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

311. Memorandum From Helmut Sonnenfeldt of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger)¹

Washington, August 20, 1971.

SUBJECT

• The Berlin Agreement

The August 18 Agreement is clearly less advantageous to us than the February 5 Western draft.² (A comparison of the two texts begins on page 4.)³

Taken as a whole, the Agreement appears to offer the prospect of some relatively minor practical improvements for West Berliners, at a cost of some relatively minor reduction in Federal presence together with a significant dilution of the Western view of the status of Berlin. This last point, while not expressed in any single provision, comes from the entire context of the Agreement. It is clearly an Agreement for and about West Berlin—which appears from the Agreement to be an independent entity (although with some ties to the FRG) under some Four Power authority exercised at the time by the Three Powers with the consent of the Soviets.

There is a clear prospect for improvements in access such as sealed conveyances, and in a lesser opportunity for the GDR arbitrarily to harass. The price for these improvements is the derogation from the Western position on access (and enhancement of the GDR’s) by employment of terms such as “transit” and “international practice.”

We have not had to pay a price of any immediate, major and practical reductions in Federal presence, and we would have lost anyway on those aspects of presence which have been withheld during this period. Yet, we have lost in the general theoretical or psychological position, for the agreement makes it appear that West Berlin and the FRG have a relationship of separate states with close ties. This in itself would not necessarily be a problem were it not for a 13-year history of Western rejection, first of the Free City concept and then of the “special political entity.”

There is a prospect for improvement in inner-Berlin communications—and any improvement in this area would be an improvement. Once again, the price we have paid will relate to the general position on status (since the West Berliners will undoubtedly be treated as “foreign” visitors).

We have also made a slight gain in practice on the issue of representation abroad since now there is the prospect that the FRG can include Berlin in its agreements, exchanges, etc., with Socialist countries, as well as offer consular services for Berliners. The cost to us has been a strong suggestion of a Soviet role in the interests of West Berlin, as well as a hint that the Soviets will insist that the Three represent West Berlin in some international bodies (such as the [UN]Security Council and perhaps the Conference on European Security).

The handling of Soviet interests in West Berlin has been a loss to the West, though some, like Bahr, have argued that the Consulate General enhances rather than detracts from Three Power authority.

The general assessment, therefore, is that the results of the Agreement will be marginal in practical terms—both in gains and losses— for the immediate future. However, depending somewhat on its immediate reception in Germany and Berlin, the Agreement carries with it the seeds of a new status for West Berlin, a status which is closer to the Eastern position than the Western position.

It is quite possible that the Berliners will suspect that a new status has been reached, a status leading (sooner rather than later) to a Western pullback, and take their business and personal decisions accordingly.

The questions that obviously must be asked are whether better terms could have been obtained and whether we should try to improve on the terms that have been obtained. As regards the first point, it is my judgment that we have consistently underrated our bargaining power, and therefore settled on terms well short of what might have been achieved. The reason for this underestimate comes through clearly in the reasoning presented by Ambassador Rush. He argues, in effect, that we needed a Berlin agreement in order to restore an element of confidence in East-West relations, and by doing so, strengthen those Soviet political leaders who were seriously interested in an East-West détente.

While it may be true that the Brandt government badly needed an agreement it is also true that the failure of the Berlin negotiations and therefore the failure of the German-Soviet treaty, would have been a major disaster in Soviet policy, especially in the wake of our China moves. If as Rush argues, the détente faction in Moscow (a dubious proposition) needed to demonstrate that it could do business with the US, then we clearly should have been able to translate this into concrete concessions.

But the opposite occurred. The Soviets injected an issue—the Consulate General—which by its nature was not a Berlin “improvement”— but a political advance by the USSR, and they succeeded in forcing it through by displaying more patience and stamina than we did. The reason is obvious: by August 10, the option of no agreement was clearly not a viable one in Western policy. None of the Western governments involved seriously contemplated breaking off the negotiations. From the Soviet standpoint, then, the agreement demonstrates that the Western commitment to détente has evolved to a point that the USSR does not have to pay much of a price to maintain it.

If this analysis has any merit, I doubt that we can seriously expect to reopen the August 18 text with any prospect of tangibly improving on it unless we are able convincingly to project a willingness to go without an agreement. But this is hardly a prospect we can contemplate now since—referring solely to the Berlin context—to forego agreement at this point would not simply take us back to the crisis-ridden status quo ante but to a status quo minus. Not only can we not expect to resume activities in Berlin which have been suspended during the negotiations; we cannot allow activities which in the August 18 text are precluded. Not, at least, unless we are willing to have a major confrontation over Berlin. And such advances on access and intra-Berlin contacts, etc., which have been achieved would of course be lost. In addition it is quite unlikely that Brandt would be willing at this point to run the risk of losing the Berlin agreement.

