Foreign Relations of the United States, 1951, European Security and the German Question, Volume III, Part 2

762A.00/9–151

Paper Prepared by the Berlin Element¹

secret

Berlin, August 31, 1951.

Draft Position Paper on New Relattonships To Be Established in Berlin

Summary It is considered a political necessity to liberalize Allied-German relationships in Berlin as much as possible simultaneously with the establishment of contractual arrangements in West Germany.

Tripartite discussion in Berlin of this and related subjects during the past few weeks has revealed a profound divergence of views between the British and the U.S., on the one hand, and the French on the other which, it is believed, cannot be resolved at a level lower than that of the Foreign Ministers. Failure to resolve it can only lead to deterioration of Allied and Allied-German relationships in Berlin and to a retarding of the city’s administrative progress and economic development. The only ones to benefit from this situation will be the Soviets.

The recommended U.S. position, with which it now seems likely that the British will in general concur, is that beyond the retention of supreme authority and the continuation of the ban on Berlin’s becoming a twelfth Land of the Federal Republic, the Germans shall be allowed to conduct their own affairs subject only to Allied intervention under certain circumstances or for the fulfillment of certain objectives; furthermore, that Berlin shall be encouraged to develop the closest possible ties with the Federal Republic short of de jure twelfth Land status. An essential corollary is a guarantee of continued Federal aid for Berlin.

The French position is, of course, similar to that of the U.S. insofar as concerns the retention of supreme authority and the ban on Berlin’s becoming a twelfth Land. Beyond that, however, there is no agreement. The French wish no relaxation of controls except for a reduction in the number of reserved powers. They furthermore wish to re-establish the Allied right of prior approval of German action “in certain fields”, which is understood to include any matters concerning Berlin’s association with the Federal Republic such as legislation and treaties. They emphasize that there should be no association of Berlin and the Federal Republic which would give the city any attributes of even de facto twelfth Land status.

i. problem

1. To determine the extent of liberalization which can be effected in Berlin as a counterpart to the establishment of contractual relations in West Germany.

ii. discussion

• 1. Although the Brussels Decisions do not of themselves require modification of Allied-German relationships in Berlin, it is politically impossible not to liberalize those relationships as much as possible under the special circumstances existing in Berlin, simultaneously with the establishment of contractual arrangements in West Germany.
• 2. The Allied High Commission, in AGSec(51)690 of April 24, 1951,² invited the Berlin Commandants to express their views regarding the matters in which Berlin would require support from the Federal Republic, in view of the “possible effects upon Allied and German interests in Berlin of the intended changes in the present occupation regime”. The Commandants’ reply, which was contained in BK/AHC(51)37 of May 26, 1951,² listed 14 points on which they considered Federal aid to Berlin necessary. The Commandants did not comment on how this aid was to be guaranteed, since they understood that this subject was under discussion in the High Commission.
• 3. In AGSec(51)649 of April 16, 1951,² the High Commission sought the Commandants’ opinion on “the possible changes which may be required in Berlin in connection with the establishment of contractual relations between the three powers and Western Germany, assuming that the contractual arrangements with the Federal Government will not themselves alter existing relations between the Allied Kommandatura and the Berlin City Government”. The Commandants’ reply to this was delayed, due to basic differences of opinion, until July 27, 1951, when they submitted BK/AHC(51)67.³ This document showed disagreement between the Commandants regarding the extent of liberalization and the form of the new instrument of control which might be introduced in Berlin. The French and British Commandants favored a mere revision of the existing Statement of Principles with retention of certain reserved powers; the U.S. Commandant advocated substituting for the Statement of Principles a generally worded document which would not spell out any reserved powers as such but would merely reserve to the Allies the general right to intervene under certain circumstances or for the fulfillment of certain objectives. He furthermore recommended the use of a new title such as “Declaration of Allied and German Eights”, in order to introduce a new note into the instrument of control.
• 4. Subsequent to the dispatch of BK/AHC(51)67, it became evident that the basic disagreements between the Commandants went far deeper than that document reflected. Two matters which came to a head in the Kommandatura gave the first indication of the real depth of disagreement. The first concerned Berlin’s participation in international agreements of the Federal Republic (see BK/AHC(51)79 of August 21, 1951⁴). The British and U.S. Commandants were content with a procedure whereby Allied control would consist of the possibility of (a) intervention before negotiation of an agreement and (b) post-annulment if it appeared necessary. The French Commandant agreed to (a) only on condition that the Kommandatura have the right of prior approval of an agreement. This is, of course, contrary to para. 5 of the Statement of Principles which gives the Kommandatura the right of prior approval only in the case of constitutional amendments or a new constitution, and the British and U.S. Commandants therefore rejected the French view. The second matter which exposed the extent of the differing points of view concerned the taking over by Berlin of Federal legislation (see BK/AHC(51)81 of August 29, 1951⁵). The British and U.S. Commandants agreed that the terms of their Aide-Mémoire of August 31, 1950,⁴ which, in effect, sought to prevent the reference in any Berlin legislation to “Federal agencies, Federal institutions, or the Federal law itself as being operative in Berlin”, were impracticable in view of Berlin’s economic and financial dependence on the Federal Government, the desirability of close ties otherwise between Berlin and the Federal area, and Berlin’s consequent need to adopt Federal legislation. The French Commandant disagreed and proposed even going beyond the terms of the Aide-Mémoire by requiring prior submission to the Allied Kommandatura of “any draft law referring to a Federal law or agency”. This again is contrary to para. 5 of the Statement of Principles.
• 5. Although the instances of disagreement cited in 4 above are not directly concerned with the revision of the Statement of Principles or the substitution therefor of a new document, it is obvious that agreement concerning the new instrument of control is dependent upon a resolution of these basic differences along with other points of disagreement. Both points have been referred to the Allied High Commission but no decision has yet been reached, and French officials in Berlin have expressed the opinion that no resolution of the problem can be expected short of the Foreign Ministers.
• 6. The French position regarding future Allied-German relationships has been summed up by French officials in Berlin as follows:
  • (a) Berlin shall not have twelfth Land status.
  • (b) The Allies shall retain supreme authority.
  • (c) Berlin shall have no association with the Federal Republic which would give the city any attributes of even de facto twelfth Land status (they interpreted this as excluding the points mentioned in IV, 2, (d) below).
  • (d) There shall be no relaxation of controls other than a reduction in the number of present reserved powers.
  • (e) The Allies shall re-establish their right of prior approval of German action “in certain fields” (this was unclarified but presumably meant at least in any matters concerning Berlin’s association with the Federal Republic, i.e., treaties, legislation, etc.).
• 7. In spite of British alignment with the French on many important points in BK/AHC(51)67, subsequent discussions have revealed that the British position appears to be substantially similar to that of the U.S. as outlined in III and IV below, and it is believed that we can count upon their support during the Foreign Ministers’ meeting.

