Foreign Relations of the United States, 1946, Council of Foreign Ministers, Volume II

C.F.M. Files: Lot M–88: Box 2080: CFM Minutes

United States Delegation Minutes, Council of Foreign Ministers, Third Session, Twentieth Meeting, Waldorf-Astoria Hotel, New York, December 10, 1946, Noon⁷⁷

New York, December 10, 1946, noon

secret
USDEL(CFM) (46) (NY)20th Meeting

Report of the Deputies

Mr. Byrnes: Shall we open the meeting? The deputy of France has a report to make.

Report of December 9 Meeting

M. Alphand: In accordance with the instructions of the Council, the Deputies have considered at their meeting⁷⁸ the following questions: First, the letter to the Secretary General of the United Nations concerning the consideration and approval by the Security Council of certain provisions of the peace treaty with Italy dealing with the Free Territory of Trieste. The Deputies have approved the draft letter prepared by the French Delegation. The draft letter has been circulated by the Secretariat.⁷⁹

The Deputies have studied the draft prepared by the Trieste Commission.⁸⁰ Points on which agreement could not be reached are the following: Article 32, Commercial Aviation.⁸¹ The American, British, and French Delegations favor the retention of the words, “and for the purpose of refueling and repair”. The Soviet Delegation has suggested to substitute for this expression the words, “including the purposes of refueling and repair”.

Second, Article 11(d).⁸² The American, British, and French Delegations are of the opinion to insert into the Statute a provision along the lines of point 11(b) [11 (d)?] of the recommendations of the Conference concerning the Statute of Trieste. This provision would take note that the units and associates, the economic units and associations bearing an exclusive character with any country are incompatible with the Statute of the Free Territory. The Soviet Delegation has stressed that this question has not been discussed yet by the Council and that the deputies had not received the terms of reference to consider it.

The next question was the question of the Instrument of the Free Port.⁸³ Points on which agreement could not be reached by the Deputies and which consequently are submitted now to the Council are the following: Article 18, Appointment of the Director of the Free Port.⁸⁴ The American, British, and French Delegations consider that the Director of the Free Port should be appointed in accordance with the procedure similar to the procedure provided for the appointment of the Director of Public Security. The Soviet Delegation, on the other hand, considers that the Director of the Free Port should be appointed by the Council of Government.

Article 21, Members of the Commission of the Free Port. The Soviet Delegation considers that Poland, Albania, Rumania, Ukraine, and Switzerland should be parties to the Commission of the Free Port. The American and British Delegations consider that none of these States should participate in the work of this organ. The French Delegation would favor to allow Switzerland and Poland to take part in the work of the Commission of the Free Port.⁸⁵

Articles 23, 24, 25 and 27 have been referred to the Legal Committee. That is all, Mr. Chairman.

Mr. Byrnes: This report having been made, I suggest, gentlemen of the Council, that we proceed to consider it before taking up the report that Mr. Jebb has. If you prefer to submit your report now, that is entirely satisfactory to me. Therefore, I ask Mr. Jebb to make his report.

Report of December 10 Meeting⁸⁶

Mr. Jebb: I suggest that I might just make a report on the remaining articles of the Free Port considered this morning and then perhaps the Ministers could discuss the Free Port as a whole, the whole original instrument. Perhaps I could report on the remaining items discussed this morning.

This morning we resumed our study of the Instrument for the Free Port on the basis of a report by M. Novikov as to the activities of the Trieste Commission last night on the articles submitted to them. As regards Article 23, Functions of the International Commission, the United States, French and U.K. Deputies propose that the Commission should have the right to investigate and consider matters relating to transit between the Free Port and the States served by it, in addition to matters relating to the operation and administration of the Free Port which in the opinion of the Soviet Deputy would constitute the sole function of the Commission. If the proposal of the three delegations is approved—that is to say, the words in brackets in Article 23,⁸⁷—if that proposal is approved, then it will be desirable in the opinion of the three delegations anyhow, that the immunities provided in Article 22 should be extended to territory outside of the Free Territory itself.