This is, however, a first judgment and should not preclude our reviewing the text and being clear among ourselves where the deficiencies are. It cannot after all be precluded that the Soviets themselves might reopen certain issues on which they, or some of them, feel that despite their gains they have paid too great a price. Moreover, the allies, particularly the British, may want to make another try and a united allied front might conceivably achieve some marginal improvements. More likely, it will result in Soviet counterproposals and gain nothing. Procedurally, we should presumably await Ambassador Rush’s return and then, perhaps after some Allied consultations, put the issues in a Memorandum to the President.

As this exercise is gone through, we should recognize that the August 18 text does represent departures from the pertinent NSDMs.⁴ (State 152955⁵ lists them.) This raises the general question whether in fast-moving negotiations NSDMs are a valid vehicle for instructions. It does not, in my view, solve the problem to say that a text satisfies 80% or 90% or even 99% of what is prescribed in a NSDM. If a NSDM constitutes a Presidential instruction (rather than an approximate goal) then it ought to be in some fashion amended if it is to be departed from. Otherwise it, and the process that produced it, loses credibility in the bureaucracy.

Finally, if we do go ahead with the Agreement we will be opening the way to movement in FRG–GDR relations and on European security issues. At a time when economic issues have raised a host of new problems in our relations with the Europeans, we should envigorate alliance consultations on East-West issues and do what we can to minimize the divisive effects which we have always known will accompany heavy activity in East-West relations.

COMPARISON OF THE AUGUST 18 AGREEMENT AND THE

FEBRUARY 5 WESTERN TEXT

Preamble and General Provisions

The Western draft of February 5 made clear that the purpose of the agreement was to seek improvements “in and around Berlin,” thus indicating that the agreement covered the area of Four Power concern— the entire city, not just West Berlin. This concept is not manifested in the August 18 draft, which refers to the “relevant area.” The operative portions of the agreement as a whole expressly refer only to the Western Sectors of Berlin, and so imply that the agreement pertains only to that area. (Abrasimov repeatedly asserted that the negotiations related only to West Berlin. The Western Ambassadors rejected this and the issue has remained unresolved.)

The nonuse of force concept has also been altered significantly. The February 5 draft made it clear that the Four parties were assuming no obligation except that already existing under Article 2 of the UN Charter—which would permit us to use force in self-defense in the Berlin area, and access routes, for example. The August 18 agreement, however, provides flat commitment that “disputes shall be settled solely by peaceful means,” and that there shall be no use or threat of force “in the area.”

The last significant change in concept relates to the acceptance of the statement that the “situation” which has developed in the area “shall not be changed unilaterally.” This phrase has been a code-phrase, used by the Soviets throughout, for an acceptance by the West of the division of Berlin and the restriction of Four Power activities to West Berlin. The Western draft of February 5 had no such provision; indeed, the language in the August 18 agreement on this point is almost identical to that contained in the March 26 Soviet text.⁶ The preamble of the August 18 agreement also contains the language “taking into account the existing situation” which suffers from the same difficulty.

(A curious and very minor point is that the commitments in the General Provisions part relating to peaceful settlement of disputes, and no unilateral change in the situation—i.e., Soviet positions—are both presented in the mandatory “shall,” while all the Soviet “commitments” in the body of the agreement itself, such as on access, are in lesser, conditional forms such as “will” or “may.”)

Access

The basic concept of the Allied February 5 draft was that there should be a Four Power commitment that surface traffic shall be unhindered, etc., and that implementing measures should be agreed between the appropriate German authorities. There has been a complete shift. The August text now contains only a Soviet declaration that “transit” traffic will be unimpeded (the exact Russian translation of that word will be critical, and the Soviets have suggested that a word more comparable to “without difficulties” may be used). Further, details (not implementing measures) will be agreed by the “competent” German authorities. The general result is a considerable move toward a Western acknowledgment that the GDR is competent over the access routes, and that there is no general Four Power responsibility for them. This is underscored by the inclusion in the related annex of the statement that the Soviet declaration and information is in agreement with the GDR (the Western draft had accepted consultation with the GDR, but not agreement).

The implication of Western acceptance of a significant GDR role, the same as any transited state in international practice, is enhanced by the provision in the annex referring to transit traffic, through the GDR, which will receive the best treatment provided by international practice. The Western draft of February, of course, had nothing about international practice which—however harmless the context—will provide the Soviets and GDR with the ability to argue effectively that they are obligated to offer nothing more than the best of international transit practice (for example, the treatment the Indians accord to West Pakistanis wishing to transit to East Pakistan).

With respect to more of the detailed provisions on access, we have agreed in the August draft to accept GDR inspection of accompanying documents with respect to sealed conveyances. In the February draft we were willing to accept only inspection of the seals. Similarly, the February draft provides for no controls whatsoever for through trains and busses, but the August version permits identification of persons traveling on these through conveyances. The August agreement also permits (in special cases) search and detention of individual vehicles and travelers, whereas the February 5 draft contained no exception.

(All of these points are subject to interpretation and can be used to interfere with access. Whether they will be so used is of course another question.)

