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

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

Bonn, August 23, 1971.

1. As you have doubtless now heard, your message,² through some deficiencies of the Army communications center³ in Frankfurt, did not reach me until this morning. Fortunately, the material you want was already almost completed, and I am attaching it. I hope it is what you want and serves your purpose.

2. From all indications over here, the State Department now seems to have recovered from panic and to be getting in step.⁴ As you know, I am leaving Tuesday⁵ for a meeting with the Secretary Wednesday, and it now looks as though instead of being in the lion’s den I will be with a peaceful group of lambs.

3. Many thanks again to the President and you, and warm regards.

I have today, August 23, given oral concurrence to the text of a Berlin agreement which I believe achieves our basic negotiating goals.⁶ It provides for significantly improved access arrangements backed by the USSR; improved access by Berliners to East Berlin and East Germany; Soviet acceptance of representation aboard of the Western sectors by the FRG including FRG consular protection for Berliners traveling in the USSR and use of FRG passports; and acceptance by the USSR that the ties between Berlin and the FRG will be maintained and developed. Negative aspects of this text include acceptance of a Soviet Consulate General in West Berlin; and a somewhat enhanced status for the GDR. The status of Berlin is not altered. The agreement has the fullest support of Chancellor Brandt, Foreign Minister Scheel, and those German officials familiar with its development.

I am transmitting by cable to the Secretary of State (Berlin 1708)⁷ the text of the quadripartite Berlin agreement and related documents as agreed today ad referendum to governments by the four Ambassadors. In accordance with the State Department’s instructions,⁸ Ambassadorial concurrence was oral only. The text was not initialled or signed.

I believe that the prospective agreement conforms to the provisions of NSDM 106⁹ and in general is very close to the Western draft of February 5, 1971,¹⁰ which it will be recollected, was advanced as a negotiating draft only, with deliberate inclusion of considerable negotiating “fat” designed to be sweated off in the negotiating process. But despite the Soviet draft of March 26¹¹ whose negative espects are almost wholly discarded in the present draft, the “fat” of the February 5 Allied paper has largely been retained and even built on. In that sense, the agreement recommended today is a fat agreement.

The August 23 text and the February 5 Western draft are identical in structure and concept. The following is a summary comparison, section by section, of the two papers.

1. Preamble

The preamble is almost identical in the two documents. We could not get Soviet agreement to include in it the word “Berlin” which, in their political vocabulary, means only “Berlin, the capital of the GDR,” i.e., the Eastern sector. We tried our best on this point but acceptance of the word “Berlin” is too crass a conflict with Soviet political objectives. We of course refused to use Soviet terminology for the agreement. They wanted to use the term West Berlin throughout. The result is a compromise, but one in our favor. We have a reference to Berlin at the end of the first paragraph, and the entire construction of the agreement (the preamble, and part I of general nature refer to the “relevant area,” while part II refers specifically to the “Western sectors of Berlin”) leaves the whole burden of constructive evidence in our favor that the preamble and part I of the agreement do refer to Berlin as a whole.

We did accept in the preamble the phrase “the existing situation,” a Soviet phrase which Abrasimov has been pushing since the beginning of the negotiations. We did so because we considered that we would get more advantage from the use of this phrase than the Soviets. In their terminology, the phrase refers to the division of Berlin, the status of the GDR, and so on. In our terminology, it refers to Berlin as a whole, and our legal position on Germany as a whole, and so on, which, it is stated in the agreement, should not be changed unilaterally. Given the fact that political power in the area is actually exercised by the Soviet Union and the GDR and that they would be the ones carrying out unilateral change, the use of the phrase here gives us more advantage than them in terms of binding and commiting the signatories of the agreement.

2. Part I

The first three paragraphs of part I are nearly identical with those of our February 5 draft. Paragraph 4 is new. Its content provides that the overall situation in the area, as provided in the original Four Power agreements, the present agreement, and the inner-German agreements to be concluded, shall not be changed unilaterally. I consider this advantageous in the sense of the last point I made above with regard to the preamble.