iii. conclusions

• 1. It is obvious that there are major differences of policy, as regards Berlin, between the French on the one hand and the British and the U.S. on the other. If these differences are not resolved, the Allies will be faced with a serious situation during the coming months. For example, there is already a stalemate of indecision in the Allied Kommandatura because of disagreement regarding the Aide-Mémoire (see II, 4 above). A number of laws were passed by the Berlin House of Representatives, during the months prior to its summer recess August 1, which violated or could be interpreted as violating the terms of the Aide-Mémoire. The Berlin authorities have been reprimanded for this and told that the laws might have to be annulled despite the fact they have now been in effect for some months. After considerable study, it became evident that annullment or amendment of the laws could well jeopardize Berlin’s receipt of financial aid from the Federal Republic. The French nevertheless desire annullment while the British and U.S. stand on their position as set forth in BK/AHC(51)81. Meanwhile the laws continue in effect. When the House reconvenes September 27 one of two things must happen: either the House will present us with further faits accomplis in the form of more laws objectionable to the French, or they will have to be told to suspend all legislative action involving Federal legislation until the Allied Kommandatura is able to reach a decision. The same stalemate will apply concerning Berlin’s participation in treaties (see II, 4 above). The result will be an inevitable deterioration in inter-Allied and Allied-German relations which cannot fail to undermine our position here and play into the hands of the Soviets.
• 2. Although a temporarily feasible compromise might be found on some points of disagreement, the fundamental difference in positions appears too profound to admit of any superficial compromise being effective for very long. It is therefore concluded that nothing short of resolution of the basic disagreements themselves will lead to an improvement in the situation and permit the liberalization of Allied controls which, in the U.S. view, is essential.

