Foreign Relations of the United States, 1969–1976, Volume XL, Germany and Berlin, 1969–1972

203. Message From the Ambassador to Germany (Rush) to the President’s Assistant for National Security Affairs (Kissinger)¹

Bonn, March 21, 1971.

I have read with much interest your message,² which I did not receive until late yesterday, as I was away on speaking engagements in Hamburg and Hannover and attending General Polk’s farewell in Heidelberg. In the circumstances, I have not had the time to make the following comment more succinct, but I hope it is clear.

As you know, the Western Allies tabled a draft agreement with the Soviets on February 5 and have been discussing it with them since. Whether it is tactically advantageous for us in the circumstances for the Soviets to table a written draft of their own which diverges widely from our text is questionable. But irrespective of what we think, I have come to believe from my discussion with the Soviets and from remarks they have recently made to others that they intend to table a draft in any event.

Without regard to this, I consider it a positive action on the part of the Soviets that they should have submitted a draft to you prior to bringing it up at the Four Power talks. This action strengthens my own feeling that the Soviets desire to reach a Berlin agreement in order to obtain ratification of the German-Soviet treaty and to move towards a Conference on European Security.

You will find a number of suggestions for possible modification of the Western position among my comments on the Soviet draft. I have indicated my estimate of their degree of acceptability to the Germans. I believe there is a reasonable prospect that these suggestions would be acceptable to the British and French in the context of an overall agreement.

I will, of course, be careful to follow Dobrynin’s request not to mention to Abrasimov anything about the draft, or for that matter, about our contact with Dobrynin on the Berlin subject.

Please let me know if you have suggestions where I could be helpful.

Warm regards.

General Comment

1. The paper follows closely the oral statements of the Soviet counselor in the two most recent sessions in Berlin,³ so that its content if advanced in writing would not come as a surprise for any of the participants in the negotiations.

2. The fact that the Soviets desire to advance a written text is of itself probably an indication of their interest in the negotiations.

3. The layout and form of the draft and the range of subject matter included corresponds to the concepts we have introduced in the negotiations. No completely new wild cards have been introduced. This is also some indication of seriousness. A comment by you to the Soviets along the above lines might indicate a somewhat positive response from us while reserving your position on issues of substance.

4. The following comment on substance is based on my viewpoint that our serious interests in these negotiations is to reach agreement on arrangements which have some practical if limited possibility of decreasing tensions over Berlin, that we must protect our own interests in Berlin against the deterioration of our position there vis-à-vis the Soviets and GDR which is one direct consequence of Brandt’s Eastern policy with its augmentation of the status of the GDR, and that the resulting agreement must be acceptable enough to Federal German opinion not to become an object of constant controversy in US-German relations.

5. On the basis of these standards, the content of the present draft is in my opinion unsatisfactory on the following main grounds:

A. The content of Four Power commitment or at least of Soviet commitment is too low. This concerns in particular the access question and inner-Berlin improvements, where the only effective commitment extended comes from the East Germans, not the Soviets. It is essential to protect our position and interests in the future that there be a clear Soviet statement in the agreement that the Four Power status continues valid and that the Soviet Union is the guarantor of access commitments. This is a high political price for the Soviets to pay in the light of their claims of GDR sovereignty and their own relationship with the GDR. But we believe they have adequate treaty reserved rights and political power to get away with it. Moreover, it is an equitable requirement in the light of the benefits they are obtaining in the Moscow treaty and related issues.

B. The practical provisions contained in the draft on improvement of access are inadequate either to insulate Berlin traffic sufficiently from political interference under “normal” conditions or to make it apparent to Western public opinion that the agreement has in fact resulted in real improvements. In addition to a clear Soviet commitment on unhindered access, it seems essential that the agreement contain provision for sealed freight conveyances and through passenger trains and buses without controls. According to the draft, the Soviets appear to be moving on the first point, and this is a vital point.

C. The paper as drafted contains too much language with the connotation that West Berlin is a separate international entity. To the extent that this appears to be the case, it undermines the basis for our own position in Berlin: anything which indicates US acceptance that East Berlin has definitely moved under East German control also means US acceptance that the original basis of our presence in Berlin no longer exists. It is also unacceptable for the Germans.

D. The measures proposed in the paper for the definition of the relationship between the Federal Republic and the Western sectors and for cutback of the Federal German presence in Berlin are so severe as to result of themselves in the rejection of the whole agreement by the Federal Republic.

