Foreign Relations of the United States, 1951, European Security and the German Question, Volume III, Part 2

CFM files, lot M–88, box 187, questions affecting Berlin

The Chairman Secretary of the Allied Kommandatura, Berlin (Gaugain) to the Secretary-General, Allied General Secretariat, at Frankfurt

confidential

Berlin, December 5, 1951.

BK/AHC(51)120.

Subject: Implementation of the Foreign Ministers’ Instructions Relative to Berlin¹

• 1. In accordance with the request contained in SPCOM/Sec(51)9 of 26th October 1951,² the Commandants have further studied the fields in which reserved powers in Berlin must remain and the extent of the powers to be reserved in each field.
• 2. There are three classes of control which the Allied authorities must retain in Berlin:
  • (a) ultimate control in all fields. The Allied Kommandatura cannot, for political-legal reasons, surrender this control, although it can delegate some powers or refrain from exercising them;
  • (b) control over action in fields in which the Allied Authorities in Berlin have particular obligations and responsibilities or which affect the special situation of the city. Those are at present covered by para 2(a), (c), (e), (f), (i) and (j) of the current Statement of Principles;³
  • (c) controls to ensure that the Berlin authorities act in accord with Allied legislation at present in force, with Allied policy and, insofar as practicable, with undertakings of the Federal Government under the contractual agreements.
• 3. To secure (a) above, the Commandants are agreed that they must retain an unquestionable right to intervene in case of need. To secure (b) above, the Commandants are agreed that in the specified fields they must be able to act themselves in certain instances (which would be kept to the necessary minimum) and be informed of German intention to act. To secure (c) above the Commandants find themselves in a difficulty. They consider that, in general, all that is necessary in these fields is to ensure that the Berlin authorities adhere to the substance of the contractual agreements. Berlin will not, however be bound by those agreements and it is contemplated that no direct mention will be made of them in the Berlin instrument of control. The Commandants have accordingly considered several devices to meet the case, and these are embodied in the attached drafts.
• 4. In submitting these drafts, the Commandants wish to point out that the wording of the powers and rights retained has been taken, for the most part, from the current Statement of Principles and is subject to modification in the light of the final texts and scope of the contractual agreements.
• 5. The US Commandant prefers the draft attached as Annex “B”. The French and British Commandants prefer that attached as Annex “A”, although they see some merit in paragraph 4 of Annex “B” as a possible solution of the difficulty referred to in paragraph 3 above.
• 6. Both drafts refer, in several instances to “Occupation Authorities” and “occupation legislation”. This phraseology has been taken over from the present Statement of Principles, but, in the opinion of the US Commandant, it would be preferable in the new instrument of control to eliminate use of the term “occupation”. He suggests that if this cannot be done otherwise, it might be accomplished, without detriment to clarity, by revising Allied Kommandatura Law No. 2 (“Definitions”). The French and British Commandant see little advantage in abandoning the old terminology, particularly for “occupation legislation”, and little disadvantage in underlining the difference between the Allied position in Berlin and the Federal Republic.
• 7. The Commandants wish to make the following comments which apply to both of the attached drafts:
  • (a) As the progress of the Allied programme of restitution in Berlin is far behind that in the Federal Republic, the contractual agreements may not fully cover Allied requirements in Berlin. It may therefore be necessary to consider retaining restitution as a specifically reserved right under paragraph 3 after the provisions of the contractual agreements have been determined.
  • (b) Reparations, decartelization, deconcentration and foreign interests and claims should be left within the scope of paragraph 4.
  • (c) “Respect for the Constitution” is eliminated from the specifically reserved fields but is covered by the insertion of the word “status” in paragraph 2, and by paragraph 1, which defines Berlin’s rights, etc., as those “set forth in its Constitution”. Notification is still required for amendments to or replacement of the Constitution, but the requirement of prior approval has been renounced.
  • (d) For ordinary purposes, control over trade and exchange, monetary and fiscal policy and other economic matters has already been transferred to the Federal Republic. In paragraph 2, powers are reserved which would cover these matters in an emergency. These subjects are not therefore retained in paragraphs 3 or 4.
• 8. The British and US Commandants recommend that, before a final decision is taken on the attached drafts or on any formula which the Allied High Commission might itself propose, they be given the opportunity to seek the views of the Berlin Authorities on such aspects of any agreed draft as might appropriately be discussed with them. The French Commandant is of the opinion that those aspects to be discussed with the Germans should be clearly specified and that any discussions on the draft as a whole should be avoided.