3. Part II

The title of this section and that of part I are those used in the February 5 draft and are just as we wished them, in order to make the distinction that the first part refers to Berlin as a whole and the second part to the Western sectors only.

I consider part II, paragraph A of the present agreement to be superior to the equivalent paragraph of the February 5 draft (paragraph A and subparagraphs 1–5). In the present paper, we obtained all of the substance contained in paragraph A of the February 5 draft, but got it in a form which embodies a clear Soviet commitment. It therefore comes closer to our agreed negotiating goal than the neutral wording of the February 5 draft which left it to imagination whether there was a commitment and who was undertaking it. The present text of paragraph A contains the phrase “through the territory of the German Democratic Republic.” I consider this an advantage because it shows that, despite Soviet legal theory to the contrary, the Soviet Union is continuing to exercise what we consider to be a Four Power responsibility over the GDR.

4. Paragraph B of part II of the August 23 agreement is superior to the formulation of the February 5 draft. It states in a Four Power agreement whose language was agreed with the Soviet Union, “that the ties between the Western sectors of Berlin and the Federal Republic of Germany will be maintained and developed.” That we could obtain Soviet agreement to such a formulation at all, and also to its inclusion in part II, or the Four Power part of the Berlin agreement, was considered so unrealistic and far reaching that it was not even proposed in the February 5 draft.

Subparagraph C

This paragraph on inner-Berlin in matters (paragraph B in the February 5 paper) has the same substantive content as that in the February 5 draft. Like paragraph A, it is couched in the form of a commitment from the Soviet Union and is therefore better than the February 5 formulation in that regard.

Part III—Final Provisions

This is nearly identical in substance with the February 5 draft.

Final Quadripartite Protocol

Although the wording of this section in the August 23 draft text and that of the February 5 draft is not identical, I consider their substance to be the same. The August 23 draft does not contain a statement that the Four Powers “will see to it” that the inner-German agreements will be applied. But it does definitely contain the “package concept” and, in my opinion, the consultation clause of the August 23 draft gives us what we want as regards bringing Four Power pressure, especially Soviet pressure, to bear on the GDR to fulfill its commitments on access and inner-Berlin matters.

Annexes

Annex I Access

This objective, that of obliging the GDR to maintain its commitments in the access field, is also carried out through the inclusion of annex I of the August 23 text of the phrase “after consultation and agreement with the Government of the German Democratic Republic.” This is a strengthening of the language contained in the introductory paragraph of the February 5 draft and an improvement over it.

Paragraph 1 of Annex I of the August 23 draft has no counterpart in the February 5 paper. It has the constructive effect of committing the GDR to observe the same general principles in treatment of access as the Soviets undertake in paragraph A of part II. It also mentions the words “international practice,” to which there has been some objection in Washington. The formulation used in this regard, however, permits us to draw on the best of international practice as a supplement of what is specifically agreed in the present agreement as regards access. It is a recognized principle of law, to which the Soviets have specifically subscribed in the present negotiations, that specific provisions of any agreement have a primacy over reference to general principles of law, so that there should be no confusion whatever about the fact that “international practice” is only a supplementary source of procedures for handling access traffic rather than conditioning the remainder of the annex.

Paragraph 2(A) of Annex I of the August 23 text is nearly identical in substance with paragraph 1 of the February paper except that we did concede “accompanying documents” above and beyond the February 5 text. Just what these documents are will have to be defined by Bahr in the inner-German negotiations. I have no concern on this point, as on other details regarding access still to be worked out in the inner-German negotiations. Soviet behavior in the last days of the negotiation, including the presence of Foreign Minister Gromyko in East Berlin to backstop Abrasimov, justifies the conclusion that the Soviets are highly interested in conclusion of the Berlin agreement in order to move rapidly on the ratification of the German-Soviet treaty in the Bundestag. I believe these pressures will operate in our behalf during the inner-German talks.