6. Therefore, I would think that if adopted in its present form, the draft would have the possible practical effect of reducing some tensions in Berlin but would not protect the US position vis-à-vis the East Germans, would weaken the legal basis of our position, and would not be acceptable to German political opinion.

Summary of Comment on Individual Sections

My analysis of the specific sections which follow leads me to the general conclusion with regard to the negotiations as such that, if the Soviets were prepared to move toward our position on a limited number of very important points, we might be able to meet them with some less important concessions of our own. Thus the Soviets might accept: (A) the use of the word “Berlin” in the preamble, or part I of an agreement; (B) wording on access and on inner-Berlin improvements which contains an explicit Soviet commitment as distinguished from an East German commitment; (C) language which provides for sealed freight conveyances and through trains and buses without controls; and (D) wording on the Federal German presence in the Western sectors which makes clear Soviet acceptance of our authority in our sectors and of the special ties between the FRG and the Western sectors. For our part, we could give the Soviets a little more on Federal presence and on Soviet interests in the Western sectors.

To bring the Soviets to make these compromises would be very difficult. But with sufficient patience and firmness it might be achievable. In my view, to accept less or to give more would probably not result in an agreement which meets that stated criteria of maintaining our position in Berlin in the face of increased East German status, entails sufficient real improvements to have some prospect of diminishing East-West difficulties over Berlin, and is politically acceptable to the Federal Germans.

Preamble and Part I

A. The main purpose of this section as Western Allies have conceived it is to serve as a framework for a statement that the negotiation was carried out on the basis of existing Four Power rights and responsibilities which remain intact.

B. In this sense, large scale rewording of the proposed Soviet language would be necessary, particularly to excise the reference to “others” and the prohibition against interference in the affairs of others or violations of public security. This is the first of a series of grab-bag, blanket formulations which appear in the Soviet text which are far more significant than they first appear as they could provide a basis, apparently quadripartitely agreed, either for Soviet attempts to interfere in the Western sectors or to annul the agreement.

C. The draft of this section deliberately omits mention of the word “Berlin.” However, it appears most desirable that the agreement contain the word “Berlin” in this section in order that the agreement as a whole will make sense to the public—it would not be considered much of an agreement if it was observed that the contracting parties could not even agree on a name for the area they are negotiating on. The use of the word is also necessary in order to make convincing our claim that the legal status of Berlin has not changed and in order to work against the impression evident in the entire remaining parts that we are concluding a new statute for West Berlin. This last is in effect what is being done in practice, but I think it is essential for the maintenance of our position over the long run that this not appear to be the case in such obtrusive form as to undermine our rights which are based on Berlin as a whole.

D. This issue of the nomenclature for Berlin appears petty but is deadly serious. The Soviet effort in the negotiations is to enshrine in the text of the agreement their official view that there is only one Berlin, the Berlin which is the capital of East Germany, while there also exists a second autonomous city called West Berlin which is governed by the three powers. Acceptance by the three Western powers of this type of designation in the context of an agreement on Berlin would mean that the three powers recognize that the Eastern sector of Berlin was the capital of East Germany, and therefore that they recognize that the original basis for their presence in Berlin no longer existed.

E. Inclusion in this section of a neutral phrase like “Berlin area” to identify the subject matter and indirectly substantiate our claim that the original Four Power status remains untouched is highly desirable and not an excessive demand on our part.

Part II

1. For reasons just stated, nomenclature throughout the remainder of the agreement must I think be “Western sectors of Berlin,” not “West Berlin,” as the Soviets wish to have it.

2. The wording in point 1 of the Soviet draft in effect establishes a separate city of West Berlin and is unacceptable. It is I think essential that a commitment on this subject come from the three powers, that it not leave the implication of Soviet participation as the present wording does, and that it be so formulated as to indicate Soviet acceptance of continued Allied supreme authority in the Western sectors. We should not go beyond committing ourselves to the Soviets that we will maintain in effect limitations we now impose on the FRG-Western sectors relationship. This provision should also contain a positive statement on FRG-Berlin ties. These requirements would seem to me necessary not only for Federal German domestic political purposes, but to protect us in the future against Soviet efforts to claim that Allies no longer have status in the Western sectors or to annul the agreement on account of some FRG activities of which they do not approve.

