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U.S. State Department Memorandum (December 20, 1958)

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The Soviet position that one party to a multilateral agreement which is declaratory of existing rights can denounce that agreement and thus unilaterally relieve itself of its obligations thereunder and void such rights is untenable. In the absence of agreement by the other parties to terminate the agreement, or in the absence of a specified duration in the agreement itself, the question of termination must be justified in terms of international law.

International law does not recognize any right of unilateral denunciation under such circumstances.

In order to place its position on this matter in correct perspective, the United States wishes to note that while, as stated above, there was no agreement or limitation on the duration of the allied occupation of Germany, the duration of which it was recognized would depend on the length of time it took to accomplish the purposes of the occupation and might be many years, the United States recognized an obligation of the Allied Governments under international law to reach a peace settlement with Germany and not to prolong the occupation of Germany unnecessarily. It is believed that the public record of efforts on the part of the Western powers to reach agreement with the Soviet Government on the terms of such a peace settlement are well known and speak for themselves.

(1) At the first meeting of the Second Session of the Council of Foreign Ministers (Paris, 1946) Secretary of State Byrnes suggested that a special commission be appointed to consider a German peace treaty. On May 15, 1946, he proposed the appointment of special deputies to prepare a draft peace settlement for Germany which the Council could submit to a peace conference to be convened on November 12, 1946.

(2) At the Third Council of Foreign Ministers Session (New York, 1946) Secretary Byrnes insisted that the Council should immediately appoint its deputies for Germany and that these deputies should explore the problem prior to the Moscow session.

(3) The proposed peace treaty was debated at the Moscow Council of Foreign Ministers in March 1947; at London in 1947; at Paris in 1949. The position consistently taken by the United States in favor of a final peace settlement with Germany is thus a matter of public record.

(4) At the Paris session of the deputies of the Council of Foreign Ministers, efforts were made from March 5 to June 22, 1951, without success just to agree on the agenda for a meeting to consider the German question.

The fact of the matter was that during the period of the debates between the Soviet Union and the Western occupation powers between 1946 and 1951 the Soviet Union had initiated a system of government in its zone of control based on armed force and police state methods. The Western Allied Powers could not accept the individuals put forward as representing East Germany as other than instruments of the Soviet Union. The Western powers accordingly have insisted on German reunification based on free elections as a prerequisite for negotiation of a peace treaty with Germany. The Soviet Union has insisted upon acceptance of its hand-picked East German representatives as having an equal voice with the freely elected representatives of West Germany in any reunification. Thus, this Soviet rejection of democratic principles has vitiated efforts to reach agreement on the peace settlement with Germany envisaged during the war and during the immediate postwar period.

The fact remains that the Western powers have supported and support now the right of Germany to have a final peace settlement and the termination of the occupation period. It is the position of the United States that, being thus ready in good faith to bring the occupation period to a close by legitimate means, there can be no legal or moral doubt of the right of the United States to maintain its right of occupation in Berlin and its corollary right of access thereto and that efforts of the Soviet Union to assail and interfere with those rights are in violation of international law.

Source: Statement by the Department of State, on Legal Aspects of the Berlin Situation, December 20, 1958; reprinted in Documents on Germany, 1944-1959: Background Documents on Germany, 1944-1959, and a Chronology of Political Developments affecting Berlin, 1945-1956. Washington, DC: General Printing Office, 1959, pp. 336-47.

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