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Agreement between the United Kingdom, Canada, Australia, New Zealand, the Union of South Africa, India and Pakistan of the one part of the Federal Republic of Germany of the other part regarding the War Cemeteries, Graves and Memorials of the Commonwealth Countries in the Territory of the Federal Republic of Germany [1957] CATSer 12 (12 June 1957)

E102593 - CTS 1957 No. 36

AGREEMENT BETWEEN THE UNITED KINGDOM, CANADA, AUSTRALIA, NEW ZEALAND, THE UNION OF SOUTH AFRICA, INDIA AND PAKISTAN OF THE ONE PART AND THE FEDERAL REPUBLIC OF GERMANY OF THE OTHER PART REGARDING THE WAR CEMETERIES, GRAVES AND MEMORIALS OF THE COMMONWEALTH COUNTRIES IN THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY

The United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, India and Pakistan (herein­after referred to as “the Commonwealth countries”) of the one part and the Federal Republic of Germany of the other part.

Desiring to make provision with regard to the Cemeteries, Graves and Memorials of Members of the Armed Forces of the Commonwealth Countries fallen as a result of the wars of 1914-18 and 1939-45 and interred in the Territory of the Federal Republic of Germany, and

Having regard to the provisions of the Agreement signed at Bonn on the fifth of March, 1956, between the Commonwealth Countries, the Federal Republic of Germany and the French Republic regarding questions affecting German War Graves in cemeteries in France in the permanent care of the Imperial War Graves Commission,

Have agreed as follows:

ARTICLE 1

(1) The present Agreement applies to Cemeteries, Graves and Memorials in the Territory of the Federal Republic of Germany in which are buried the bodies of members of the Armed Forces of the Commonwealth Countries fallen in the wars of 1914-18 and 1939-45 and the Memorials erected, or which may be erected, in their honour.

(2) In the present Agreement the expression “Commonwealth War Cemeteries, Graves and Memorials” includes the Cemeteries, Graves and Memorials of the wars of 1914-18 and 1939-45 situated in the Territory of the Federal Republic of Germany. Where necessary the Cemeteries, Graves and Memorials of the two wars are distinguished as “Commonwealth 1914-18 War Cemeteries, Graves and Memorials” and “Commonwealth 1939-45 War Cemeteries, Graves and Memorials.”

ARTICLE 2

(1) The Imperial War Graves Commission incorporated by Royal Charter dated the twenty-first day of May 1917 (hereinafter referred to as “the Commission”), is recognised by the Federal Republic of Germany as the sole authority charged on behalf of the Commonwealth Countries with the permanent care of Commonwealth War Cemeteries, Graves and Memorials in the Territory of the Federal Republic of Germany.

(2) The Imperial War Graves Commission has the legal status of a juridical person in the Federal Territory.

ARTICLE 3

(1) The Federal Republic of Germany shall place at the disposal of the Commission the lands required for the permanent Commonwealth War Cemeteries, Graves and Memorials of the 1939-45 war for use by the Commis­sion free of charge and in perpetuity for the purposes set forth in the present Agreement.

(2) The Federal Republic of Germany undertakes to invite the appropriate German authorities to grant free of cost the land required for Commonwealth 1939-45 War Graves situated in public cemeteries in the Federal Territory.

(3) In regard to the lands in use for the Commonwealth 1914-18 War Cemeteries, Graves and Memorials in the Territory of the Federal Republic of Germany the Federal Republic of Germany undertakes to maintain their present legal status.

ARTICLE 4

(1) The Commission may at its discretion transfer into Commonwealth War Cemeteries such Commonwealth War Graves as it may deem necessary, whether on account of the isolated position of any such graves or for any other reason.

(2) The Federal Republic of Germany shall arrange for the competent German authorities to grant the necessary permits for the exhumation and transport of the bodies to be so transferred.

(3) If, in order to group together any such graves as are referred to in paragraph (1) of this Article, the Commission shall recognise as necessary the creation of new Cemeteries, it shall submit its proposals to the Government of the Federal Republic of Germany. This Government will favourably consider whether steps can be taken for the acquisition of the land required for this purpose in accordance with the provisions of Article 3 of the present Agreement.

ARTICLE 5

(1) The Federal Republic of Germany recognises the right of the Commis­sion at its own cost to ensure and provide for the lay-out, construction, maintenance and control of the Commonwealth 1939-45 War Cemeteries.

