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

CFM files: lot M 88: box 187, questions affecting Berlin

The Chairman-Secretary of the Allied Kommandatura, Berlin (Sleeman) to the Secretary-General, Allied General Secretariat, at Frankfurt¹

secret

Berlin, July 27, 1951.

BK/AHC(51)67

Subject: Effect in Berlin of the Implementation of the Brussels Decisions on Contractual Agreements²

Preamble

1. The Commandants have studied AGSec(51)649 of 16 April 1951,³ which asks for their opinion in regard to possible changes which may be required in Berlin in connection with the establishment of contractual relations between the three Powers and Western Germany.

2. The Brussels decisions (unlike the New York decisions of September, 1950⁴) do not explicitly call for any action in Berlin. Politically, however, it is most desirable that such a milestone in the development of Allied-German relations in West Germany should have a simultaneous counterpart in Berlin.

3. In considering what form changes might take, the Commandants have assumed that the position of Berlin remains as follows:

• (a) The sectoral occupation of Berlin continues under military Commandants.
• (b) The (theoretical) unity of Berlin under the Senate and the quadripartite Allied Kommandatura continues.
• (c) The suspension of Article I, paragraphs 2 and 3 of the Berlin Constitution (regarding Berlin’s association with the Federal Republic) remains.

I. Should Contractual Agreements Be Negotiated in Berlin?

4. The Commandants are legally advised that

• (a) There is no method whereby contractual agreements can be entered into between persons or a body representing three of the Allies on the one hand and the Berlin City Government on the other which is not open to legal criticism in some degree or other.
• (b) Probably the least objectionable method (if contractual agreements for Berlin are considered to be essential) would be for the three Western Commandants, each authorised ad hoc by his respective Government, to be jointly and severally the parties of the first part to any agreement. The Regierende Bürgermeister would be the other party. To allow the Bürgermeister so to act, any necessary prior amendment should be made to the Statement of Principles⁵ and his authority to execute the particular contract (or contracts) on behalf of the City Government should be provided for in a Law passed by the House of Representatives.

5. The Commandants consider that it would be politically inadvisable to tamper with the legal authority reposing in the Allied Control Council, from which the authority of the Allied Kommandatura depends, as long as the Control Council still theoretically exists. Furthermore, were the course suggested in paragraph 4(b) of the legal opinion above adopted, the Commandants would have been deprived of the right to exercise in the Allied Kommandatura certain powers which the fourth (Soviet) member would not have surrendered and would still theoretically be able to exercise through the Allied Kommandatura. From the practical point of view, given the constitutional peculiarity of Berlin, its financial and economic dependence on the Federal Republic, and the vulnerability of the Allied position here, there are probably few reserved powers which could satisfactorily be the subject of contractual agreements.

6. Conclusion: No contractual agreements in Berlin.

II. What Should Be the Instrument of Control Defining Relationships Between the Allies and the Berlin City Government?

7. The Commandants have considered three possibilities:

• (a) Substituting for the Statement of Principles a new document which would not spell out any reserved powers but would reserve to the Allies a general right to intervene in the interests of security, democratic government, the international obligations and interests of the Allies, or the financial and economic stability of the City.
• (b) Substituting for the Statement of Principles a generally-worded document as suggested in (a) above, accompanied by a confidential document defining the specific fields in which the Commandants reserve the right to exercise control.
• (c) Revision of the Statement of Principles. There are three ways in which the present Statement of Principles might be liberalised in substance:
• (i) By elimination or modification of certain existing reserved powers independently of any German action.
• (ii) By elimination of other reserved powers contingently upon a contract between the Western Allied Governments and the Federal Republic.
• (iii) By elimination of further reserved powers contingently upon German legislation in Berlin.

8. Under a revision of the Statement of Principles, or a new document defining specific reserved powers, the following powers presently reserved might be eliminated or modified (see Statement of Principles attached as Annex “A”⁶):

2. (f), provided that the suspension of the provisions of the Berlin Constitution regarding Berlin’s association with the Federal Republic remains, and provided that a Constitutional Court is available. (The French Commandant considers necessary the further stipulation that a Berlin Constitutional Court be available, and that a safeguarding clause regarding possible constitutional amendments be included in the instrument of control).

2. (h), provided that the position of Spandau Prison is not affected.

9. The powers presently reserved under 2(g) of the Statement of Principles, and perhaps parts of 2(a) and (b), might be eliminated contingently upon a contract between the Western Allied Governments and the Government of the Federal Republic.

