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

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

Bonn, November 29, 1966, 1445Z.

6452. Personal for the Secretary from Ambassador McGhee. Subj: Berlin voting rights. I am sending this telegram to you personally because I know of your interest in this matter. Since I consider it very important that our position in the matter be made at the highest level in the Dept., I would appreciate a personal reply.

1. As you know, the issue of voting rights for Berlin Bundestag Deputies has again arisen in connection with the current governmental crisis in Berlin. A so-called mini-coalition between the SPD and FDP which was at one time seriously considered could only have been viable on the basis of the Berlin votes. When the three Allies, according to plans approved in the three capitals, reiterated in response to press queries that the Allied position on voting rights had not changed, Brandt and Mende of the FDP reacted sharply. In fact, it is obvious that if the Allies at this critical point had changed a position dating from 1949, as a favor to one German political party in resolving a political crisis in its favor, it would have been tantamount to Allied intervention in German domestic politics. State Sec Carstens, in a Quadripartite Berlin meeting yesterday, agreed fully that the three had no other choice.

2. The likelihood now is that a grand coalition between the CDU and SPD will be established in the formation of which the Berlin votes will have no importance. The immediate urgency of the issue has, therefore, probably passed. I believe that it is quite possible, however, that after the new government is in office, it may seek a change in the Allied position because of (A) the public discussion that has been renewed on the matter, (B) the SPD long-range interest in having its strength in Berlin accrue to its strength in the Bundestag, and (C) the likelihood that the new government will pursue a more active policy on Berlin and all-German questions. This will be particularly true if Brandt becomes FonMin.

3. I therefore believe that it is necessary to consider now what the US position should be if faced with such a request. Before the Tripartite position was made clear by the three Embassies, Brandt appears to have been acting on the assumption that Washington would not insist on the maintenance of the reservation on voting rights. He still appears to detect a cleavage on this issue between the Embassy and the Department. This matter is of such importance that, in my opinion, an established US position is required which can serve as guidance in our discussions—either locally or in Washington—with representatives of the new government.

4. In formulating our position, I believe that we must have a clear understanding of the political and legal consequences for our presence in Berlin which could result from the voting of Berlin Deputies. First, let us take a look at the legal background. The issue of the voting rights of the Berlin delegates in the Federal legislative bodies lies at the very heart of Quadripartite agreements defining Berlin’s special status. For the purpose of exercising their occupation rights in Germany, the four powers agreed in the London Protocol of September 12, 1944,² to divide Germany into four Occupation Zones and to create a special “Berlin area.” Greater Berlin was not at any time part of any of the four Zones of Occupation. For this reason, the three Allies have repeatedly rejected the Soviet claim that Berlin is “in” or “a part of” the GDR. By the same token, the three Allies have taken the position that Berlin may not form a part of the Federal Republic.

5. In accordance with these principles the Military Governors, in May 1949,³ took action to ensure that Berlin was not incorporated into the organization of the Federal Republic as originally contemplated by the framers of the Basic Law. While permitting “greater Berlin” to participate “in the federation,” the Military Governors withheld from Berlin representatives the right to vote in these bodies and also decreed that Berlin may not be governed by the federation.

6. If Berlin Delegates were to exercise full voting rights in the Federal legislative bodies, this would mean that the Berlin population and Land Berlin through their representatives would participate in an essential function of government in the Federal Republic like the rest of the West German population. Voting membership of the Berlin Delegates in the Federal legislative bodies thus would mean de facto membership of Berlin in the Federal system, contrary to the Quadripartite agreements. The membership would likely become increasingly de jure as the Federal Government would probably follow up this step with other measures which would logically flow from the granting of voting rights to the Berliners. While this development would not nullify the right of the three powers to be in military occupation of Berlin, which stems from the defeat of Germany, the exercise of the right could become legally precarious.

7. Viewed from the political point of view, the argument can be made that we can dispense with the legal formalities defining and arising out of Berlin’s special status so long as an Allied military presence is maintained there. It is certainly true that this presence, not international agreements, is the final deterrent against Communist encroachments. However, I believe that the crisis of 1958–62 demonstrated the great value of maintaining the integrity of our legal position. In their November 1958 “free city” proposal, the Soviets took pains to attempt to demonstrate to world opinion that they were promoting a reasonable solution to West Berlin’s anomalous situation, based on allegedly defunct Quadripartitie agreements. Our ability to rebut this latter line helped much to expose the falseness of the Soviet rationalization and the aggressiveness of Moscow’s intentions.