As regards Article 26, Parties to the Instrument, the United States, the French, and the U.K. Deputies believe that provision is required in the states and parties to it to pursue obligation of the Free Port Instrument in order to permit the accession of Austria and any other states which may come to use the Free Port itself. The Soviet Deputy believed that it would be possible to stop at the word, “Italy”. Delete the rest, but put a full stop after “Italy”. The other three delegations thought that that would really be hardly worthwhile saying.⁸⁸

Article 24 is an agreed article, but I was asked to draw the attention of the Ministers to the fact that while the article as agreed provides suitable procedure when two parties only are involved, it does not meet the case when more than two parties are involved. The same problem, of course, arises in all the treaties, but in the treaties, you have the conference before the ambassadors who might be able to suggest ways and means of getting around difficulties; whereas in the case of Trieste, the stage of referring it to the ambassadors doesn’t exist. But I was also asked to point out that the agreed Article 24 does provide in its first sentence to the effect that parties mutually agreed—they put in a phrase here—that unless the parties mutually agree other means of settlement shall be provided. That is all I have to say on the Free Port.

Mr. Byrnes: Do I understand, Mr. Jebb, that a report as to the other two items would be made later?

Mr. Jebb: Yes, sir.

Mr. Byrnes: The first question is the signature of protocol for appointment of the Governor and letter of transmittal on Trieste. The letter has been submitted in the three languages, I understand, and therefore, it is not necessary to read it unless there is objection on that. Can’t we agree that it be adopted? I understand that the recommendation of the Deputies is that this letter be signed by the Chairman of this meeting. Is there objection to it?

M. Molotov: No objection.

Mr. Bevin: I agree, Mr. Chairman, you should sign it as the Chairman of today, but it did occur to me that we better wait till Friday to send it because I don’t think the complete texts to be attached will be ready until then.

Consideration of Articles in the Statute for the Free Territory of Trieste

Article 32, Civil Aviation

Mr. Byrnes: The next question is Civil Aviation, Article 32 of the Statute.

M. Molotov: I ask that the Soviet proposal be accepted.

Mr. Bevin: That would make this clause restrictive. If you put “included” in, nothing but commercial aircraft can land for passengers and for passengers only. We do not want to preclude the landing of transit aircraft for refueling and repair. Therefore, since it is clearly only commercial aircraft that can land, we should put “and for refueling and repair”. If you use “included”, that would mean the plane must come in for passengers or goods as well as for fuel or repairs.

M. Molotov: The Soviet Delegation has always maintained that it was a question of commercial aircraft.

Mr. Bevin: I agree, it is clearly commercial aircraft, but there is a misunderstanding, M. Molotov. If we use “including”, a plane can only land for passengers and cannot come in for repair or fuel only.

M. Molotov: The use of the word “and” would not be suitable.

Mr. Byrnes: It is clear from the English text that only commercial planes could land. Our only purpose is to permit a commercial plane to land in an emergency. That being true, why not say it? Would you object to deleting “to land for commercial purposes” and substitute the words “and such commercial aircraft may land for fuel and repairs”? That would give you the assurance you want that a military plane could not land, nor could a private plane land.

M. Molotov: We object to the extension of flights over the Free Territory of Trieste, and I do not conceive for what purpose this ought to be done.

Mr. Byrnes: I am satisfied that there is simply a misunderstanding. At the last time we had this matter under discussion I recall that I said that the language as originally written would permit a private plane to land, and when you objected to it, I immediately suggested that it be changed so as not to give a private plane the opportunity to land, and as it is now written, a private plane could not land. In the language I now suggest I make plain that a private plane could not land for fuel and repairs because I suggest that we say “and such commercial aircraft”. The only objection I can see to accepting the language that you suggest “including fuel and repairs” after the two words “traffic purposes” is this, that a plane could land if it had passengers and was part of a traffic purpose, but if a plane was on a return trip and did not have a passenger and needed fuel, it could not land because it would not be carrying out a traffic purpose. I don’t think you would want to say, under those circumstances, that the fellow should have to crash to earth or violate an agreement.