Bonn-Berlin Ties

The concept of the February 5 Western draft was that there should be a Four Power commitment in the body of the agreement to “respect” the relationship between Bonn and Berlin—which was set out in detail in a communication of the Three to the Soviets. This statement made clear that the Three have supreme authority in West Berlin, and that they determine the nature and extent of the Bonn/Berlin relationship. This concept is now changed. In the August agreement, there is no Four Power statement respecting the relationship established by the Three, but rather a statement only by the Three that ties can be developed taking into account that Berlin is not a constituent part of the FRG.

The annex relating to Federal presence extends the restriction to Bundestag committees and Fraktionen, as well as to “other state bodies” of the FRG (which include courts and ministries). The Western position on February 5 contined the Bundestag restriction to plenary sessions, and contained no general catchall phrase about other state bodies.

The detailed “interpretation” of the Federal presence provisions are contained in an Allied note to Brandt (this was not contained in the February 5 draft), and a copy of that note will be sent to Abrasimov to “inform” him of the interpretation of the Three Powers. Abrasimov will merely note and acknowledge the receipt. By using this procedure, the Soviets have assumed no obligation with respect to the Allied “understanding” of significant details on Federal presence, such as the fact that single committees of the Bundestag may meet in Berlin. (It is also interesting that in those areas where the Soviets wish clarity—their interests in West Berlin, and the passport issue—an agreed minute has been used, in contrast to the “information” note the Three will be employing concerning the details on Federal presence.)

Inner Berlin Communications

The general concept has not been altered significantly, although there has never been any detailed discussion of this entire subject. The February 5 draft provided that there should be a Four Power commitment that movement “shall” be improved; but in the August version, there is only a unilateral Soviet “declaration” that there “will” be improvement. An important point of the February draft was that access by West Berliners should be under conditions no more restrictive than those imposed on FRG residents. We have moved from this idea, and have accepted the position that the entry shall be under conditions comparable to “other” persons entering the GDR. This permits the GDR to treat West Berliners just as any other “international” visitors, and not necessarily the same as West Germans.

As in the general access provisions, there has been a shift from “appropriate” Germans “arranging” implementing measures, to “competent” Germans “agreeing” to details. Also, the agreement of the GDR is expressed in the annex. A small point: we failed to secure the opening of the Teltow Canal, as provided for in the February 5 text.

Representation Abroad

The concept has shifted significantly. In the February Allied version, representation abroad was considered to be an aspect of the general relationship between Bonn and Berlin, and so its provisions were contained in the Three Power statement (in exercise of their supreme authority) which all Four Powers agreed to respect. Now, this issue is treated separately, and is handled in the form of an exchange of communications between the Three and the Soviets. This implies that the Soviets have some role or authority over the general question of West Berlin’s representation abroad.

The February 5 draft noted that the Three had given a general authorization to the FRG to represent West Berlin, including issuing passports and consular matters. The August agreement, however, contains no general authorization, does not mention passports, and implies that the Three will continue to actively exercise responsibilities for status and security (implying that the Three may represent West Berlin in the UN’s Security Council, for example).

The exact arrangements with respect to passports are not clear. An agreed minute indicates that a West Berliner will have to carry (a) a German passport issued in accord with the Four Power Agreement (which contains nothing on passports), which has been stamped in an “appropriate” manner, (b) an identity card, which will have the appearances of a passport, and (c) a separate paper, inserted into the passport, which will also appear to be a passport issued by the Senat. The Soviet visa will be stamped on this inserted paper. The upshot of this is that the Soviets have not accepted German passports issued by the FRG as travel documents for West Berliners. And, the Allies have accepted documentation which arguably supports the theory of West Berlin as a separate entity under Four Power authority.

Soviet Interests

This is the most obvious shift from the February Allied paper, which expressly concerned only practical improvements for the inhabitants. The establishment of a Consulate General is provided for in the body of the August Four Power Agreement. In addition, the agreed minute relating to the Soviet interests states that the authorization for increased commercial activities will be “extended indefinitely.” There would appear to be no way in which the Allies could henceforth attempt to reduce the level of Soviet activities in West Berlin, even if there is cause.

Final Provisions

In the February 5 draft, there was a statement of commitment of the Four to implementation, both in Part III of the Agreement and in the Final Protocol (the Four agreed to “respect” the German arrangements, and will “see to it” that the measures are applied). The final provisions and the Protocol of the August Agreement contain nothing of this character. In addition, the agreement states that both the German and Allied agreements shall remain in force together (i.e., the GDR could void all agreements). There had been no such provision in the February Allied draft, but there was in the Soviet draft of March.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 692, Country Files, Europe, Germany (Berlin), Vol. IV. Secret. The memorandum was sent that afternoon to Kissinger in San Clemente.
2. See Document 173.
3. Kissinger wrote the following comment on another copy of the memorandum: “But Feb 5 draft was max position.” (National Archives, Nixon Presidential Materials, NSC Files, Box 728, Country Files, Europe, United Kingdom, Vol. VI)
4. Documents 225 and 285.
5. Document 306.
6. See Document 201.