Paragraph 2(B) of the August 23rd paper is a bonus. There is no provision whatever in the February 5 draft for coverage of unsealed vehicles, which are by far the largest number of goods conveyances used in Berlin access traffic. The present paragraph will give them preferred treatment.

Paragraph 2(C) on through trains and busses is 90 percent of what we wanted to get in the February 5 draft. It does provide for control of identity, including in practice acceptance of visas, which we wished to avoid. But there are no other limitations and what we have here could, in practice, come fairly close to being a ground equivalent of the air corridors.

Paragraph 2(F) of the August 23 paper also contains 90 percent of the content of paragraph 3 of the February 5 paper. But it has two highly important features which the February 5 paper completely lacked. Its provisions operating against arbitrary search are extended to vehicles as well as travellers and their baggage. Moreover, it contains protection both against arbitrary arrest and against arbitrary exclusion from use of the access routes. GDR arrests and exclusions of FRG citizens travelling on the access routes have been main areas of friction in the past. With these two points, we have come close to completely free access to Berlin, at least in contractual terms.

Paragraph 2(E) of the August 23 paper is equivalent to paragraphs 4 and 5 of the February 5 draft and is slightly less favorable. The content of these paragraphs is of technical nature and best suited for negotiation between the FRG and the GDR.

Annex II of the August 23 Paper

This is comparable to Annex III of the February 5 paper.

Paragraph 1 of the present annex again has the strength that it puts maintenance and development of the ties between the Western sectors as a positive formulation ahead of any limitation imposed. This is a negotiating achievement, given the wholly negative Soviet view on FRG-Berlin ties, which considerably exceeds the comparable formulation contained in paragraph 1 of Annex III of the February 5 paper. Moreover, it appears not only in the Annex but in part II itself, giving it added status. As in II B, the paragraph continues to state that “these sectors continue not to be a constituent part of the Federal Republic of Germany and not to be governed by it.” The phrase “not to be governed by it” was also in the February 5 draft. The phrase “a constituent part of the Federal Republic of Germany” has been used in official Allied correspondence to the Federal Republic and cannot be regarded as a new term. This part of the description of the overall relationship between the FRG and the Western sectors of Berlin, which, as stated, appears also in part II A, marks a definite advance over the formulations used in the February 5 draft, in that it uses the phrase “continues to” in describing this aspect of the relationship. This language makes unmistakable that there is no change in the previous relationship as approved by the three powers, thus fulfilling a major objective of the Berlin negotiations. The second sentence of paragraph 1 of the August 23 text is equivalent in significance to the comparable phrase contained in the February 5 draft. Paragraph 2, Annex II, of the August 23 paper mentions more “state bodies” of the FRG as limited in their actions than the equivalent paragraph 3 of the February 5 paper. In compensation, the delimitation contained in this paragraph on “constitutional or official acts which contradict the provisions of paragraph 1,” is greatly superior to the February 5 draft because in my view it permits Federal officials to act while in the Western sectors to govern the Federal Republic of Germany itself. Such actions would have been wholly excluded by the formulation of the February 5 draft.

The Allied letter of interpretation to Chancellor Brandt, which will be acknowledged by Abrasimov in a way which makes clear that the Soviets had knowledge of it and raised no objection, defines these constitutional and official acts as “acts in exercise of direct state authority over the Western sectors of Berlin.” This is, in my view, a limitation which should permit Federal German agencies located in the Western sectors to continue to take actions with effect on the local Berlin authorities.

The definition of “state bodies” in paragraph (E) of the interpretative letter to the Chancellor is explicit evidence, in my opinion, and that of my colleagues, of what we agreed, that branch offices of Federal Ministries shall not be removed from Berlin. We did not believe it possible in formulating the February 5 draft to gain Soviet acceptance for such a statement in writing.