8. The same is true with respect to access by the three Allies and the German population to Berlin. The right of the Allies to unrestricted access to Berlin is an essential corollary to their right of occupation. The Soviets however may contend that the arrangements concluded to enable the Allies to exercise this right were affected by the abolition of the separate status of Berlin. A blurring of the status of Berlin would work to their advantage if they chose again to make access dependent on GDR permission.

9. I would emphasize that such an effort on the part of the Soviets is, in the Embassy’s view, not to be expected as an immediate result of the granting of voting rights. The immediate Soviet response would probably be more in the nature of propaganda than of action. The Soviets show no inclination at present to rock the boat in Berlin and would probably confine their reaction to protests and to the final incorporation of East Berlin into the GDR administration. (They might also further stiffen their opposition to the inclusion of a Berlin clause in international agreements.) Even so, retaliatory harassment of access routes is obviously within Communist capabilities, and so we cannot exclude this possibility from any assessment of consequences.

10. A further consideration which causes me concern pertains as much to the Germans as to the Soviets. If the FRG increasingly assumes de facto governing responsibilities in Berlin, we could find ourselves in the future in the unenviable position of having formal responsibility for the security of Berlin but without having all the control strings firmly in our hands. For example, the FRG quite probably would undertake more frequent Bundestag meetings in Berlin if the Allies were not in a position to exercise restraints. The Bundeswehr logically could be expected to assume a role in Berlin. We would, of course, still be expected to resist Communist countermeasures. Similarly the Berlin Senat would accept a larger and more active Soviet presence in West Berlin if Allied control should weaken. Again the Allies would have to face the consequences. Given the potential dangers of any Berlin confrontation, this is obviously a situation we would want to avoid.

11. Looked at from the Allied point of view in Berlin, the desirability of keeping intact the present status of Berlin’s voting rights is evident from the foregoing. But we must also recognize that a Federal Government in which the Social Democrats participate will be less likely to go along with this position than previous Federal Governments have been. The question therefore will arise whether in the light of our over-all relations with the FRG we can or should maintain a position which the FRG will consider outmoded and (by the Socialists) discriminatory. Given a determined stand by a German Government to alter the status quo, we would probably have to make the best of a bad situation by acquiescing in the move. Continued resistance on the part of the three Allies could seriously strain our relations with the new government and—in the end—might be fruitless.

12. These considerations have guided our contingency planning so far. The three Allies in consultation here agree that their position under present circumstances has been made clear and, consequently, there is no need for further action or statements at this time. If, despite the Allied stand, the Germans proceeded to count the Berlin votes in the nomination of a Chancellor, the three Embassies would not contest the move but would issue a public statement to the effect that our rights in Berlin are unaffected, and make a confidential démarche to the new government pointing to the pitfalls of this course of action. There is some disagreement, however, as to how strong this démarche should be. The British do not agree to a specific caution in this context against allowing the Berlin Delegates to vote on legislation. This is also the sense of the Department’s current instructions to us (State 90602).⁴ I believe that such a caution would be highly desirable. Without committing ourselves to any specific course of action we should send a grave warning as to the consequences of this next step, which Carstens told us yesterday would surely follow.

13. This leads to the consideration of the second and—as I have indicated—more likely contingency, namely, that the new government will not count the Berlin votes in naming a new Chancellor but will move at some later date to adopt a law validating the Berlin votes for substantive legislation. The new government would, I believe, approach the Allies before embarking on such a course but might well couch this approach as a decision about to be taken—rather than a request for approval. To cope with this possibility I believe we should seek agreement with the British and French to approach the FonOff—presumably to be headed by Brandt—shortly after the formation of the new government. The three Allies would take note of Brandt’s previously expressed wish for consultations and of statements by SPD spokesmen indicating an intent to initiate new legislation to validate the Berlin votes. Without threatening, we would say that we oppose such a step for reasons which we would outline and that if it is taken unilaterally we would have to have a second look at our Berlin obligations. At the same time, in the spirit of consulting, we would state that we are prepared to consider the views of the German Govt if they wish to present them.

14. Such a démarche might have the effect of checking a German initiative before it became entrenched. Since we would preserve our freedom of action, we would reserve for the time our final decision in the light of the developing circumstances, including the degree of cooperation shown by the new government and the Senat in Berlin affairs and the attitudes of our British and French Allies.

McGhee

1. Source: Johnson Library, National Security File, Country File, Germany, vol. 11. Secret; Exdis.
2. For text, see Documents on Germany, 1944–1985, pp. 1–3.
3. For text, see ibid., pp. 260–262.
4. Telegram 90602, November 23, provided instructions regarding contingency planning for Berlin. (Department of State, Central Files, POL 15–2 GER W)