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Some Legal Aspects of the Berlin Crisis

Published online by Cambridge University Press:  28 March 2017

Quincy Wright
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Editorial Comment
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American Journal of International Law , Volume 55 , Issue 4 , October 1961 , pp. 959 - 965
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Copyright © American Society of International Law 1961

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References

1 The Bulletin, Vol. 9, No. 24, p. 1 (Press and Information Office of the German Federal Government, June 27, 1961).

2 In its reply on July 17, 1961, to the Soviet aide-memoire of June 4, 1961, the United States said that it “fully concurs with the Soviet Government that a peace settlement is long overdue.” It would appear, however, that a de facto peace settlement exists. The issue concerns the expediency of its revision (New York Times, July 19, 1961, p. 4). In fact, West Germany (the German Federal Republic) had in July, 1961, been recognized by most states, including the Soviet Union, for nearly a decade, and East Germany (the Peoples’ Republic of Germany) had been recognized by the Communist states for almost as long. In its reply on July 12, 1961, to the Soviet memorandum of Feb. 17, 1961, the West German Government said: “... only a Government based on the right of self-determination of the German people is entitled to conclude a peace treaty for Germany.” (News from the German Embassy, July 14, 1961, p. 2.) However, the “contracts” of May 26, 1952, between the German Federal ■Republic and the Western Powers (49 A.J.I.L. Supp. 57 ff. (1955)), the “protocols” between that Republic and fourteen other states, and its adherence to the North Atlantic Treaty by which it became officially independent at noon on May 5, 1955 (ibid. 126, 146), and subsequently entered into regular diplomatic relations with most states, including the Soviet Union, seem to have constituted a “peace treaty” for all practical purposes. This de facto situation would not be affected by certain formal reservations of occupation status in these instruments qualifying full sovereignty. See Joseph W. Bishop, Jr., “The Contractual Agreements with the Federal Republic of Germany,” 49 ibid. 125 (1955); Herbert W. Briggs, “The Final Act of the London Conference on Germany,” ibid. 148; Josef L. Kunz, “The London and Paris Agreements on West Germany,” ibid. 210. The status of Berlin as occupied territory has, however, continued in spite of acts looking toward incorporation of West Berlin as a Land of West Germany and establishment of East Berlin as the capital of East Germany. (Below, notes 11, 13.) Furthermore, the arrangements concluded between the Soviet Union, Poland and other Communist states with the Peoples ‘ Republic of Germany, the Soviet announcement on March 26, 1954, that the Republic was a sovereign state, the joint statement of Prime Ministers Khrushchev and Grotewohl on July 17, 1956, that German unification could be accomplished only by direct negotiations between the two Germanies, and the treaty of March 12, 1957, recognizing the “sovereignty” of the German Peoples’ Republic but permitting the Soviet Union to maintain troops there because of “the rebirth of militarism in the German Federal Republic” (52 ibid. 210 (1958)), seem to have constituted for all practical purposes a peace treaty between the Soviet Union and East Germany. See Wright, Quincy, “The Status of Germany and the Peace Proclamation,” 46 A.J.I.L, 299 ff. (1952)Google Scholar.

3 Wright, Quiney, “The Stimson Note,” 26 A.J.I.L. 342 ff. (1932)Google Scholar.

4 Lauterpacht, Hersch, Recognition in International Law (Cambridge University Press, 1948)Google Scholar.

5 36 A.J.I.L. Supp. 191 (1942).

6 39 A.J.I.L. Supp. 245 (1945).

7 See note 2 above.

8 In its note of July 17, 1961, the United States relied mainly on the principle of self-determination, as had West Germany in its note of July 12, 1961 (note 2 above). The U. S. note referred to the “directive” of the Summit Conference of 1955 “recognizing their (the four Powers’) common responsibility for the settlement of the German question and the re-unification of Germany ... by means of free elections ... in eouformity with the national interests of the German people” and to commitments by the Soviet Union, in the United Nations Charter and “numerous statements,” to the principle of self-determination. Since the East German regime is “not representative” of the people, but is a “creation and extension” of Soviet authority, it “cannot be regarded as an independent sovereign state” and a “peace treaty” with it “could ■ have no validity in international law, nor could it affect in any way whatsoever the rights of the Western powers.” Texts of Soviet aide-memoire of June 4, 1961, and of U. S. reply of July 17, 1961, in 45 Dept. of State Bulletin 224 ff. (1961).