(2) The Commission is accordingly authorised to enclose such cemeteries, to lay them out and construct them on a system approved by the Commission, to erect in such Cemeteries sepulchral monuments or other structures to make plantations in them, to enact regulations governing visits to such Cemeteries and to select persons to take charge of them who may be nationals of the Commonwealth Countries.

(3) Questions relative to the lay-out of Commonwealth 1939-45 War Graves situated in publicly or privately owned Cemeteries shall be decided by the Commission in Agreement with the competent German authorities. If neces­sary, the Government of the Federal Republic of Germany will make available its good offices to the Commission for this purpose.

(4) The Commission may, in Agreement with the competent German authorities, provide for the lay-out of Commonwealth 1939-45 War Graves situated in publicly-owned Cemeteries which also contain German or other military Graves. When the Commission considers it desirable that a common system of lay-out should be adopted for a mixed Cemetery, it shall submit its proposals to the competent German authority.

ARTICLE 6

(1) As regards the Commonwealth Cemeteries and Memorials: of the 1914-18 war the Federal Republic of Germany recognises the rights as hereto­fore enjoyed by the Commission to continue to provide for the lay-out and maintenance of the said Cemeteries and Memorials, as well as the right to issue internal regulations and to exercise control within the Cemeteries, and to enact regulations governing visits to such Cemeteries and to select persons to take charge of them, who may be nationals of the Commonwealth Countries.

(2) The Federal Republic of Germany further agrees that the Commission shall be at liberty, if it sees fit, to utilize vacant space in any such Cemeteries for the reception of Commonwealth 1939-45 War Graves and to establish such additional monuments, structures or plantations and make such improvements therein as it may deem necessary.

ARTICLE 7

The bodies of members of the Armed Forces of the Commonwealth Countries interred in the Territory of the Federal Republic of Germany shall not be removed from the Territory of the Federal Republic of Germany without the consent of the Commission.

ARTICLE 8

(1) Requests for permission to erect any monument designed to recall a feat or arms of the Armed Forces of the Commonwealth Countries or of any unit of those Forces shall be presented by the Commission to the Government of the Federal Republic of Germany for its concurrence.

(2) Should a request of this nature be made direct to the Government of the Federal Republic of Germany, the latter shall refer it to the Commission before giving any decision, and shall consider in Agreement with the Com­mission what action shall be taken thereon.

ARTICLE 9

In order to represent the Commission in the Territory of the Federal Republic of Germany in its relations with the appropriate authorities, and especially to exercise in the name of the Commission all or part of the rights reserved to it under the present Agreement, the Commission shall appoint a Joint Committee to be composed as laid down in Articles 10 and 11 of the present Agreement. This Committee shall be competent to perform in the name of the Commission and within the limits of the powers delegated to it by the latter, all civil acts necessary to enable it to fulfill its objects.

ARTICLE 10

(1) Except as provided by Article 11 of the present Agreement, the Committee referred to in Article 9 shall be composed of not more than twelve members, comprising not more than four honorary members, of whom two shall represent the Federal Republic of Germany and the others the Common­wealth Countries, and not more than eight official members, of whom four shall represent the Federal Republic of Germany and the others the Commonwealth Countries.

(2) The members of the Committee shall be appointed by the Commission. Nevertheless as far as the German members are concerned the appointment shall take place on the recommendation of the Government of the Federal Republic of Germany, which recommendations shall be requested and transmitted through the diplomatic channel.

(3) The German honorary members shall be chosen from persons who have won distinction in public life, in Letters, Art or Science.

(4) The German official members shall be chosen as representing such Departments of the Government of the Federal Republic of Germany or such recognised German Organisations as may be agreed upon between the Govern­ment of the Federal Republic of Germany and the Commission. They shall cease to form part of the Committee from the day when they vacate their functions in the Departments or Organisations concerned. The Government of the Federal Republic of Germany undertakes to notify the Commissions of all changes which may take place among the German official members.

(5) The Commission shall appoint the Secretary-General of the Committee.

ARTICLE 11

To facilitate the examination and solution of questions affecting German war graves situated in Commonwealth War Cemeteries in France the French Government shall be invited to designate one honorary member and one official member of the Committee referred to in Article 9 of this Agreement who shall be invited by the Committee to participate in the proceedings of the Committee concerning the War Graves in question.

ARTICLE 12

(1) Import duties (Customs dues and Consumption taxes, including Turn­over Equalisation Tax) shall not be levied on articles imported into the Territory of the Federal Republic of Germany by the Commission for the purpose of fulfilling its functions if the Commission furnishes the customs posts with a certificate declaring the purposes for which the articles are to be used.