Mr. Bevin: Why not put a comma after “purposes”, then add “refueling and repair”. It would then read “to use for traffic purposes, refueling and repair”. That meets it.

M. Molotov: Of course, Trieste is not a suitable place for repairs. Let them choose another place. It will be less trouble for all of us if aircraft do not come in for repairs.

Mr. Byrnes: I assume if a man had the choice, he wouldn’t go to Trieste for repairs, but if he was in a serious condition in a mechanical way, I wouldn’t want the responsibility of not permitting him to land if it would save his life. If anybody else does, it is all right with me. In order to move on, I wouldn’t hold up the Treaty, but some pilot would have to suffer for it.

Mr. Bevin: I understand that these words you have in the Russian include coming down for refueling or repair. Is that right?

M. Molotov: Yes.

Mr. Bevin: The difficulty is that the English text doesn’t. Could you let us have this: “includes refueling and repair” in the English text because you already cover it in the Russian text.

M. Molotov: There should be no difference between the English and Russian texts.

M. Couve de Murville: I take it that if the difficulty arises from the fact that the four delegations have not the same construction of the words “commercial purposes”, I wonder if we couldn’t substitute for these words some more precise language, for instance, “to pick up or unload passengers, mail or freight, or for purposes of refueling and repair”. This would say exactly what we all have in mind and would avoid the difficulty linked with the words “for non-commercial purposes”.

M. Molotov: I have already said that the Soviet Delegation objects to a broad interpretation of this paragraph and if we are not prepared to accept either of the two proposals, then let us keep this question in disagreement.

Article 11(d)

Mr. Byrnes: The next question is Article 11(d). That is a part of the proposal of the French Delegation which at the Peace Conference was approved by a vote of 15 to 6. All that it proposes to do is to prevent the United States, the United Kingdom or the Soviet Union or any other government from making a union or association of an exclusive character. I am satisfied that none of us wants it and we ought to take the position that no one else can have it.

M. Molotov: This proposal was understandable when beside it there was a Yugoslav proposal for a customs union with Trieste which we supported. Now this proposal has no meaning, it is academic; therefore, if my colleagues insist, I have no objections.

Mr. Byrnes: Then that is agreed.

Article 18, Appointment of the Director of the Free Port.

Mr. Byrnes: The next question is the appointment of the Director of the Free Port, Article 18. The French, United States and United Kingdom delegations propose that the Director be appointed as a result of the Council of Government submitting a list of candidates to the Governor, the Governor making the appointment. The Soviet Delegation proposed that a Director be appointed by the Council of Government. The language suggested by the United Kingdom, United States and France is the language agreed to which controlled the appointment of the Director of Public Security.

M. Molotov: Why is it not possible to say that the Director will be appointed by the Council of Government with the approval of the Governor. There is still a difference between the Chief of Police and the Director of the Port from the point of view of security and politically. The functions of the Director of the Port are economic, not political. Therefore, we should change the formula for his appointment. I suggest the Council of Government appoint the Director with approval of the Governor.

Mr. Byrnes: There is more reason for the appointment by the agent of the Security Council of the Director of the Port than in the case of the Director of Public Security. Other governments will do business with the port. The Security Council is responsible for showing to all countries that they can deal with the Free Port, an international port, and the Security Council representative will be responsible for the administration of it. How, then, can we turn over the appointment to a purely local individual constituting the Council of Government?

M. Molotov: Perhaps we can accept Mr. Byrnes’ words excluding “or from other persons”. Then the Director will be appointed from any candidates presented by the Council of Government. The purpose of this would be to make the Director of the port acceptable to the Council of Government and to the Governor too.

Mr. Bevin: The trouble would be if the Council of Government put up someone who could not manage the Port, and the Governor would then be forced to appoint him.

