as stating the consensus of opinion on customary international law.

⁸ Rheinstein, loc. cit., at p. 33. The author, in his search for historical analogies, is reduced to such curiosities of the ius gentium as the Austro-Hungarian Empire’s thirty-year “occupation” of Bosnia and Herzegovina and the medieval practice of pledging territory to a foreign sovereign to secure an obligation.

⁹ 343 U. S. 341 (1952); this Journal, Vol. 46 (1952), p. 556.

¹⁰ Winthrop, Military Law and Precedents (2d ed., 1920), p. 801.

¹¹ Exec. Order 10062, June 6, 1949, 14 Fed. Reg. 2965.

¹² 343 U. S. at p. 357.

¹³ Pub. Law 181, 82d Cong., 1st Sess.; Proclamation 2950, 16 Fed. Reg. 10915; this Journal, Supp., Vol. 46 (1952), p. 13.

¹⁴ See. 3 of the Occupation Statute reserves to the occupying Powers the right to rescind the Statute.

¹⁵ “In considering the contractual agreements as a whole, it should be borne in mind that they have had to take into account an unprecedented situation…. The problem has posed itself of according to the Federal Republic full authority over its internal and external affairs while preserving the means of negotiating German unity and of maintaining the rights of the Three Powers in Berlin.” Sen. Exec. Rep. No. 16, 82d Cong., 2d Sess. (Report of the Senate Committee on Foreign Relations on Execs. Q and R), p. 37. This problem has in nowise been diminished by events between 1952 and the present.

¹⁶ Soviet Russia’s recent recognition of the “sovereignty” of the so-called German Democratic Republic was not, of course, accompanied by any withdrawal of Russian occupation forces in East Germany, nor has Russia purported to sign a peace treaty with her East German satellite.

¹⁷ The text of the separate Convention on the Presence of Foreign Forces in the Federal Republic of Germany appears at pp. 94–96 of Dept. of State Publication 5659.

¹⁸ The Final Act of the London Conference obligates the United Kingdom, and morally commits the United States, to maintain armed forces in Germany, but says nothing about their right to maintain such forces. Op. cit., p. 14.

¹⁹ The Three Powers themselves, under the 1952 Convention, would have conducted their relations with the Federal Republic through ambassadors, who were, however, to “act jointly in matters the Three Powers consider of common concern” under the Contractual Agreements. This provision has vanished from the convention itself—presumably for the same reasons which induced throughout the agreements the replacement of the phrase “The Three Powers and the Federal Republic” by the phrase, “The Signatory States.” There seems to be nothing to inhibit joint action in practice, and in fact the quoted provision now appears in a tripartite agreement. Dept. of State Publication 5659, p. 121.

²⁰ In Sec. V of the Final Act of the London Conference the Three Powers declare that “They consider the Government of the Federal Eepublie as the only German Government freely and legitimately constituted and therefore entitled to speak for Germany as the representative of the German people in international affairs.” Ibid., p. 17.

²¹ Ibid.

²² Cf. Laun, , “The Legal Status of Germany,” this Journal , Vol. 45 (1951), pp. 267 Google Scholar, 268–272. The author, a German lawyer, devotes much time, learning and ingenuity to the elaboration of the argument that Germany, not having been formally annexed by any of the conquerors, still exists, despite the creation of the Federal Republic and the German Democratic Republic, and that this continued existence is recognized by many acts of both the Western democracies and the Communist Powers, such as the continued existence of the Quadripartite Control Authority (also in abeyance), the many references in the legislation of the occupying Powers to “Germany as a whole” and the reference, contained in the Basic Law (Grundgesetz) of the Federal Republic to a future Constitution (Verfassung) to be agreed upon by the whole German nation.

²³ The 1954 amendments substitute the words “reunified” and “reunification” for “unified” and “unification” in a number of instances, e.g., Convention on Relations, Arts. 7(2), 10. The psychology of this refinement is unclear; perhaps it is intended to connote the restoration of Germany as she existed before Hitler, including East Prussia and Silesia.