(2) The Federal Republic of Germany undertakes to exempt the Com­mission from the duties on mineral oil products acquired by it in the Territory of the Federal Republic of Germany for use in motor vehicles in their service.

(3) The Commission shall be exempt from any taxes relating to any income or property which it may have in the Federal Republic of Germany for the purpose of carrying out its official functions.

(4) By way of adjustment of the Turnover Tax chargeable within the scope of the present Agreement on deliveries or services to the Commission four per cent of the amounts of the accounts produced shall be refunded upon application by a Finance Office to be designated by the Federal Minister of Finance.

ARTICLE 13

In exercising the rights conferred by the present Agreement, the Commis­sion shall conform to the laws and regulations in force in the Territory of the Federal Republic of Germany except in so far as it is exempted therefrom under the provisions of the present Agreement.

ARTICLE 14

This Agreement shall also apply in Land Berlin unless the Government of the Federal Republic of Germany shall make a declaration to the contrary to each of the other Contracting Parties within three months after the entry into force of the present Agreement.

ARTICLE 15

As soon as the Agreement has received in the Federal Republic of Germany the assent required under the Constitution, the date of its entry into force shall be fixed by an exchange of Notes between the Government of the Federal Republic of Germany and the Governments of the other Contracting Parties.

IN WITNESS WHEREOF the undersigned, duly authorised in that behalf have signed the present Agreement and affixed thereto their seals.

DONE at Bonn, this fifth day of March, 1956, in English and German, both texts being equally authoritative, in a single copy which shall be deposited in the archives of the Government of the Federal Republic of Germany, and of which certified copies shall be transmitted by that Government to each of the other Contracting Parties.

Von Brentano

FOR THE FEDERAL REPUBLIC OF GERMANY

F. R. Hoyer Millar

FOR THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

C. S. A. Ritchie

FOR CANADA

J. D. L. Hood

FOR AUSTRALIA

T. Clifton Webb

FOR NEW ZEALAND

A. H. Mertsch

FOR THE UNION OF SOUTH AFRICA

A. C. N. Nambiar

FOR INDIA

J. A. Rahim

FOR PAKISTAN

EXCHANGE OF NOTES

I

The Canadian Ambassador to the Federal Republic of Germany to the Federal Minister for Foreign Affairs of the Federal Republic of Germany

CANADIAN EMBASSY

BONN, March 5, 1956

His Excellency Dr. Heinrich von Brentano,
Federal Minister for Foreign Affairs,
Foreign Office,
Bonn

Excellency,

On the instructions of my Government I have the honour to inform you that the Government of Canada undertakes to grant the Government of the Federal Republic of Germany in the matter of the care and maintenance of graves of former members of the German armed forces interred in Canada treatment which having regard to the number of such graves corresponds to and is not less favorable than the treatment granted by the Government of the Federal Republic of Germany in accordance with the provisions of the Agreement signed this day between the United Kingdom, Canada, Australia, New Zealand, South Africa, India, and Pakistan on the one part and the Federal Republic of Germany on the other part concerning the care and maintenance of the Commonwealth Graves in the Federal Republic of Germany. The Government of Canada will accordingly make arrangements through diplomatic channels with the Government of the Federal Republic of Germany for the granting of appropriate facilities in any of the Canadian territories in question and will take the necessary steps to ensure that every possible assistance shall be afforded the competent German agencies in the tracing of such graves.

If the proposals described above meet with the approval of the Government of the Federal Republic of Germany I have the honour to suggest that this Note and the reply of Your Excellency to the same effect be deemed to be an Agreement concluded between the two Governments in this matter.

C. S. A. Ritchie,

Ambassador

II

The Federal Minister for Foreign Affairs of the Federal Republic of Germany to the Canadian Ambassador to the Federal Republic of Germany

(Translation)

MINISTRY OF FOREIGN AFFAIRS

BONN, March 5, 1956

His Excellency The Canadian Ambassador,
Mr. Charles S. A. Ritchie,
Bonn

Excellency,

I have the honour to acknowledge receipt of your Note of today which has the following wording:

(See Note I)

"On the instructions ............ in this matter."

I have the honour to inform you that the contents of your above Note meet with the approval of the Government of the Federal Republic of Germany, and that the latter deems this Note and my reply of this day to be an Agreement concluded between our two Governments.

Accept, Excellency, the renewed assurances of my highest considerations.

Brentano