316. Briefing Memorandum From the Acting Assistant Secretary of State for European Affairs (Fessenden) and the Acting Legal Advisor (Brower) to Secretary of State Rogers1


The Western objective in the Berlin negotiations has been to obtain pragmatic improvements in the situation which would facilitate the life of the Berliners and lessen the likelihood of confrontation with the Soviets or the East Germans. The text agreed to by the Four Ambassadors for consideration by governments substantially accomplishes the pragmatic improvements we had in mind. Access should, as a result, be visibly facilitated, communication between West Berlin and the surrounding areas improved and Berlin’s representation in the USSR and Eastern Europe by the FRG on matters not affecting status and security assured. This is a significant accomplishment, going beyond what we thought possible when the negotiations began.

We intended to utilize two factors to obtain Soviet concessions:

(1) a reduction in the FRG’s political presence in West Berlin and (2) the possibility of a Conference on European Security. As negotiation progressed we added the prospect of ratification of the FRG’s Moscow treaty and an enhanced Soviet presence in the Western sectors. Thus the bargain has been broadened on both sides.

A basic principle underlying the Western approach to negotiations was that the status of Berlin as reflected in Four Power agreements should not be altered. The Soviets have shown the contrary objective of establishing that West Berlin and only West Berlin is the subject of [Page 893] Four Power negotiations and is a separate political entity where Four Power agreements on Berlin as a whole continue to be valid. It is in this area that the major problems arise in the text agreed to by the Ambassadors. These are discussed in the following paragraphs. The full text as agreed by the Ambassadors is at Tab A.2

The Status of Berlin

No individual sentence in the text as it now stands can be cited as altering the status of Berlin. However, despite references to the effect that Four Power rights and responsibilities remain unchanged and legal positions are not prejudiced, the following aspects of the text in combination could be interpreted as Allied acknowledgment of a separate Four Power status for West Berlin:

There is no mention in the text of Berlin as the subject of negotiations.
All of the operative provisions of the text have to do with the Western sectors or travel to and from them.
The text (the Preamble) includes the phrase “taking into account the existing situation in the relevant area,” which suggests acceptance of the division of the city.
The text (Part I, para 4) also refers to “the situation which has developed in the area, and as it is defined in this agreement as well as in other agreements,” thus implying that the present agreement does, in fact, define a new “situation” in the city.
The stipulation that this situation “shall not be changed unilaterally” indicates that the Allies may not have an entirely free hand in West Berlin.
The provision, in the agreement, for the establishment of a Soviet consulate general in West Berlin, without any increase in the Western presence in East Berlin, tends also to increase the impression that a separate status is being established for the Western sectors.
The provisions for limited representation of the Western sectors by the FRG in the Soviet Union and issuance of Federal passports to West Berlin residents for travel to the Soviet Union and other countries are cast in a form suggesting that the Soviets share with the Three Western Powers certain functions limited to the Western sectors.

It is evident that not all of these aspects of the draft agreement can be changed, nor do we consider this absolutely necessary. The extent to which one or more might be altered, however, could materially affect the overall implications of the text insofar as Berlin’s status is concerned.

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Soviet Commitment

The Soviet commitment to see to it that the GDR lives up to agreements reached with the Federal Republic and the Senat is weak. To the extent that it exists it derives from the wording of paragraph 4 of the final quadripartite protocol (page 16 of the text at Tab A). It could be materially strengthened by the addition of a few words as the Department suggested during the final stage of the negotiations.

Soviet Presence

An increased Soviet presence in West Berlin is part of the bargain and must be accepted as such. In accepting such a presence, however, we have considered it important to maintain Western freedom to deal with Soviet installations in West Berlin in accordance with Soviet behavior both in West and East Berlin. Thus if the Soviets should close East Berlin to Allied access we should be in a position to expel Soviet representatives in the Western sectors. For this reason, among others, it was decided that provision for an enhanced Soviet presence should not be included in the quadripartite agreement itself since we would thus be unable to change the nature of the Soviet presence without placing in question the continued validity of the agreement as a whole.

