Instrument of surrender for Germany.

The text recommended by E.A.C. [2] on 25th July [3] 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 [4] on the E.A.C. to all replies
[5] received to my telegram of 11th August, D.No. 1129. [6] 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 [7]) and
as stated in my telegram 4th April, D.No. 502 [8], 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 [9]
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 [10]) 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 [11] 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. [12]