3. Point 2 on access is in my opinion wholly inadequate and a regression behind what the Soviets have said in the negotiations; it does not represent a commitment of any kind by anyone. This point must I think represent a solid and direct undertaking of the Four Powers or at least of the Soviet Union that surface access to Berlin for civilian persons and goods will be unhindered. This is a key point in the negotiations and the Soviets should be expected to pay this much.

4. Point 3 on inner-Berlin improvements should be drafted as a Four Power or at least a Soviet commitment. The content, after amendment, is passable if the arrangements mentioned are adequate and specified in the annex. This issue is a secondary one in the negotiations.

5. Point 4 on the representation abroad of the Western sectors should not appear in the suggested form, which implies that it is a common Four Power responsibility with Soviet participation. It is a responsibility of the three Western powers, not the USSR, to determine how the Western sectors should be represented abroad.

6. Point 5 on Soviet interests should not appear in this agreement because it has the effect of building up the concept of a separate West Berlin. It is probably necessary to make some concessions in this area, but they should be handled by an exchange of letters between the Western allies and the Soviets. In fact, the Soviets have from time to time indicated that this procedure would be acceptable.

Part III

We have conceived this section as connective tissue. Preferably, it should specify that the annexes constitute an integral part of the agreement, that arrangements set forth in them will be respected, and that the agreement will enter into force when the four governments have confirmed that implementing details worked out by the German authorities are ready to be applied. These objectives would require some expansion of the Soviet wording, but this is not a requirement.

Annex I—FRG-Berlin Relationship

1. The weakness of this entire section as drafted is its nearly totally negative approch to the question of Federal German-Berlin ties. To protect our own interests against future Soviet efforts to interfere in the management of the Western sectors or to claim bad faith on our part, as well as to make the agreement acceptable to the Germans, this section must I think contain elements which are from the Western point of view positive as well as negative ones. This issue has been one of the most important points of discussion in the Federal Republic and the German Government could not in my opinion accept an agreement which did not contain a positive statement on ties. To the extent that this is done in Part II, it need not be repeated here in the annex.

2. In my view, paragraph 1 goes much too far in the negative direction, particularly in its catchall phrases about actions which would mean extension of Federal authority to West Berlin, interference in its affairs, or use of the territory of West Berlin against the interests of other states. These formulas would provide a basis for Soviet intervention in the affairs of the Western sectors or for an excuse for annulling the agreement. We could in the final analysis accept some limitation on Bundestag committees and factions but in a less extreme form than that indicated. As an extreme concession, we might include some form of prohibition against Federal agencies carrying out activities which mean extension of Federal German governmental authority to the Western sectors. Such a formula would cause great difficulty for the Germans, and would be justifiable only if we could get other crucial points indicated above.

3. Paragraph 2. Wording of this paragraph should I believe be far more positive. It is doubtful whether we should agree to any limitation on FRG meetings of political parties. As an extreme concession, we might agree that such meetings would take place only on invitation of a local Berlin branch of Federal German parties and associations. Such a provision, although highly unpalatable for Brandt, would at least provide adequate coverage in the agreement against Soviet and East German criticisms when such meetings took place. If advanced it should be balanced by positive wording on participation by West Berliners in FRG organizations and associations, including political parties, and in the international exchanges arranged by them, as well as on meetings of international organizations in Berlin.

4. Paragraph 3 on the Federal German liaison office. The concept has been accepted by the Western Allies. The present Soviet formulation, which implies the status of a diplomatic mission to a foreign country, is not acceptable.

5. Paragraph 4. We have already indicated to the Soviets that we might be willing to say that Federal German military activities will not be permitted in Berlin. In the light of the extensive remilitarization of the Eastern sector of Berlin, however, it would be humiliating for the Western allies to enter into a commitment vis-à-vis the Soviets to maintain the demilitarization of the Western sectors. Moreover, demilitarization is one of those catchall concepts which could serve as a basis for Soviet interference in the affairs of the Western sectors or for Soviet or East German action to annul the agreement.

6. The same is even more true for paragraph 5. We have indicated that we are willing to take actions on our own outside the framework of the agreement to control NPD activities in the Western sectors, but not to undertake a blanket commitment to prevent political activities the Soviets or GDR do not like. In fact, Abrasimov has stated to me from time to time that a separate unilateral statement is all that is needed.