²⁴ Disputes under Art. 10 are not among those which Art. 9 exempts from the jurisdiction of the Arbitration Tribunal. Conceivably it could be argued that Art. 10 is an agreement to agree, or at least to bargain in good faith, and that the Federal Republic could bring before the Tribunal an arbitrary refusal by the Three Powers, or any one of them, to consent to modifications which are reasonably necessary, or even “advisable,” in the light of some fundamental change.

²⁵ New York Times, Nov. 16, 1954, p. 12; Dept. of State Bulletin, Vol. 31 (1954), pp. 851–852.

²⁶ New York Times, Dec. 21, 1954, p. 6.

²⁷ Dept. of State Publication 5659, p. 16.

²⁸ Ibid., p. 17.

²⁹ Art. 4(2); separate Convention on the Presence of Foreign Forces, Art. 1(2). Curiously enough, Art. 5(1) (b) of the Convention on Relations provides that, “in the event of external attack or imminent threat” thereof, the Three Powers may bring in, as part of their forces, contingents of the armed forces of any nation not now providing such contingents, without the Federal Eepublic’s consent. No such provision is made for additional contingents of the Three Powers’ own forces.

³⁰ Dept. of State Publication 5659, pp. 32–33.

³¹ Ibid.

³² Art. 5(2) of the 1952 Convention on Relations defined as follows the circumstances which would justify the Three Powers in resuming control:

“…an attack on the Federal Republic or Berlin, subversion of the liberal democratic basic order, a serious disturbance of public order or a grave threat of any of these events, and which in the opinion of the Three Powers endangers the security of their forces…”

³³ “Thus the occupant’s rights are double-based, resting on the necessity for providing some established government in a country which is shut off from its ordinary fountain of justice and spring of administration, and secondly, on the military interests of the occupying belligerent himself.” Spaight, War Rights on Land (1911), p. 322. See also Garner, International Law and the World War (1920), Vol. II, p. 77 et seq.

³⁴ Dept. of State Publication 5659, p. 99.

³⁵ The text of the NATO Agreement is reproduced in Exec. T, 82d Cong., 2d Sess., June 16, 1952; also in this Journal, Supp., Vol. 48 (1954), p. 83. See Schwartz, , “International Law and the NATO Status of Forces Agreement,” 53 Columbia Law Review (1953) 1091 CrossRefGoogle Scholar.

³⁶ Convention on Relations, Art. 8(1)(b).

³⁷ Art. 6(1). Art. 6(4), however, provides for the transfer of such cases to German jurisdiction, by agreement between the German authorities and the authorities of the forces. The Supreme Court of the United States has said that members of an invading or occupying force are “not subject during the war to the laws of the enemy or amenable to his tribunals for offenses committed by them.” Coleman v. Tennessee (1879), 96 U. S. 513. Although it is by no means clear that the Supreme Court, even in 1879, would have applied this dictum to a situation in which the occupying government had agreed to subject members of its forces to local courts, any attempt so to transfer to German jurisdiction a member of the United States Forces—which includes dependents—might lead to an attempt to litigate in the American courts the question whether the war and the occupation have been terminated for legal purposes.

³⁸ Art. 9. It can also be argued that, at least under the American view of international law, members of an occupying force cannot be subjected even to the civil jurisdiction of “enemy” courts. Cf. Dow v. Johnson (1880), 100 U. S. 158. However, it is very doubtful that the immunity is so personal to the individual that it cannot be waived by the authorities of the occupying government. Thus, it appears that after World War I the American occupation authorities subjected members of their forces to the civil jurisdiction of German courts in paternity cases. See American Representation in Occupied Germany, 1920–1921, Vol. II, p. 60. In any case, it would seem almost impossible to get the issue before an American court, except through a collateral attempt to enforce the judgment of a German court.

³⁹ Art. 10(3), (4).