9 The Western argument that their rights in West Berlin flow from conquest (note 11 below) seems unfortunate in view of the Stimson Doctrine (note 3 above) and the Atlantic Charter, by which the parties renounced “aggrandizement” as a result of the war. The Geneva Protocol of 1924 recognized that even the defenders should acquire no territorial right from their hostilities. It has been argued that the preamble of the Kellogg-Briand Pact, depriving the violator of the benefits of the Pact, would justify the defenders in appropriating the aggressor’s territory by right of conquest. The benefits of the Pact, however, were only freedom from war. The aggressor could be attacked to prevent his acquisition of fruits of aggression, but not to gain acquisitions by the defenders. This seems to flow from the Charter principles of “sovereign equality” of states and abstention from “the threat or use of force against the territorial integrity and political independence of any state.” This construction, however, would not deny the right of the defenders to occupy temporarily the aggressor’s territory after his surrender, as provided in the German surrender agreements of May, 1945. See Wright, Quincy, “The Meaning of the Pact of Paris,” 27 A.J.I.L. 39 ff. (1933)Google Scholar.

10 The United States has contended that these transfers will not be definitive until a treaty of peace is made with all of Germany, but the occupation of these territories authorized by the Armistice agreements has continued for sixteen years and is regarded as established by Eusssia and Poland.

11 In its note of July 17, 1961, the United States based its rights in West Berlin on “the unconditional surrender of Nazi Germany and were not granted by, nor negotiated with the Soviet Union, as acknowledged by Khrushchev in his address of June 15, 1961, and as affirmed in the London Protocol of Sept. 12, 1944, foreseeing German surrender (54 A.J.I.L. 739 (1960)), and the agreements of May 1, 1945, establishing occupation arrangements, and of June 20, 1949, assuring communications after the air lift. In his statement of July 19, 1961, President Kennedy said “the continued presence in West Berlin of the United States, the United Kingdom, ami France is by clear legal right, arising from war, acknowledged in many agreements signed by the Soviet Union, and strongly supported by the overwhelming majority of the people of that city.” 45 Dept. of State Bulletin 223 (1961).

12 40 Dept. of State Bulletin 81 (1959).

13 The surrender and pre-surrender agreements provided for a special status for the whole of Berlin under four-Power control (note 11 above). Consequently Soviet acquiescence in the incorporation of East Berlin in East Germany (differing from the Western position which has not permitted West Germany to incorporate West Berlin) can only be justified on the theory that the Armistice agreements concerning four Power co-operation have lapsed because of non-observance and changed circumstances. For full discussion of the status of the two Berlins in law and fact, see Smith, Bruce L. R., “The Governance of Berlin,” International Conciliation, No. 525 (November, 1959)Google Scholar.

14 Rau, B. N., India’s Constitution in the Making 426 ff. (Bombay: Orient Longmans, 1960)Google Scholar, makes a detailed review of text-writers on this subject. He finds that Kent, Halleck, Phillimore, and Calvo support a theory of general succession but apparently with the intention that it apply only to “vested rights.” Pradier-Fodéré and Keith, on the other hand, find that there is no succession to treaty rights or obligations. Most writers, including Vattel, Huber, Eivier, Westlake, Wheaton, Hyde, Hall, Smith, Oppenheim, and McNair, explicitly distinguish different types of treaty provisions, generally holding that only those that establish “real” rights in the territory bind the successor.

15 In a note to Finland of December, 1920, the British Government declared: “In the ease of a new state being formed out of part of an old state there is no succession by the new state to the treaties of the old one, though the obligations of the old state in relation to such matters as the navigation of rivers, which are in the nature of servitude, would normally pass to the new state. Consequently there are no treaties in existence between Finland and this country.” McNair, Law of Treaties 412 (1938), quoted in Eau, op. cit. 91, 434.

16 McNair, op. cii. 427; Rau, op. cit. 433.

17 Rau writes: “The more modern books make the test of succession whether or not the treaties are locally connected to the territory of the new state.” Op. cit. 430.

18 Right of Passage case, Portugal v. India, [I960] I.C.J. Rep. 6; 54 A.J.I.L. 673 (1960).

19 The United States, however, has not claimed that the West Indian bases it acquired from Great Britain in 1941 constitute a servitude which the West Indian Federation must respect when it becomes independent, but has acknowledged the right of the latter “to form its own alliances and to conclude such agreements as it thought fit regarding military bases on its soil.” Negotiations with West Indian authorities have provided for U. S. bases of more restricted area. 44 Dept. of State Bulletin 822 (1960); 45 ibid. 42, 350 (1961).