Annex II—Access

1. The wording of this section is inadequate in that it does not imply any Soviet commitment along with that of the GDR.

2. The references to common international norms and practice in paragraphs 1, 3 and 4 is unacceptable because, as we have told the Soviets, it is an indirect reference to claimed GDR sovereignty over these routes and would provide a legal basis for East German interference with access.

3. We have told the Soviets that an agreement covering access must contain a provision for through trains and buses without East German controls. This is important as symbolizing unhindered access and as an alternative for air travel and would appear to all as a real improvement. It must also contain a point on sealed conveyances for freight without any East German controls. Controls for individuals using their own cars should be radically simplified, but we are not asking for their total relinquishment. The Soviet wording of point 4 on sealing marks an advance but is not yet enough. It will be hard to get these two main points, but it is believed possible.

Annex III—Inner Berlin

This would seem to be generally acceptable if rephrased to represent a Soviet commitment and to cut down on the East German aspects.

Annex IV—Representation of Berlin Abroad

1. In my view, the concepts advanced here represent a start in the right direction but there is a long way to go. We could commit ourselves to the Soviets to maintain the present system, stating that the representation of Berlin abroad remains a reserved right of the three allies, but that we had authorized the Federal Republic to carry out these functions and that we would maintain the present practice of reviewing each treaty concluded by the FRG before applying to Berlin. I feel this would be an extreme concession on our part. We could not as a practical matter ourselves represent the Western sectors in certain fields and the FRG in others. There would be continual argument about whether the Federal Republic was observing the ground rules. We could as an ultimate concession inform the Soviet Union orally that the Western powers would be willing to represent the interests of West Berlin in matters in the UN Security Council. Other than this, I think there would have to be a clear understanding that the FRG represents Berlin in all international organizations including the General Assembly of the UN.

2. The wording of this section would, I believe, have to be radically revised, among other things to eliminate any impression that foreign representation of Berlin was a Four Power matter where the Soviets have a voice rather than an exclusive Three Power responsibility with the Soviets accepting that current Western practice is compatible with the status of Berlin through the act of agreeing to apply it in the USSR.

Annex V—Soviet Interests

1. The subject matter should, as we have indicated to the Soviets, be handled outside the framework of the present agreement as it concerns a relationship among the Four Powers themselves, rather than one which involves the Federal Republic, East Germany or the Berlin Senat. This treatment is our preference, but it does not appear a necessity.

2. A Soviet consulate general in the Western sectors appears unacceptable. Its mere existence would emphasize the existence of a separate city of West Berlin and thus undermine the Four-Power concept. The principles of nondiscrimination and most-favored-nation treatment for Soviet interests in West Berlin are vague and broad and it is not clear what commitments we would be undertaking.

3. As I have mentioned in recent messages, we could in my opinion, safely permit the opening of a number of specified commercial offices of Soviet foreign trade associations, Aeroflot and even the grouping of these commercial offices on one premises. We could agree to a little more latitude for such commercial offices in such practical matters as renting more space, etc. We could permit Soviet citizens permanently employed in these firms to reside in the Western sectors within reasonable limits. In the final analysis, we could give them a consulate if they gave us all of the other things we wanted in the agreement, but we should draw the line at a consulate general as having too much symbolism of a separate West Berlin. Some evaluations by Washington agencies of the significance of the concessions listed above have, I think, been exaggerated.

Final Act

1. The Soviet wording does not sufficiently provide for a Soviet commitment to maintain and carry out the results of the inner-German negotiations or make clear that those negotiations took place pursuant to the quadripartite agreement.

2. It is not sure that the consultation provision as set forth would be to our advantage and it should be treated cautiously.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Kissinger Office Files, Box 59, Country Files, Europe, Ambassador Rush, Berlin, Vol. 1 [2 of 2]. Top Secret. The message was sent through the special Navy channel in Frankfurt; a handwritten note indicates that it was received in Washington at 0430Z (11:30 p.m., March 21).
2. See footnote 1, Document 201.
3. The two most recent advisers’ meetings were held on March 6 and March 17. The discussion on the former date is reported in telegrams 446, 447, and 448 from Berlin, March 6, 7, and 7, respectively; the latter in telegrams 513, 514, and 517 from Berlin, March 18. (All in National Archives, RG 59, Central Files 1970–73, POL 38–6)