10. The powers presently reserved under 2(d) and other parts of 2(a) and (b) of the Statement of Principles might be eliminated contingently upon German legislation.

11. The powers now reserved under paragraphs 2(c), (e) and (i) of the Statement of Principles must be retained in one form or another.

12. It must be noted that revision of the reserved powers in Berlin depends on whether and to what extent contractual agreements concluded with the Federal Republic will contain provisions for Berlin. It is emphasized that some means must be devised for continuing economic and financial aid for Berlin, as set forth in BK/AHC(51)37.⁷

13. Conclusions:

• (a) All three Commandants recommend against the proposal made in II.7(b) above (i.e., a generally-worded document accompanied by a confidential definition) on the grounds that it is most undesirable to have any secret document of control which is more restrictive than the public document. In addition such a secret document must inevitably become common knowledge in view of the effect it would have on the day-to-day processes of government, and its purpose would thereby be defeated.
• (b) The French and British Commandants believe that a revision of the Statement of Principles as in II.7(c) above is the preferable procedure. They are against the course mentioned in II.7 (a) (a generally-worded document) for three reasons:
  • (i) A precise definition of reserved powers is desirable in order to prevent disagreements among the Allies on when they should intervene, and also to prevent recrimination from the Germans if intervention is decided upon.
  • (ii) They believe that the Germans themselves might prefer to know as precisely as possible where they stand and not be subject to a general reservation which might mean everything or nothing, and
  • (iii) Such a document, however liberally it might be interpreted, would be a gift for communist propaganda.
• (c) The French and British Commandants therefore recommended that an examination of the possibilities of a revision of the Statement of Principles along the lines mentioned in II.7(c) above be instituted forthwith. The U.S. Commandant agreed, despite his immediately following recommendation, and action has been taken accordingly.
• (d) The U.S. Commandant recommends that the generally-worded document envisaged in II.7(a) above be adopted. He is of the opinion that, although the special circumstances prevailing in Berlin prevent the granting of as much authority in Berlin as in the Federal Republic, every effort should be made to introduce a new note into Allied-German relationships in the city, and to put those relationships on as liberal and realistic a basis as possible. This cannot, in the U.S. view, be accomplished by mere revision of the Statement of Principles in more or less the same form as at present and with the substance changed only be a reduction in the number of reserved powers. The adoption of a “Declaration of Allied and German Rights in Berlin” is therefore recommended. (See Appendix “B” for further expansion of this recommendation and for draft “Declaration”).
• (e) All three Commandants have agreed that, whatever instrument of control may ultimately be decided upon, their Political Advisers have been authorised—at their discretion as to timing—to obtain the views of the German authorities with regard to form, substance and presentation of a new instrument of control.
• (f) All three Commandants have noted with interest the proposal to establish, in the Federal Republic, a “Disputes Commission”. Although the situation in Berlin is not the same, the British and, U.S. Commandant recommends that, whatever instrument of control may be agreed upon, there be established an “Allied-German Consultative Commission” which would, as its name implies, have consultative powers only. It is believed that such a Commission would offer an effective means of maintaining the necessary Allied-German cooperation, and for constructive discussion of divergent opinions. The French Commandant reserves his final opinion on this point, feeling personally that it is not acceptable at the present time.

III. What Should Be the Relationship Between the Allied Administration in Berlin and the Council of Ambassadors in the Federal Republic?

14. Secret Minute 3 (agreed Minute on controls in Berlin) of the Charter of the Allied High Commission established a procedure which has in practice worked satisfactorily.⁸ Its disadvantage has been that, since it defined the relationship between the quadripartite Allied Kommandatura, of which the Soviet Union remained theoretically a member, and the tripartite Allied High Commission, in which the Soviet Union was not a member, its existence has had to remain secret. The question therefore arises whether some device should not be sought which would obviate the necessity for such a secret definition of Allied relationships.

15. Conclusions:

• (a) The British and French Commandants suggest that the arrangement set out in secret Minute 3 might remain, perhaps in unwritten form. They see no great objection, however, to a written formulation which would remain secret.
• (b) The U.S. Commandant prefers the elimination of any secret Minute and suggests that if the U.S. recommendation under V below were adopted the necessity for such a Minute would no longer exist.

IV. Should the Allied Kommandatura Be Supplemented by a Tripartite Allied Organization?

16. The Commandants see little advantage in this for the purpose of the normal administration of Allied controls in the city. Such a body could indeed be overtly subject to the authority of the Council of Ambassadors in the Federal Republic (see III above) but it would serve no other practical purpose and it would still be necessary to camouflage the relationship of authority between either of these bodies and the quadripartite Allied Kommandatura which would still be the formal authority in the city.

