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

71. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon¹

Washington, March 25, 1970.

SUBJECT

• Consequences of the Recognition of East Germany

There has been an increasing trend in West German policy moving toward recognition of the GDR. It was not too long ago that Bonn insisted on using terms such as “the Soviet occupied Zone” and the “so-called GDR” when referring to East Germany. Brandt has accelerated the rate of change dramatically. He now accepts the existence of two German states based on equal rights. He does assert, however, that these are states “within one German nation,” and that their relationship must be of a special character, not as between two foreign states. Brandt has not recognized that the GDR exists as a foreign state in international law—and he says he will not.

The East Germans have maintained a drumbeat of demands that Bonn extend recognition under international law and accept diplomatic relations between the two Germanies. In his letter to you of March 22,² Brandt noted that at his Erfurt meeting with GDR Premier Stoph, the East German side “persevered resolutely” in its interpretation of the recognition question. The Soviets, of course, lead the other Eastern European nations in pushing the FRG toward recognition of the GDR. Brandt’s negotiator in the FRG–USSR talks in Moscow reported to the Allied Ambassadors on March 24 that a main pressure from Gromyko was for the FRG to accept a definition of its relationship with East Germany not distinguishable from recognition.³ Brandt also feels pressure from within his SPD/FDP coalition to show some early success in his dealings with the East. This pressure will undoubtedly increase as the May 21 date for his second meeting with Stoph approaches—and as he nears the June election in Germany’s largest industrial state of North-Rhine Westphalia. He may feel compelled to move even closer toward recognition of the GDR.

The impact of this trend on Four Power rights and responsibilities for Berlin and Germany has a new relevance. The FRG has an interest in maintaining at least the symbol of Four Powers rights, since they provide a framework for him to develop the “special” relationship between the FRG and GDR—and it helps diffuse the pressures which would otherwise be directed at Bonn. The Soviets, though insisting on two separate sovereign Germanies, are nevertheless interested in holding on to Four Power rights (not responsibilities) for leverage. The Three Western Allies have their own varying degrees of interest in maintaining all-German rights. In this light, I thought you might be interested in a study prepared by the State Department on the legal consequences of GDR recognition (Tab B).⁴ Since the study is lengthy, I have attached a summary at Tab A which you may wish to read since the topic is of increasing importance.

Tab A

Paper Prepared by the National Security Council Staff

SUMMARY

General

Legally, recognition of a state normally implies competence as a personality in international law; recognition of a government signifies the regime is the accepted representative of that state. Special types of circumscribed recognition have been created for particular situations, as the recognizing state deems appropriate. While recognition is the expression of intent (and may be inferred), a state may make an express disclaimer of recognition so that actions which might otherwise be equivocal could not be construed as constituting recognition under international law.

FRG Recognition of the GDR

From the many contradictory statements of FRG and GDR spokesmen a concept has been developing that there can be “agreements binding in international law” without either party to the agreement recognizing the other as a state—this is a novel concept insofar as bilateral agreements are concerned. The concept could mean simply that no provision of the agreement violates international law, or that a breach of it would constitute a wrong under international law. The only plausible meaning which would clearly exclude “international recognition” would be if the FRG voluntarily undertook to treat contractual obligations vis-à-vis the GDR just as if they were international obligations, while claiming that it has dealt with an entity other than an international personality, or that the GDR is an international personality but of a limited character.

Effect on Four Power Rights

In strictly legal terms, there is nothing the FRG can do by agreement with the GDR which will abrogate the rights of the Three Powers with respect to the USSR or any part of Germany. As a practical matter, however, recognition of the GDR might leave us in the position of guardian for “Germany as a whole” at a time when all the parts of Germany (except West Berlin) had explicitly renounced the concept of a unitary Germany. FRG acceptance of GDR claims to Berlin would not necessarily follow from recognition, but we should require the FRG to explicitly reserve on this point in connection with any recognition. The FRG is bound under the 1954 Bonn Convention⁵ not to act with respect to Berlin, a peace treaty, or Germany as a whole without express approval of the Three Powers.

Effect of GDR Access to the EEC

To ensure that FRG acceptance of the Treaty of Rome⁶ (EEC) did not contribute to the division of Germany—in light of the EEC common external trade policy—a special Protocol was worked out in which the EEC countries agreed that the application of the Rome Treaty would require no modification of the internal (interzonal) German trade. Thus the FRG was free to regulate its trade with the GDR without EEC control, and GDR goods freely move through the FRG into other EEC states. The prime advantage to the GDR has been access to the FRG for its agricultural products. Obversely, the other EEC states are not pleased that their agricultural exports are thus denied a part of the FRG market. To counter this trade diversion aspect, the FRG has imposed price equalization on GDR imports equivalent to those prevailing in the FRG.

It is not clear that recognition of the GDR would automatically terminate the applicability of the Protocol by destroying the internal character of interzonal trade. Legally, it would constitute a fundamental change of circumstances which would justify the termination of the Protocol by any of the Parties. As a practical matter, recognition would certainly increase the pressure on the FRG from its EEC partners to apply the common external trade policy to the GDR on the same basis as to any other Eastern European country. In view of the East German interest in this special access to the EEC, the FRC could use—and undoubtedly is using—the possibility of the destruction of this privilege as a bargaining lever in the formation of any new FRG–GDR relationship.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 683, Country Files, Europe, Germany, Vol. IV. Secret. Sent for information. A notation on the memorandum indicates the President saw it on April 2. Sonnenfeldt originally raised the subject of recognition of the GDR on February 20 in a memorandum to Kissinger, forwarding the study on legal consequences prepared by the Department of State (see footnote 4 below). On March 16 Kissinger issued the following handwritten instruction: “Send memo to Pres with cover re trends of German policy making this important topic.” (Ibid.) According to another copy, Downey drafted the memorandum on March 25. (Library of Congress, Manuscript Division, Kissinger Papers, CL 289, Memoranda to the President, 1969–74, Mar.–Apr. 1970)
2. See Document 70.
3. See Documents 67 and 68.
4. Tab B is a memorandum from Eliot to Kissinger, February 2, enclosing a memorandum prepared by the Office of the Legal Adviser; attached but not printed. Another copy is in the National Archives, RG 59, Central Files 1970–73, POL GER E–GER W.
5. Reference is to the Convention on Relations Between the Three Powers and the Federal Republic of Germany, signed in Bonn on May 26, 1952, and amended by the Protocol on Termination of the Occupation Regime in Germany, signed in Paris on October 23, 1954. See Documents on Germany, 1944–1985, pp. 379–383, 424–438.
6. For text of the Treaty Establishing the European Economic Community, signed in Rome on March 25, 1957, see American Foreign Policy: Current Documents, 1957, pp. 426–518.