M. Molotov: Let us express confidence in the Council of Government as well as in the Governor.

Mr. Byrnes: It is not a question of confidence between the Governor and the Council of Government. It is a question of who is responsible for the management of the Free Port so as to encourage the people of Czechoslovakia, Austria, Yugoslavia and other governments to use the Free Port. We are members of the Security Council and we select the Governor. If it is a matter of confidence, we ought to have confidence in our own man who is appointed Governor.

M. Molotov: The functions of the Security Council with regard to the Free Territory have been laid down and agreed to by us and they do not say anything about the duties of the Director of the Port. This question does not relate to the security and integrity of the Free Territory. What is being proposed now tends to extend the functions of the Security Council. This is undesirable. The Council of Government should participate in the appointment of the Director of the Port, but the final say would be with the Governor. Therefore, we suggest that the Governor approve the Director of the Port. This would ensure that he would be a competent person and that this person will be acceptable to the Council of Government. This in its turn will make for harmonious cooperation between the Director of the Port and the Council of Government. What is wrong about this?

Mr. Byrnes: I think M. Molotov will agree that the Free Port is established by Article 34 of the Statute. Article 17 provides that the Governor as a representative of the Security Council should be responsible for supervising the observance of the present Statute. Following that, the Security Council appoints the Governor and is responsible for the implementation of the Statute. There is no doubt that the Security Council has a responsibility in this matter.

M. Molotov: What Mr. Byrnes has said confirms what I suggested. Neither in 34 nor in 17, nor in 2 is anything said about the duties of the Governor in respect to the Port. He will have the functions of supervision of the port and of the operation of the port. In addition the Soviet proposal provides for the approval of the Director of the Port by the Governor so that means we agree to extend the rights of the Governor in this respect, but we think the best way to appoint the Director of the Port is by agreement between the Council of Government and the Governor. The Council should submit a list of candidates but the final choice will be with the Governor. If there are disputes, they will go the Security Council. Our proposal guarantees efficient operation of the port.

Mr. Bevin: Then you would take out the brackets in the paragraph?

M. Molotov: Yes.

Mr. Bevin: Would you accept that the Council of Government should look for “suitable” candidates or that the Council of Government shall submit to the Governor a list of “suitable candidates” or “competent candidates”?

M. Molotov: I agree.

Mr. Bevin: Perhaps a better word would be “qualified.”

(Agreed.)

Then it is suggested that if there is a dispute on this appointment, the Governor refers the matter to the Security Council.

M. Molotov: I agree.

Mr. Byrnes: Is that in the case of disagreement in order to settle a dispute?

Mr. Bevin: Yes.

Mr. Byrnes: I agree.

Mr. Bevin: And then you would delete the words “or from among other persons”?

Mr. Byrnes: Yes.

Mr. Bevin: So we leave the last words in brackets in? I have no objection to that. The Governor may also dismiss the Director upon recommendation of the International Commission or the Council of Government. The Director shall not be a citizen of Yugoslavia or Italy. Those words are superfluous.⁸⁹

Mr. Byrnes: We are agreed on that. We will go on to the next item.

Article 21, Composition of the International Commission.

Mr. Byrnes: The question here is as to the governments to be represented on the Commission. The Soviet Delegation wants to add Poland, Albania, Rumania and the Ukraine. We want to add Switzerland. The U.K. and France agree to Poland and Switzerland, and there is disagreement as to the others.

Mr. Bevin: I think this ought to be built up with the idea of trade of the Free Port and not from the political point of view. I can’t see that the Ukraine, Rumania and Albania come into the trade picture.

M. Molotov: Let us accept the French proposal and add Switzerland and Poland.

(Agreed.)

Article 23, Functions of the International Commission.

Mr. Byrnes: The question is whether or not there shall be included the language in brackets.⁹⁰ It is supported by France, the United Kingdom and the United States.