Gaugain Commandant

Annex “A”

confidential

Draft “Second Instrument of Revision of the Statement of Principles” [French-British] Draft “Declaration of Rights” [U.S.]⁴

The Allied Kommandatura hereby promulgates the following (Instrument which revises and replaces—French and British) (Declaration which supersedes—U.S.) the Statement of Principles of 14th May 1949 and The First Instrument of Revision thereof dated 7th March 1951.

• 1. Berlin shall have all the rights, powers and responsibilities set forth in its Constitution of 1950 as approved by the Allied Kommandatura on 29th August 1950, subject only to the provisions hereinafter set out.
• 2. The Allied Authorities retain the power, if they deem it necessary, to take such measures as may be required to fulfill their international obligations, to insure public order and to maintain the (status, economy and security of Berlin—French and British) (status and security of Berlin, and to take action in all matters relating to the maintenance of Berlin’s trade and communications—US).
• 3. The Allied Kommandatura reserves rights in the following specific fields.
  • (a) Disarmament and demilitarization, including related fields of scientific research, prohibitions and restrictions on industry and civil aviation;
  • (b) Relations with authorities abroad. This right will, however, be exercised so as to permit the Berlin authorities to assure the representation of Berlin interests in this field by suitable arrangements;
  • (c) Protection, prestige and security of the Allied Forces, their dependents, employees and representatives, their immunities, the satisfaction of occupation costs and their other requirements;
  • (d) Authority over the Berlin police to the extent necessary to insure the security of Berlin;
  • (e) Control of the care and treatment in German prisons of persons charged before or sentenced by the courts or tribunals of the Occupying Powers or Occupation Authorities; over the carrying out of sentences imposed on them and other questions of amnesty, pardon or release in relation to them.^*
• 4. In the following fields, the Allied Kommandatura will not intervene so long as the Berlin Authorities act in accordance with legislation and other measures of the Occupation Authorities and with agreements entered into by their governments.^† (The French element reserves its position regarding the final phrase beginning with “and with agreements”):
  • (a) Restitution, reparations, decartelization, deconcentration, foreign interests in Berlin and claims against Berlin, or its inhabitants;
  • (b) Displaced persons and the admission of refugees.
• 5. Berlin legislation will become effective without prior review by the Allied Kommandatura. In case of inconsistency with Allied legislation, with the provisions of this_________ or with other measures of the Occupation Authorities, Berlin legislation will be subject to repeal or annulment by the Allied Kommandatura. If Berlin proposes to legislate or act in the fields listed in para. 3 above, or to amend or replace the Berlin Constitution of 1950, notification of such intention shall be made to the Allied Kommandatura which may raise objections thereto within a limited period.
• 6. All Occupational legislation will remain in force until repealed or amended by the Allied Kommandatura or the Sector Commandant concerned. Such legislation will, however, be repealed, amended or deprived of effect on the request of the Berlin Authorities if the Allied Kommandatura or the Sector Commandant concerned is satisfied that:
  • (a) it is no longer appropriate under the terms of this_________, or
  • (b) adequate Berlin legislation is promulgated.
• 7. In order to enable them to fulfill their obligations, the Allied Authorities shall have the right to obtain such information and statistics as they may require.

Annex “B”

confidential

Draft Declaration of Rights

The Allied Kommandatura has resolved that in its relationships with the Berlin Authorities it will be guided by its desire that Berlin shall enjoy as complete self-government as its situation permits. The following Declaration is therefore hereby promulgated, superseding the Statement of Principles of 14 May 1949, and The First Instrument of Revision thereof dated 7 March 1951.