17. Conclusion: No such tripartite Allied organisation should be established.

V. Should the Allied Civilian Headquarters in Berlin Change Their Appearance or Nature?

18. It has been suggested that the title of “Military Government”, still in use in Berlin by the British and French civilian elements, be eliminated and that the three Commandants should be supported by diplomatic officers who would have the title of “Ministers”, “Counsellors of Embassy”, or “Consuls-General”. These officials, the successors of the present “Deputies”, would be under the authority of their respective Ambassadors in the Federal Republic and would be the channel of instructions from the Ambassadors to the Commandants and for appeals from the Commandants to the Ambassadors, although the Commandants would, of course, remain the authoritative head of each element and would act as such through the Allied Kommandatura. In the U.S. view, this would be a step toward normality in Allied-German relations in Berlin and would provide a solution to the problem of subordinating the quadripartite Kommandatura to the tripartite Council Of Ambassadors. There would seem to be no practical reason why the Allied Embassies in the Federal Republic should not establish offices in Berlin even though the latter is not formally a part of the area administered by the Federal Government. Furthermore, there could be no valid objection from the Soviet point of view since the Soviet Ambassador to the G.D.R. has his residence in Berlin.

19. The British and French Commandants, on the other hand, feel that from the practical point of view little would be gained by this arrangement, while from the formal point of view there might be objection to having a quasi-Foreign Service post in Berlin where there is no Government with international status and where the writ of no Ambassador or Minister runs. On the question of title, the French and British Commandants hold the view that so long as it is desired to preserve the fiction that Berlin is administered as quadripartitely agreed in 1945, it is better to make no more formal changes in administration than are called for by the actual process of substantial liberalisation which continues. Further, so long as Berlin is not to be part of the Federal Republic they see no disadvantage in underlining the differences between the Allied positions in the Federal Republic and in Berlin respectively. They would not, however, of course, suggest that the U.S. element should feel inhibited from making such changes as its diplomatic policy and practice suggest.

20. Conclusions:

• (a) The British and French Commandants recommend that no changes be made in the present status of the three Allied Headquarters in Berlin unless any element desires to make a change independently.
• (b) The U.S. Commandant suggests that elimination of the term “Military Government”, and the substitution therefor of “Consulate-General” or “Berlin Office of the———Embassy” would help to underline the liberalised status which it is hoped may be achieved in Berlin.

21. The Commandants request the Allied High Commission:—

• (a) to confirm the following agreed conclusions:—
  • (i) There should be no contractual agreements in Berlin. (Part I, para 6),
  • (ii) The Allied Kommandatura should not be supplemented by a tripartite Allied organization (Part IV, para 17).
• (b) to give its direction on the following matters upon which tripartite agreement could not be reached:—
  • (i) The future instrument of control, defining relationship between the Allies and the Berlin City Government (Part II, paras 7–13),
  • (ii) The relationship between the Allied Administration in Berlin and the Council of Ambassadors in the Federal Republic (Part III, paras 14 and 15),
  • (iii) Whether the Allied Civilian Headquarters in Berlin should change their appearnce or nature. (Part V, paras 18–20).

R. B. Sleeman Lt. Colonel

Appendix B⁹

secret

Expansion of U.S. Commandant’s View Under II, Conclusions, Para. 13(d), Regarding Instrument of Control