The Western Ambassadors were unable to persuade the Soviets to handle the question outside the agreement and this battle has presumably been lost. The agreed Minute on Soviet activities in the Western sectors (page 21 of the draft) contains wording, however, which could intensify the problem. The Minute states “this authorization will be extended indefinitely, subject to compliance with the provisions outlined herein.” The conditions outlined have to do only with the operations of the Soviet offices to be located in the Western sectors. If taken literally, this provision would prevent us from taking measures against the Soviet offices because of Soviet actions in East Berlin or unacceptable Soviet comportment in the Western sectors.

The Balance

At Tabs B and C3 you will find analyses of the concessions made by both sides in reaching the draft text and of the points on which the United States Government may be vulnerable to criticism because of omissions [Page 895] and commissions. In summary, the Soviets have made significant concessions—more, in concrete terms, than the Western side. If this were not the case, there could hardly be a satisfactory agreement, since the “pragmatic improvements” largely consist of revisions of arbitrary restrictions imposed unilaterally by the Soviets and East Germans in the past. There will be critics who claim that the agreement amounts to Western acceptance of a separate West Berlin, in which the Soviet Union will have increased influence, if not control. Questions will be asked as to why the Western side gained nothing in East Berlin.

On the whole, however, the pragmatic improvements resulting from the agreement should more than balance the effect of such criticism. Chancellor Brandt and Foreign Minister Scheel have both welcomed the agreement without reservations as a major achievement. Moreover, if a Berlin agreement opens the way for changes in central Europe, including general recognition of the GDR, the status of Berlin is likely to be affected. At that point, any ambiguities in the present Berlin agreement could lose their importance.


We should view the draft developed by the Four Ambassadors as an important achievement which essentially meets Western objectives in the Berlin negotiations. A few substantive changes could result in a sounder text which would be less vulnerable to criticism and less susceptible to varied interpretations in the future. There is, however, serious reason to doubt whether these changes can now be achieved. Both Chancellor Brandt and Foreign Minister Scheel believe that the text should be accepted as it now stands. The British Foreign Office has also approved it and it seems likely that the French will follow suit. Thus, in pursuing changes, we will have the double task of first persuading our Allies and then tackling the Soviets. There is also the danger that in reopening the text we would afford the Soviets an opportunity to withdraw some of the concessions which they have made.

In view of the great importance of the agreement, and the critical scrutiny to which it is bound to be subjected we believe that, on balance, it would be worthwhile to make a final effort to achieve a few changes which could materially improve the text. With this in mind, telegrams are at Tabs D and E4 providing appropriate instructions to the field. These telegrams can provide a focus for discussion with Ambassador Rush during your meeting on August 25. You will no doubt wish to take into account his views before reaching a decision on their despatch. Should we decide not to take the initiative in seeking [Page 896] changes, the telegrams could be redrafted as contingency guidance in the event the Soviets reopen the text.

White House clearance will be required if the telegrams are sent since, even if the changes we are suggesting are made, the resultant text would not comply with all of the requirements of NSDM 106 and NSDM 125.5 The same would be true if the decision is made to send a telegram authorizing signature of the text as it now stands.

  1. Source: National Archives, RG 59, EUR/CE Files: Lot 80 D 225, Aug 23, 1971, Memos to the Secretary. Secret. Drafted by Sutterlin on August 22.
  2. Attached but not printed.
  3. Both attached but not printed. The paper at Tab B presented a detailed tabulation of Soviet and Allied concessions in the draft agreement. The paper at Tab C argued that the agreement left the United States vulnerable to domestic criticism on several fronts, including the implied change of status for both West Berlin and East Germany and the lack of balance between Soviet presence in West Berlin and Allied presence in East Berlin. “The unhappiness of the CDU/CSU opposition in the Federal Republic with these provisions,” the paper concluded, “may be reflected in the US, particularly by American leaders who have been directly involved with Germany and Berlin in past years.”
  4. Attached but not printed. Neither telegram was sent.
  5. Documents 225 and 285.