⁴⁰ The inclusion of these detailed provisions is attributable less to Allied hypercaution than to the fact that the Federal Republic, having no armed forces, has no legislation dealing specifically with offenses against them. The statutes dealing with offenses against the Wehrmacht of the Third Reich were, of course, among those repealed by the Allies at the outset of the occupation. Otherwise it would have been enough to provide that offenses against the forces of the Three Powers should be assimilated to offenses against the Federal Republic’s own armed forces.

⁴¹ Art. 6(3).

⁴² Arts. 17(1), 25. This is presumably subject to the overall limitation on the strength of such forces provided by the separate convention. See above, p. 130.

⁴³ Art. 18(2), (5); Annex B.

⁴⁴ Art. 19(1). The separate convention (Art. 1(3)) permits additional forces to enter and remain for periods up to 30 days in connection with NATO training activities, but only with German consent.

⁴⁵ Art. 20(1). Here too, however, there is a substantial subtraction from the usual rights of an oceupant, in that such measures, if they are likely to cause serious damage to public or private property, as would often or usually be the case, are subject to review by the Arbitration Tribunal. Art. 20(3).

⁴⁶ Art. 27.

⁴⁷ Art. 48. But “rights relating to hunting and fishing heretofore requisitioned” are to expire one month after the entry into force of the convention (Art. 46(5)). Members of the Occupying Forces have been able to hunt the expensively conserved game of Germany when and as they liked, subject only to the conservation regulations imposed by their own authorities. This issue, like that of chlorination, has aroused irritation out of all proportion to its intrinsic importance, perhaps because there are so many Nimrods among high Allied and German officials.

⁴⁸ Art. 37(1), (2). See below, p, 146.

⁴⁹ Art. 37(3), (4).

⁵⁰ Art. 36(2), (3).

⁵¹ Dept. of State Publication 5659, pp. 37–62.

⁵² Dept. of State Publication 5659, p. 10.

⁵³ Art. 1(1).

⁵⁴ Art. 1(2).

⁵⁵ “The problem has posed itself of according to the Federal Republic full authority over its internal and external affairs while preserving the means of negotiating German unity and of maintaining the rights of the Three Powers in Berlin.” Sen. Exec. Rep. No. 16, 82d Cong., 2d Sess., p. 37.

⁵⁶ Convention on the Settlement of Matters Arising Out of the War and the Occupation, Ch. 6, Art. 2.

⁵⁷ Idem, Ch. 1, Arts. 9, 11.

⁵⁸ Ch. 1, Arts. 6, 7.

⁵⁹ Ch. 5.

⁶⁰ Ch. 10.

⁶¹ Ch. 1, Art. 1.

⁶² Charter of the Arbitration Tribunal (Annex B to the Convention on Relations, 1952), Art. 11(6).

⁶³ Idem, Art. 11(3).

⁶⁴ New York Times, Nov. 16, 1954, p. 12; Dept. of State Bulletin, Vol. 31 (1954), p. 851.

⁶⁵ Convention on Settlement, etc., Ch. 1, Art. 1(1).

⁶⁶ Ch. 1, Art. 1(2).

⁶⁷ “Neutral members,” who cannot be either Germans or nationals of any of the Three Powers, are to be appointed by agreement between the Federal Republic and the Three Powers or, in default of such agreement, by the President of the International Court of Justice. Charter, Art. 1(2), (3).

⁶⁸ Convention on Relations, Art. 9(3).

⁶⁹ Charter, Art. 9(1).

⁷⁰ Convention on Settlement of Matters Arising out of the War and the Occupation, Ch. 1, Art. 6. The Power in question is bound to follow a unanimous recommendation of the Mixed Board set up to review such cases, but that Board includes a representative of each of the Three Powers.

⁷¹ Art. 4(1).

⁷² Art. 2(1).

⁷³ Art. 6(2), (5).

⁷⁴ See note 37 above.

⁷⁵ Art. 6(2) (b).

