306. Telegram From the Department of State to the Embassy in Germany1

152955. For Ambassador Rush from the Secretary.

I have reviewed the text of the draft agreement as agreed by the four Ambassadors in your meeting of August 18. I have reservations about quite a number of aspects of the draft and am glad to learn that you would not give your own agreement to it or initial it in Monday’s ambassadorial session. You should inform your ambassadorial colleagues that this text cannot be regarded as having been agreed at the ambassadorial level and submitted to governments ad referendum. You should also take all appropriate steps to dispel any press or public speculation that an agreement text has been reached ad referendum.
In order that we may have a chance to review the situation and to have the benefit of your personal assessment, I am asking that you return for consultations on Wednesday August 25. You should inform your negotiating partners that we will need a period of about 3 weeks to review the negotiations and that they should make allowance for the likely possibility of further negotiating sessions when this review is completed.
Among particular subjects which I will wish to review with you are aspects of the agreement which appear to run counter to guidance contained in NSDM 1062 and the Presidential guidelines set out in State 146328.3
The agreement fails to refer specifically to Berlin and does not otherwise establish that the agreement is not limited to West Berlin.
The Preamble, contrary to presidential guidelines set out in State 146328, contains the phrase “Taking into account the existing situation,” thereby implying Western acknowledgment of the division of Berlin.
Also contrary to Presidential guidelines set out in State 146328, there is a reference in the annex to international practice, a term which dilutes the concept of unimpeded access.
There is a reference in the text to consular activities of the USSR in the Western sectors of Berlin and a paragraph in an annex authorizing the establishment of a Soviet Consulate General. In providing for deletion of the prohibition in NSDM 106 (paragraph 6 a (2)) with respect to an official Soviet representation in West Berlin, State 146328 provided that the general requirements defined in NSDM 106 were maintained. NSDM 106 provides that the Agreement should contain nothing on this issue.
The agreed minute on passports provides for issuance of a travel document to West Berliners under quadripartite authority. The special stamp foreseen would appear on passports of Berliners for journeys to “such countries as may require it.” This formulation could prejudice the US interpretation of quadripartite rights, as provided in NSDM 106.
I find that some of the formulations on FRG-Berlin ties offer room for interpretation to an extent that may be inconsistent with the provision in State 146328 that these formulations should be precisely worded so as to minimize the likelihood of future disputes. Among these issues are references to single committees, which the FRG may interpret more broadly than the strict sense of the text, and provisions pertaining to federal courts.
There are additional formulations in the text which also cause concern, including the term “sufficient reason,” a phrase which could be exploited by East German officials to make searches, detentions and exclusions of through travelers or inspection of contents of unsealed conveyances under this agreement. I would like to have the opportunity to review these and other points with you on Wednesday.
We plan to inform British, French, and Germans locally here Friday afternoon4 our time.
  1. Source: National Archives, RG 59, Central Files 1970–73, POL 28 GER B. Secret; Immediate; Nodis. Drafted by Skoug on August 19; cleared by Fessenden, Brower, Emmons and Irwin; and approved by Rogers. A copy was sent to the White House for Kissinger in San Clemente.
  2. Document 225.
  3. See Document 285 and footnote 1 thereto.
  4. August 20.