• 1. Aside from the arguments advanced in the text of the report, the U. S. Commandant considers that the generally-worded “Declaration” below adequately covers all fields in which it will be necessary to retain control under the new relationships. While its terms are broad enough to permit without question the resumption of full authority should circumstances necessitate it, or to intervene with the City Government in any field genuinely affecting Allied interests, it eliminates the necessity for much of the cumbersome supervision required by the present Statement of Principles—a supervision which is irksome to the Germans and is becoming increasingly difficult for the Allies to handle with the reduced personnel available. With regard to the argument advanced by the British and French Commandants that a precise definition of reserved powers is desirable in order to prevent difficulties of interpretation (see II, Conclusion (b) of this report), the U. S. Commandant considers that the general statement is sufficiently precise to cover intervention in any important matter and that, under the new relationships, intervention in unimportant matters should no longer be necessary. Furthermore, existing BK/O’s, defining Allied instructions in the fields covered in para. 2 of the Draft Declaration below, can remain in existence and others can be issued as may be necessary.
• 2. The following Draft Declaration of Allied and German Rights in Berlin is therefore proposed:
  • “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 of paragraph 2 of this Declaration.
  • 2. The Allied Authorities reserve the right to intervene, or to resume in whole or in part the exercise of full authority, if they consider that to do so is essential to the maintenance of security, to the preservation of democratic government, to the fulfilment of the international obligations and interests of their Governments, [or to the preservation of the economic and financial stability of Berlin.]¹⁰ (Final opinion on wording of phrase in brackets reserved pending further study in the light of arrangements regarding aid to Berlin which may be negotiated between the Western Allied Governments and the Government of the Federal Republic).
  • 3. The Statement of Principles Governing the Relationship between the Allied Kommandatura and Berlin of May 14, 1949, and the First Instrument of Revision thereof, effective March 8, 1951, are hereby rescinded.
  • 4. 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.”
  • 3. While hoping that a generally-worded statement along the lines of the above draft may eventually be agreed upon, the U.S. Commandant recognizes the advisability of proceeding meanwhile with the revision of the Statement of Principles as recommended by the British and French Commandants. In the U.S. view, however, it is important that this revision should accomplish as great a liberalization of the Allied-German relationships as is consistent with Allied requirements for security. The revision should consist of something more than a mere reduction in the number of reserved powers. It should take into account the realities of the situation and should not attempt to impose controls which the Allies are unable to administer effectively because of lack of personnel and which hence would only prevent effective administration of the City by the German authorities. In particular, it is recommended that, whatever reserved powers may be retained, consideration be given to delegating to the Germans full authority in those fields, subject only (a) to the need for keeping the Allied Kommandatura informed and (b) to the right of the latter to intervene should it consider that the delegated authority is being misused. It is further recommended that the new instrument of control be entitled “Declaration of Allied and German Eights in Berlin”, or something similar rather than “Statement of Principles”, in order to break with past procedure as much as possible.

1. The term Allied Kommandatura Berlin was used by the three Western occupation powers in 1951 as a designation for their commandants in Berlin and should not be confused with the quadripartite Berlin Kommandatura which had not met since 1948.
2. Regarding the Brussels decisions on contractual relations, made by the Foreign Ministers of the United States, the United Kingdom and France, see the U.S. Delegation’s minutes of the meeting, held December 19, 1950, Foreign Relations. 1950, vol. iv, p. 803.
3. Not printed.
4. For the text of the Foreign Ministers decisions on Germany, see Foreign Relations, 1950, vol. iii, Document 37 (Final), September 19, 1950, p. 1286.
5. For the text of the Statement of Principles as amended by the First Instrument of Revision, see p. 1900.
6. Annex A, not printed; for the text of the Statement of Principles, see p. 1900.
7. Not printed; a copy of BK/AHC(51)37, “Matters in Respect to Which Berlin Requires Economic and Financial Support of the Federal Republic”, dated May 26, is in the CFM files, lot M–88, box 187, questions affecting Berlin.

8. Secret Minute 3 of the Charter of the Allied High Commission for Germany reads:

   “III. Agreed Minute on Controls in Berlin

   • 1. Upon the transfer of the exercise of Authority in the Western Zones from the respective Commanders-in-Chief to the High Commissioners, a corresponding transfer of authority win take place in regard to the Western Sectors of Berlin.
   • 2. Accordingly, as from the establishment of the High Commission, the Allied Commandants win act so far as practicable in accordance with the provisions of the Charter of the Allied High Commission and the Allied Kommandatura will function under the general direction of the Council of the High Commission and in a accordance with the provisions of the Agreement on Revised Internal Procedure in the Allied Kommandatura of 14th May 1949 and with the Statement of Principles governing the relationship between the Allied Kommandatura and Greater Berlin of the same date.
   • 3. The forces of occupation of the three Powers shall remain stationed in their respective sectors of the City of Berlin. Command of these forces and control of their related military establishments shall remain with the respective Commanders of the forces of occupation.
   • 4. The above shall not be held to preclude an arrangement whereby the functions of Allied Commandant and Member of the Allied Kommandatura as well as that of Commander of the troops in Berlin may be vested in the same person, who would be responsible to the Allied High Commission in his political capacity and to his military superior in his military capacity.” (762A.00/3–150, Basic Documents)
9. For the text of Appendix A, see Statement of Principles Governing the Relationship Between the Allied Kommandatura and Berlin, p. 1900.
10. Brackets appear in the source text.