Foreign Relations of the United States, 1964–1968, Volume XV, Germany and Berlin

157. Telegram From the Embassy in Germany to the Department of State¹

Bonn, July 13, 1966, 1815Z.

549. Subj: Berlin clause. Refs: (A) Bonn 3978; (B) Bonn 3865.²

1. The FonOff (Deputy Assistant Secretary Ruete) yesterday called in the DCM’s of the three Embassies to present a memorandum³ revising last year’s German proposal for a negative Berlin clause. Ruete said that the proposal should not be considered sacrosanct as it now stands. He hoped that the three powers would study it carefully and present their views on it to the FonOff within a reasonable period of time.

2. Ruete explained that the same reasons which had led FonMin Schroeder to present the negative Berlin clause proposal at the Quadripartite NATO dinner on May 10, 1965⁴ still applied. The unfortunate leak of the proposal to the press had caused the FonOff to delay a year before pursuing it. However, the Germans had had indications from various East European Communist countries that, while a specific Berlin clause was unacceptable, Berlin could de facto be included in trade agreements and possibly other agreements as well. In view of these indications, the FonOff thought it worthwhile to attempt to bridge the gap between the German requirement of a specific Berlin clause and the Communist inability to accept one by the device of the negative Berlin clause.

3. The German proposal as redrafted makes the following recommendations.

(A) The govts of the Three Powers and the Allied Kommandatura (AK) Berlin would agree by amending BKC/L (52) 6 of May 21, 1952⁵ so that, even without a special Berlin clause or an appropriate declaration, Berlin is in principle considered to be included in any international agreement concluded by the FRG with another state.

(B) This would not affect the right of the AK Berlin to object in individual cases to the inclusion of Berlin in international agreements. In order to safeguard this AK right in theory and practice, the Germans suggest:

(1) Where time permits, each agreement be submitted through the Senat to the AK in the same way as has hitherto been done under the provisions of BKC/L (52) 6. If the AK objected to the inclusion of Berlin, the Fed Govt would make a statement to the Contracting Party (the depository power in the case of multilateral agreements) to the effect that Berlin was not included.

(2) When time does not permit the use of normal procedure, the Fed Govt would, upon conclusion of an agreement, make a special declaration reserving the right to declare later that the agreement should not apply to Berlin.

(3) Obviously the normal procedure is preferable in the case of Communist states. However, if the Fed Govt should need to conclude an agreement on short notice, the govt would send the text of the proposed agreement to the three Embassies in Bonn whose concurrence, if obtained, would be binding on the AK.

4. Elsewhere, the memorandum rejects the idea of a German declaration, negative or positive, to be made upon the conclusion of an agreement stating that it shall apply to Berlin. However worded, this procedure would in all likelihood be resisted by a Communist Contracting Party with the result that the dissent would come to light.

5. Full text of the memorandum follows by priority airgram.

Comment

6. Obviously, the German proposal will require careful study before a decision on it can be reached. In our view, an overriding consideration in any such examination should be to attempt to find a way to accommodate the German desire to move ahead in its Eastern policy which is now stalled over the Berlin clause issue. We feel we should defer to the German estimate that this procedure may be implicitly acceptable to the European Communist countries who, by letting it pass unchallenged, could hope to reap the benefits of trade and other agreements with the FRG which are now denied to them.

7. On first heading, it appears to us that the German proposal meets the requirements of Allied sovereignty in Berlin except possibly in respect to para 3 B (3) above. We are dubious about this proposal which will require the AK to accept, without examination, decisions made by the three Embassies under extreme time pressure.

8. It is apparent that if the Communist countries take issue with this procedure, it will have to be dropped as a false start. However, even if the Communist countries let it pass, the British in particular are likely to question whether the procedure really reflects the intention of both Contracting Parties to allow an agreement to apply to Berlin. We know from previous conversations with the British that they are opposed in principle to any procedure for applying treaties to Berlin which smacks of automaticity. Nevertheless, it seems to us that the Communist countries will always have the option open to them of declaring that they do not intend an agreement to apply to Berlin. If they fail to exercise this option, we can reasonably argue that in fact they do not object to the application of an agreement to Berlin, particularly if in informal soundings during the course of negotiations the Germans have determined that a specific Communist country is willing to accept the de facto application of the agreement in Berlin.

9. We agreed with the reps of the other Embassies that Bonn was the most suitable locale for discussion of the proposal. We suggest, therefore, that Berlin comment on the proposal upon receipt of the full text while we shall await the Dept’s views before commencing tripartite discussions here.⁶

McGhee

1. Source: Department of State, Central Files,POL 28 GER B. Confidential. Repeated to Berlin, Moscow, Paris, and London.
2. Telegram 3978 from Bonn, June 1, reported further on the German desire to reopen the Berlin claims discussion. (Ibid.) Telegram 3865 from Bonn, May 23, reported German officials’ desire to open this issue. (Ibid.)
3. Transmitted to the Department of State in airgram A–58, July 15. (Ibid.)
4. See Document 111.
5. For text, see Documents on Germany, 1944–1985, pp. 372–374.
6. In telegram 13901 to Berlin, July 22, the Department of State replied that it concurred with the Embassy recommendation, adding: “German memorandum sufficiently sensitive to Allied requirements to serve as basis for tripartite discussions.” The telegram gave a positive evaluation of the “negative Berlin clause.” (Department of State, Central Files, POL 28 GER B)