• 1. Berlin shall have full authority and responsibility under its Constitution of 1950 as approved by the Allied Kommandatura on 29 August 1950, subject only to the provisions hereinafter set out.
• 2. In view of the special circumstances governing Berlin’s present situation, the Allied Authorities continue to reserve the power, if they deem it necessary, to take such measures as may be required to fulfill their international obligations, to insure public order, and to maintain the status and security of Berlin, and to take action in all matters relating to the maintenance of Berlin’s trade and communications. The Allied Authorities will also continue to take such measures as may be required for the protection, prestige and security of the Allied Forces, their dependents, employees and representatives, their immunities, the satisfaction of occupation costs and their other requirements.
• 3. The Berlin Authorities shall notify the Allied Kommandatura of any intent to amend or replace the Constitution of 1950 or to act or legislate in the fields listed below. The Allied Kommandatura may, within a limited period, raise objections thereto. It may also itself act or legislate in these fields as and when it deems necessary.
  • (a) Disarmament and demilitarization, including related fields of scientific research, prohibitions and restrictions on industry and civil aviation;
  • (b) Relations with authorities abroad. The Allied Kommandatura will exercise its rights in this field so as to permit the Berlin Authorities to assure the representation of Berlin interests in this field by suitable arrangements;
  • (c) Authority over the Berlin police. The Allied Kommandatura will act in this field only to the extent necessary to insure the security of Berlin;
  • (d) Care and treatment in German prisons of persons charged before or sentenced by the courts or tribunals of the Occupying Powers or Occupation Authorities; the carrying out of sentences imposed on them and other questions of amnesty, pardon or release in relation to them.
• 4. The Allied Kommandatura has taken cognizance of the Declaration of _________^‡ by the Berlin Government. It is the intention of the Allied Kommandatura to refrain from intervention in the fields covered by this Declaration so long as its provisions are implemented as stated therein.
• 5. Berlin legislation which conflicts with Allied legislation, with the provisions of this Declaration, or with other measures of the Occupation Authorities, may be repealed or annulled by the Allied Kommandatura.
• 6. All Occupation legislation will remain in force until repealed or amended by the Allied Kommandatura or the Sector Commandant concerned. Such legislation will, however, be repealed, amended or deprived of effect on the request of the Berlin authorities if the Allied Kommandatura or the Sector Commandant concerned is satisfied that:
  • (a) it is no longer appropriate under the terms of this Declaration, or
  • (b) adequate Berlin legislation is promulgated.
• 7. In order to enable it to fulfill its obligations under this Declaration, the Allied Kommandatura shall have the right to obtain such information and statistics as it may require.

1. For the text of the Foreign Ministers instructions on Berlin, see editorial note, p. 1944.
2. Not printed, but see footnote 2, supra.
3. Ante, p. 1900.
4. Brackets appear in the source text.
5. It may be possible, in the light of the final text of the contractual agreements, to revise this sub-paragraph and/or transfer it to para. 4. [Footnote in the source text.]
6. “Agreements entered into by their governments” is intended to refer to the contractual agreements. [Footnote in the source text.]
7. It is proposed that the Berlin Senat, perhaps with the approval of the House of Representatives, might issue a “Declaration of Intent” or some similar document indicating Berlin’s adherence to the policies and commitments set forth in the contractual agreements on restitution, reparations, decartelization, deconcentration, foreign interests in Berlin and claims against Berlin or its inhabitants; displaced persons, and the admission of refugees. This might be done, by setting forth the applicable policies contained in the pertinent contractual agreements, but without referring to the agreements themselves; or, preferably, by a simple brief statement of intent to adhere to the policies adopted by the Federal Government in such-and-such agreements. (It is uncertain whether the contractual agreement covering restitution will be adequate to cover Allied requirements in Berlin due to the fact that the restitution program in the Federal Republic is much further advanced than that in Berlin.) [Footnote in the source text.]