M. Molotov: The Soviet Delegation believes that the functions of the Commission for the Free Port should not be extended. The words in brackets tend to extend these functions beyond the affairs of the Free Port to other states. The Commission should deal with the affairs of the Free Port, and investigate any complaints pertaining to the port, but if there are any matters that go beyond the port, such matters should be referred to the states concerned for direct settlement. The Soviet Delegation proposes to delete the words in brackets “or to transit between the Free Port and the states which it serves”, keeping the words “including unification of handling, procedures”.

Mr. Byrnes: May I suggest this compromise? Let us say “all the technical aspects of transit between the Free Port and the states which it serves”.

(Agreed.)

Article 22

Mr. Byrnes: Is it essential that we consider Article 22?

M. Couve de Murville: Delete the two lines in brackets.⁹¹

Mr. Byrnes: Yes. I don’t think they are so essential.

(Agreed.)

Article 26

M. Molotov: Is this article necessary now that we have agreed as to the composition of the Commission?

Mr. Byrnes: It was suggested that as Austria and Switzerland will be represented on the Commission it was essential for them to notify either the Security Council or the Government of the French Republic, where the treaties are to be deposited, if the treaties were entirely satisfactory. It would provide that Austria and Switzerland, when members of the Commission, would assume the obligations of the treaty. We think it right that those two likewise should assume the obligations.

M. Molotov: We have no objections, but we should indicate that the French Government will be the depository of the instrument and should be notified and not the Security Council.

Mr. Byrnes: We will substitute “the Government of the French Republic” for the words “Security Council”.

Article 32, Commercial Aviation

M. Molotov: Couldn’t we finish that question on commercial aviation? That is the only point that remains in disagreement that pertains to the Statute.

Mr. Bevin: I think you ought to take my comma.

Mr. Byrnes: This is one time I am satisfied that our disagreement is a misunderstanding of language. I really don’t believe that you would object to a commercial plane which has been granted the right to fly over the territory without landing, landing there in an emergency.

M. Molotov: Under international rules it will be able to land, and there is no necessity to go beyond the scope of this code.

Mr. Byrnes: If it is correct that it is recognized in international law, I do not know it. I know that these words are included in every air agreement and they are not misunderstood. I submit that when we speak of the international law, it is there only by agreement because it is generally agreed between countries. It is a reciprocal right. The Free Territory, as it is now established, would have no such agreement unless we make provision for it.

M. Molotov: International rules which are in operation are obligatory for Trieste as well.

Mr. Byrnes: But there is no international rule. What rule there is is established by agreement between countries. That is why it is necessary to include here the same arrangements that are included in all these agreements. The difficulty is that where you ask to insert the words “including refueling and repair” is connected with the use for traffic purposes only.

M. Molotov: No such restrictions exist in the language.

Mr. Bevin: The point about this is are we dealing just with the Free Territory or are we dealing with commercial aviation for all of the treaties?

M. Molotov: It applies to all of the treaties.

Mr. Bevin: I thought the Economic Committee had agreed on the other treaties.

M. Molotov: The disagreement remains.

Mr. Bevin: Instead of using the words “to land for non-commercial purposes” could we say “this would include the right to refuel and repair”? This isn’t such a serious matter for the Free Territory, but if you were going to make it apply to all the treaties, it is a very serious matter. This is a thing in which great danger might arise with planes flying the great distances that they are. I assure M. Molotov that the language here suggested looks very restricted. What we want is that the language include the right for refueling and if there is any damage, for repair. That is all. If you use the words “this will include the right to refuel and repair” at the end instead of the words “and to land for non-commercial purposes” I think it will become explicit and clear.

M. Molotov: Our language is intended to avoid too broad an interpretation of one’s rights as regards civil aviation in the Free Territory, and whereas there is no relevant provision in the Treaty, one should be guided by respective international rules. They are quite enough.

Mr. Bevin: Why not let the Legal and Drafting Committee have a look at it?

Mr. Byrnes: May I say one thing? We must not forget that that plane when it lands is subject to the police regulations of the Free Territory or any other country it lands in.