Paragraph (B) of the Allied letter of interpretation to Brandt permits committee and Fraktionen meetings to be held in the Western sectors. This is a highly important point for Brandt from the domestic political viewpoint. It was not contained in the February 5 draft.

The content of Annex IV of the August 23 paper on foreign representation corresponds to paragraphs 5 and 6 of Annex I of the February 5 document, but is far wider in scope and more explicit. This should eradicate prior sources of difficulty in this regard. We got Soviet agreement to accept use of FRG passports by West Berliners traveling to the USSR, something that every expert familiar with this subject considered out of the question.

Paragraph 2(D) of Annex IV corresponds to paragraph 6 of the February 5 draft. Our success in obtaining this paragraph is unexpected and should end a long series of frictions. We did not obtain agreement in August 23 document to the statement that “permanent residents of the Western sectors may participate in Federal German organizations and associations” as a general statement, out of the context of the representation abroad. However, we do have a clear understanding with the Soviets that those things in former practice which are not specifically prohibited will continue to be permitted. This applies to the present case.

Paragraph 3 of Annex IV of the August 23 text states that the three governments will authorize the establishment of a Soviet Consulate General in the Western sectors of Berlin. This item was of course not contained in the February 5 paper. It and the Soviet commercial offices authorized in the agreed minute on Soviet interests are very carefully circumscribed and controlled, as the wording makes clear. My own view and that of Ambassadors Jackling and Sauvagnargues, as well as of Chancellor Brandt, is that the significance of this concession on our part has been exaggerated in the Federal Republic for political reasons. In view of the advantages, described above, which the August 23 draft contains in comparison with that of February 5, I consider it fully justified to have agreed to the Consulate General and the commercial interests. In fact, I believe that what we received in return has far greater importance than what we have in this form.

Other more general comment on the present agreement is contained in my August 19 cable, Bonn’s 10252.¹²

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Kissinger Office Files, Box 59, Country Files, Europe, Ambassador Rush, Berlin, Vol. 2. Top Secret; Sensitive; Exclusively Eyes Only. The message was sent through the special Navy channel in Frankfurt. No time of transmission is on the message. A handwritten note indicates that it was received in Washington at 0330Z on August 24 and then sent to San Clemente.
2. Kissinger sent the following special channel message to Rush on August 21: “I would be most grateful if you could provide for me through this channel your analysis of why you consider the current draft close to our maximum position and where the current Berlin draft constitutes advances over previous formulation. It would be especially helpful if you could present these advances in the context of the U.S. February 5 draft and known positions of the other powers. I recognize the burden that the preparation of this analysis entails at this busy time, but I would be most grateful if you could furnish your analysis as quickly as possible—hopefully by Monday—so that I will be thoroughly prepared for the bureaucratic problems which we must face next week. Best regards.” (Ibid.)
3. Reference should be to the Navy communications center in Frankfurt.
4. In a telephone conversation with Dobrynin earlier that afternoon, Kissinger reported that the “bureaucratic problem” had been solved. “It may be that I will appeal to you to change a word or two that will have no substantive significance,” he explained, “but probably that is not necessary.” After a brief exchange on plans for Rush to return to Washington, Kissinger further remarked: “We have reduced objections to a point where it’s bureaucratic. I hope your government is better disciplined than ours. Last week a big problem but substantially settled. W[hite]H[ouse] is not spectacular but persistent.” (National Archives, Nixon Presidential Materials, NSC Files, Kissinger Office Files, Country Files, Europe, Box 57, Berlin and European Security, Vol. II [2 of 2])
5. August 24.
6. The remainder of this message is classified secret. The Mission reported the highlights of the August 23 session the same day in telegram 1714 and the details the following day in telegrams 1715, 1716, and 1717. (All in National Archives, RG 59, Central Files 1970–73, POL 28 GER B)
7. Dated August 23. (Ibid.)
8. Document 312.
9. Document 225.
10. See Document 173.
11. See Document 201.
12. Document 303.