Article 1 of the New York agreement of May 4, 1949, was implemented by Order Number 56 of the Soviet Military Government and Commander in Chief of the Soviet occupation forces in Germany, dated May 9, 1949. The order provides that the regulations which were in effect prior to 1 March 1948 concerning communications between Berlin and the Western zones were reestablished. Specifically, paragraph 4 of the Soviet Order provides, “The procedure in effect prior to 1 March 1948 for military and civilian personnel of the British, American, and French occupation forces permitting them to cross the demarcation line at the control points of Marienborn and Nowawes without special passes and requiring passes authorized by the SMA staff for all other control points is to be reestablished.”
The foregoing historical summary establishes beyond question that the rights of the United States in Germany and in Berlin do not depend in any respect upon the sufferance or acquiescence of the Soviet Union. Those rights derive from the total defeat of the Third Reich and the subsequent assumption of supreme authority in Germany. This defeat and assumption of authority were carried out as joint undertakings in which the participants were deemed to have equal standing. The rights of each occupying power exist independently and underlie the series of agreements which specify the areas and the methods in which those rights are to be exercised. From this fact two important consequences are derived.
In the first place, the specific rights which flow from the Agreement on Zones of Occupation and the Status of Berlin do not vary in either kind or degree. The right of each power to be in occupation of Berlin is of the same standing as the right of each power to be in occupation of its zone. Further, the rights of the three Western powers to free access to Berlin as an essential corollary of their right of occupation there is of the same stature as the right of occupation itself. The Soviet Union did not bestow upon the Western powers rights of access to Berlin. It accepted its zone of occupation subject to those rights of access. If this were not true and the doctrine of joint and equal rights is not applicable, then, for example, the United States would now be free to require the Soviet Union to withdraw from that portion of the Soviet Zone originally occupied by American forces and to assume control of the area.
In the second place, inasmuch as the rights of occupation and of access do not stem from the Soviet Union, the Soviets are without any authority to repeal those rights by denunciation of agreements or by purported transfer of control over them to third parties. The Soviet Union cannot affect the rights by declaring agreements null and void because the rights exist independently of the Soviet Union. The Soviet Union cannot affect the rights by declaring them subject to the sovereignty it claims to have bestowed upon its puppet regime in East Germany, because, again, the rights remain in being irrespective of any act of the Soviets. Whatever relationship the East German regime may have vis-a-vis the Soviets, it cannot acquire a power in the Soviet Zone which the Soviets are powerless to give. The foregoing discussion is, of course, without reference to the legality of the purported Soviet action in denouncing its solemn commitments, which is discussed in the succeeding section.
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