Future Meetings

Mr. Bevin: There are some outstanding matters too with the Economic Committee. Could we agree to call for their report tomorrow morning, or for the Deputies.

Mr. Byrnes: You wish the Economic Committee to report to the Deputies in the morning—at what hour?

Mr. Bevin: Ten o’clock.

(Agreed.)

Mr. Byrnes: When will the Council meet?

Mr. Bevin: 11:30.

(Agreed.)

The meeting adjourned at 2:15 p.m.

77. For a list of persons present at this meeting, see the Record of Decisions, infra.
78. Under reference here is the 130th Meeting of the Deputies, December 9, 1946, 11 a.m.
79. The draft letter under reference, CFM(46) (NY)67(Revised), December 9, 1946, not printed, was virtually identical with the letter as sent to the United Nations Secretary General on December 12, 1946, p. 1559.
80. Under consideration here is the draft Permanent Statute for the Free Territory of Trieste, CFM(46) (NY)62, not printed. The Permanent Statute was included in the Treaty of Peace with Italy as Annex VI.

81. In the draft Permanent Statute, CFM(46) (NY)62, article 32 read as follows:

    • “1. Commercial aircraft registered in the territory of any one of the United Nations which grants on its territory the same rights to commercial aircraft registered in the Free Territory, shall be granted the rights to fly over the Free Territory without landing, to use for traffic purposes such airports as may be designated by the competent authorities of the Free Territory, and to land for non-commercial purposes.
    • “2. These rights shall not be subject to any restriction other than those imposed on a basis of non-discrimination by the laws and regulations in force in the Free Territory and in the countries concerned or resulting from the special character of the Free Territory as neutral and demilitarized.”

82. Under reference here is article 16, paragraph 11, subparagraph d, of the Recommendations by the Paris Peace Conference on the Draft Peace Treaty with Italy, vol. iv, p. 897.
83. Under consideration at this point is the draft Instrument for the Free Port of Trieste, CFM(46) (NY)68, December 9, 1946. The Instrument was included in the Treaty of Peace with Italy as Annex VIII.

84. Article 18 of CFM(46) (NY)68, December 9, read as follows (brackets in the source text):

    “The administration of the Free Port shall be carried on by the Director of the Free Port who will represent it as a juridical person. [The Director will be appointed by the Council of Government of the Free Territory.] [The Council of Government shall submit to the Governor a list of candidates for the post of Director of the Free Port. The Governor shall appoint the Director from among the candidates presented to him, or from among other persons, after consultation with the Council of Government. He may also dismiss the Director upon the recommendation of the International Commission or the Council of Government. The Director shall not be a citizen of Yugoslavia or Italy.]

    “All other employees of the Free Port will be appointed by the Director. In all appointments of employees preference shall be given to citizens of the Free Territory.”

85. In CFM(46) (NY)68, article 21 provided for the establishment of an International Commission of the Free Port consisting of one representative from the Free Territory and from each of the following states: U.S.S.R., United States, United Kingdom, France, Yugoslavia, Italy, Czechoslovakia, Austria, and Hungary.
86. The reference here is to the 131st Meeting of the Deputies, December 10, 10 a.m.
87. The words in brackets in article 23 of CFM(46) (NY)68 were “or to transit between the Free Port and the States which it serves, including unification of handling procedures”.

88. Article 26 of CFM(46) (NY)68 read as follows (brackets appear in the source text and indicate unagreed language):

    “[For the purposes of the present instrument a State shall be considered as having assumed the obligation of this Instrument if it is a party to the Treaty of Peace with Italy or has notified the Security Council of its assumption of such obligations.]”

89. For the amended wording for article 18 as adopted by the Council of Foreign Ministers, see the Record of Decisions, infra.
90. The language in brackets in article 23 is quoted in footnote 87, p. 1497.
91. The language in brackets in article 22 was as follows: “and in the territories of the States which have assumed the obligations of the present instrument.”