iv. recommendations

• 1. That the U.S. make clear that its position is based on recognition of three important points:
  • (a) It is unrealistic and undesirable to retard the normal progress of Berlin’s self-administration by the retention of direct Allied controls over the City Government.
  • (b) It is impracticable to retain controls which the Allies are unable to administer effectively because of reductions in personnel.
  • (c) It is economically and politically unwise to prevent the development of as close association between Berlin and the Federal Republic as is possible short of de jure twelfth Land status.
• 2. That the U.S. therefore propose the following as a basis for the liberalized relationships to be established in Berlin:
  • (a) Berlin shall not acquire twelfth Land status through the proposed changes in relationships.
  • (b) The Allies shall retain supreme authority.
  • (c) Beyond this, the Germans shall be allowed to conduct their own affairs subject only to Allied intervention, or Allied resumption of authority in whole or in part, if to do so is necessary to maintain security, fulfill the international obligations and interests of their Governments, or to preserve the city’s economic and financial stability.
  • (d) Berlin shall be encouraged to develop the closest possible ties, short of de jure twelfth Land status, with the Federal Republic. This shall include permission for Berlin to adopt Federal laws by means of a Mantelgesetz (cover law); to merge certain offices and services with those of the Federal Republic such as the Postal Department; and, where necessary in view of economic and financial aid given Berlin by the Federal Republic or because of other practical considerations, to permit the Federal Republic a certain amount of authority in and over Berlin provided that Berlin itself, by legislative act, approves the exercise of that authority.
• 3. That the instrument of control be in the form of a generally worded document to be entitled “Declaration of Allied and German Rights in Berlin”; or, if agreement cannot be reached for a generally worded document, that something along the lines of the draft attached hereto as Appendix “A” be proposed as the maximum concession we are prepared to make.
• 4. That it be understood that, before a final draft is reached, the views of the city authorities are to be obtained with regard to form, substance and presentation of the new instrument of control.
• 5. That Federal aid to Berlin, in the fields outlined in BK/AHC(51)37 of May 26, 1951, be guaranteed by means of a contractual agreement between the Western Powers and the Federal Government, or otherwise.

Appendix “A”

secret

Draft Declaration of Allied and German Eights in Berlin

The Allied Kommandatura hereby promulgates the following Declaration which cancels the Statement of Principles of 14 May 1949 and the First Instrument of Revision thereto, dated 8 March 1951.

1. Berlin shall have full legislative, executive and judicial rights and powers in accordance with the Constitution of October 1, 1950, as approved by the Allied Kommandatura on August 29, 1950, subject only to the provisions hereafter set out.

2. The Allied Authorities reserve the right:

• (a) to take such measures as may be necessary for the maintenance of security, [the preservation of democratic government],^* the fulfillment of the international obligations and interests of their Governments, or the preservation of the economic and financial stability of Berlin;
• (b) to act and legislate for the protection, prestige and security of the Allied forces, their dependents, employees and representatives, their immunities satisfaction of occ costs, and their other requirements.

3. To insure that the objectives set forth in paragraph 2(a) above are secured, Berlin authorities will notify the Allied Kommandatura of any action or legislation it contemplates or undertakes in the following fields:

(Here there would be listed such items of the present reserved powers as must be retained, although they would no longer be “reserved powers” as such)

[Certain of the above fields may be deleted from this Declaration upon the enactment of legislation satisfactory to the Allied Kommandatura

mandatura and upon an undertaking by the Berlin authorities not to repeal or amend such legislation without Allied consent].^†

4. All Berlin legislation will be effective without review by the Allied Kommandatura but will be subject to repeal or annulment by it should the objectives stated in paragraph 2 (a) above require such action.

5. Allied legislation which is inconsistent with this Declaration will be repealed upon request of the appropriate Berlin authorities. All other Allied legislation will remain in force until repealed or amended by the Allied Kommandatura or the Sector Commandant concerned.

1. The source text was attached to a paper, dated September 1, entitled “HICOG Comment on Berlin Paper”, not printed, which stated that it was accepted by the U.S. High Commission for Germany “as consistent with and representing its own views subject to the following qualifications:” (1) HICOG was not prepared to agree to the merger of the Berlin and Federal Post or to allow the Federal Republic authority over Berlin in view of the possible repercussions to access to Berlin, (2) as regards the draft Declaration, HICOG felt the reservations on the twelfth Land status should be clearly set forth, paragraph 2(b) should be eliminated, and the list of powers to be retained was not yet necessary. After agreeing that a decision of the Foreign Ministers was necessary with regard to the future of Berlin, the paper concluded:

   “While the French Element of the High Commission is far more liberal and inclined to reason than the French Element in the Kommandatura, it is still subject to a legalistic and somewhat narrow approach and frequently to undue influence from the rigid views of the French Element in Berlin. HICOG agrees that only a Foreign Ministers’ decision will correct this situation.”

2. Not printed.
2. Not printed.
2. Not printed.
3. Dated July 27, p. 1922.
4. Not printed.
5. Not found in Department of State files.
4. Not printed.
5. We believe this phrase is sufficiently covered elsewhere and could therefore be deleted here.
6. This sentence is so far only tentatively included at the suggestion of the British. We see no particular objection but believe it requires further consideration. [Footnote and brackets in source text.]