Instrument of surrender for Germany.
The text recommended by E.A.C.  on 25th July  has now been studied here and on the understanding that it is open to reconsideration in the light of replies from the European Allies to the Commission's letter of 25th July, we are prepared to approve its substance.
2. We have also now been informed that the Soviet Government approve the draft text as recommended by E.A.C.
3. We have given most careful consideration in consultation with the United Kingdom representative  on the E.A.C. to all replies  received to my telegram of 11th August, D.No. 1129.  The choice before us is either- (a) to reopen discussion in E.A.C. of wording of preamble and Article 12(a) or- (b) to approve the text as it stands and to try to meet your criticisms in some other way.
We have, therefore, reviewed the course of negotiations so far.
4. Preamble. The term 'On behalf of' appeared in draft terms which we submitted to E.A.C. (my despatch 20th January, D.No. 9 ) and as stated in my telegram 4th April, D.No. 502 , the United Kingdom representative was instructed to obtain inclusion of this term if possible. We should have greatly preferred it to the term 'In the interests of' and the United Kingdom representative made strenuous and repeated efforts to secure it. This was firmly resisted by the United States representative on the ground that 'on behalf of the United Nations' would require prior communication of the terms to all United Nations and their explicit authority for signature and that this would almost certainly prove impracticable. The Soviet representative  supported the United States arguments and was also opposed on the ground that it was unnecessary to consult other United Nations. We did not admit these contentions, but it became clear that prolongation of the argument was unlikely to lead to a more satisfactory result. The United Kingdom representative was therefore authorised to acquiesce in 'In the interests of' provided that it was agreed in the Commission that the views of governments most directly affected should be sought before the draft instrument was finally approved. Despite the Soviet representative's reluctance, we did, as you know, succeed in securing consultation by E.A.C. with the European Allies.
5. We agree that the terms of the preamble in the draft of 25th May were open to criticism that Germany would be explicitly surrendering to the supreme commands of United Kingdom, United States and Union of Soviet Socialist Republics. The recommended text, however, is framed on the basis that Germany announces her unconditional surrender without it being stated to whom, and the representatives of the three supreme commands announce the terms with which Germany shall comply. We think this an improvement on the earlier wording.
6. Article 12(a). 'The United Kingdom, United States and Union of Soviet Socialist Republics shall possess supreme authority with respect to Germany.' We sympathise with the view that other countries should be associated in some way with the exercise of this authority. The United States draft originally contained the phrase 'In the interests of the United Nations', but we were advised that its inclusion might leave a loophole for the Germans to challenge some particular action taken under it on the ground that it was not 'In interests of the United Nations' or that proof was required that it was. We, therefore, authorised the United Kingdom representative to propose its deletion and this was agreed to by the United States and Soviet representatives. We assume that you would have felt the same objection to it here as in the preamble. On the other hand the United States representative would probably have made the same objections to 'On behalf of' in Article 12(a) as in the preamble. The course of discussions indicates that neither the United States, nor the Soviet representative would have agreed to the substitution of 'United Nations' for 'United Kingdom, United States and Union of Soviet Socialist Republics'.
7. We regret that in the light of the foregoing account of the long and arduous E.A.C. discussions on these points, we see no prospect of securing agreement on alterations of wording of the two passages in question by insisting that E.A.C. should reconsider the recommended text solely for this purpose, although should observations of the European Allies lead to the reopening of discussion of the instrument, we will certainly bear the two passages in mind in case suitable opportunity should then occur of amending them. Reference back to the E.A.C. would, moreover, have a grave drawback from our standpoint that it would delay other pressing business such as Protocols on the occupation of Germany and Austria, the control machinery and orders and proclamations to be issued in pursuance of the surrender terms, none of which the Soviet representative was prepared to discuss until the instrument itself was out of the way. In these circumstances we have considered what alternative possibilities were open to us under paragraph 3(b) above.
8. We welcome the suggestion that the governments most directly concerned in the war against Germany should be invited to assent to the terms before presentation to the Germans and to authorise signature on their behalf and to declare publicly that they had been consulted and had agreed and given authority for signature.
The United Kingdom representative on the E.A.C. will accordingly be instructed to press for the draft instrument to be communicated to these governments. We feel that it would be impracticable to include all the United Nations and that if the proposal is to have any chance of adoption it will need to be limited to the Dominions and European Allies with, perhaps, China and Brazil. We contemplate that the terms would be communicated to other United Nations immediately before presentation to the Germans.
9. If a proposal on these lines is adopted, we think that separate statements would be preferable to, a joint declaration in view of the practical difficulties of concurring terms among so many different governments.
10. As to Article 12(a), it was never our intention that United Kingdom, United States and Soviet Governments should exercise powers with respect to Germany without consultation as necessary with other countries concerned. Paragraph 4(b) of our proposals on the High Commission machinery for Germany (my despatch 25th March D.No. 32 ) suggested formation of an advisory council, the nature and composition of which were being studied. Preliminary conclusions of is study were embodied in a memorandum  given to your officials during the Prime Ministers' meeting in May. We think that provision for an advisory council would go far to meet the objections expressed to Article 12(a) as it stands. Its scope and functions would need to be agreed with United States and Soviet Governments, and United Kingdom representative on E.A.C.
will be instructed to press our proposal.
11. We trust that you will agree that these instructions to the United Kingdom representative as described in paragraphs 8 and 10 above will substantially meet the points made in your telegrams and we hope that you and the other British Commonwealth Governments will authorise acceptance on their behalf of German surrender and signature of these terms when the time comes.
12. The text of the communication which the United Kingdom representative is sending to the United States and Soviet representatives on the E.A.C. is in my immediately following telegram.