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

In response to Khrushchev’s speech of November 10, 1958, and the Soviet Union’s Berlin Ultimatum of November 27, 1958, which demanded the Allies’ withdrawal from Berlin, the U.S. State Department issued a detailed memorandum on the history of Allied occupation agreements since 1943. The memo made clear that the presence of the three Western powers in West Berlin and their rights as Allied Control Powers was not derived from the Potsdam Agreement of August 1945. Thus, Khrushchev’s claim that the Western Allies had violated this agreement could not serve as the basis for Soviet demands for their withdrawal. The memo also stated that the Soviet Union could not unilaterally cancel the occupation agreements, which were binding under international law.

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Statement by the Department of State, on Legal Aspects of the Berlin Situation, December 20, 1958

[ . . . ]

The United States considers that the agreements denounced by the Soviet Union are in full force and effect, that the Soviet Union remains fully responsible for discharging the obligations which it assumed under the agreements, and that the attempts by the Soviet Union to undermine the rights of the United States to be in Berlin and to have access thereto are in violation of international law.

The legal dispute of the United States Government with the Soviet Government involves fundamental questions of international law. Among them are the respective rights acquired by the occupying authorities in Germany at the conclusion of World War II and the status of those rights pending a final peace settlement with Germany; the question whether a nation may unilaterally abrogate without cause international agreements to which it is a party in order to divest itself of responsibilities which it has voluntarily assumed; and what is the effect of a unilateral renunciation of jointly shared rights of military occupation by one of the occupiers.

During World War II the United States, the United Kingdom, and the Soviet Union, together with the forces of the Free French and of the other United Nations, formed a coalition of allied forces united in the common effort of defeating Nazi Germany. Several major international meetings were held between the heads of government of the Allied Powers at which the common objectives were outlined and plans for the securing of peace were mapped out.

The agreed communiqué of the Moscow Conference, held from October 19 to October 30, 1943, stated: The Conference agreed to set up machinery for ensuring the closest cooperation between the three Governments in the examination of European questions arising as the war develops. For this purpose the Conference decided to establish in London a European Advisory Commission to study these questions and to make joint recommendations to the three Governments.

The European Advisory Commission held its first meeting on January 14, 1944. Thereafter it discussed “European questions” including the anticipated surrender and occupation of Germany. The nature of the subsequent occupation of Germany and Greater Berlin is clearly reflected by the discussions held in the European Advisory Commission and the agreements concluded as a result of the discussions.

On February 18, 1944, the Soviet representative submitted a document entitled “Conditions of Surrender for Germany” for consideration of the Commission, article 15 of which revealed the thinking of the Soviet Government at that time in regard to the establishment of zones of occupation in Germany. Paragraph (d) of article 15 of the document proposed the following with regard to Berlin:

d): There shall be established around Berlin a 10/15 kilometer zone which shall be occupied jointly by the armed forces of the Union of Soviet Socialist Republics, the United Kingdom and the United States of America.

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