⁷⁶ Such punishments, imposed by commanding officers for “minor offenses” not warranting a court-martial, include withholding of privileges, restriction to limits, and forfeiture of half a month’s pay (in the case of officers) or reduction to the next inferior grade (in the case of enlisted men). The Articles of War appear at 50 U.S.C. §§ 551–736.

⁷⁷ Art. of War 134. See Manual for Courts-Martial, United States (1951), p. 383. A complex jurisdictional problem might arise where a member of the forces commits a serious offense against German law and is discharged before apprehension. If he were a member of the United States Forces and the offense were punishable by imprisonment for 5 years or more, he could probably be subjected to the jurisdiction of a court-martial under Art. of War 3; but the Germans could probably also claim jurisdiction, since he is no longer a member of the forces and since Art. 3(2) of Ch. One of the Convention on the Settlement of Matters Arising Out of the War and the Occupation, which deprives German courts of jurisdiction of acts of which they would not have had jurisdiction at the time of commission, applies only to those acts antedating the entry into force of the convention.

⁷⁸ Art. 6(5) provides in substance that the Germans may transfer to the authorities of the forces, with their consent, jurisdiction in cases in which an offender against the forces is, although subject to German jurisdiction, not a German; e.g., a Russian saboteur or spy whose trial might embarrass the Federal Republic. It is not entirely clear that an American court-martial would have adequate jurisdiction in such a case. Art. of War 2(12) gives to courts-martial, subject to the provisions of any treaty to which the United States is a party, jurisdiction over “all persons within an area leased by or otherwise reserved or acquired for the use of the United States” outside its territories and possessions, but this could hardly include any territory in Germany save, perhaps, the precincts of a military installation. Art. of War 106 gives general courts-martial and military commissions jurisdiction over “any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces of the United States … or any other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere….” The 1951 Manual for Courts-Martial states (at p. 341) that it is necessary to prove intent to communicate information to the “hostile party” or “enemy.” Assuming that, for this purpose, “time of war” will continue until the conclusion of a formal peace treaty with Germany, a question arises as to whether the Soviet Union and its satellites could, for the purposes of the article, be considered the “enemy” or even “the hostile party.” The same problem arises with Art. of War 104, “Aiding the Enemy.” The Three Powers are, however, permitted to maintain in the Federal Territory “tribunals exercising jurisdiction as contemplated” by any of the conventions. Convention on the Settlement of Matters Arising out of the War and the Occupation, Ch. 1, Art. 4(1). If it were concluded that a court-martial, applying the Articles of War, could not deal adequately with such an offense, recourse might be had to a military commission, whose jurisdiction to protect the security of forces under the command of the authority which appoints it is, while not clearly defined, less circumscribed than that of a court-martial. See Fairman, The Law of Martial Rule (2d ed., 1943), pp. 265 ff., 271 ff. On the other hand, if a German court attempted to try a member of the Soviet forces, he could argue that his government has never terminated its status as a military occupant of Western Germany and that he is, as a matter of international law, immune to the jurisdiction of a German court.

⁷⁹ Art. 17(7) requires that members of the forces obey the requirements of German law as to liability insurance on their private vehicles, although they may insure with any company, German or otherwise, which can pay Deutschemark claims.

⁸⁰ Art. 16(3).

⁸¹ Dow v. Johnson (1879), 100 U. S. 158.

⁸² Art. 37. The question of payment for such requirements is left to the Finance Convention.

⁸³ Art. 39.

⁸⁴ Art. 38(2).

⁸⁵ Charter, Art. 1.

⁸⁶ Art. 39(5).

⁸⁷ Art. 44(1), (5), (7).

⁸⁸ Art. 44(2), Art. 45.

⁸⁹ Art. 33(1) (a). The U. S. forces, at least, are unlikely to purchase within Germany tobacco, coffee, tea or sugar, but coal and alcohol, and possibly gasoline, might be procured from German sources.

⁹⁰ See King, , “Jurisdiction over Friendly Foreign Forces,” this Journal , Vol. 36 (1942), p. 539 Google Scholar.

⁹¹ Convention on Relations, Art. 1(1).