Confusion Compounded

India's Prime Minister Pandit Nehru is not the first man to get bogged down in the morass of pacts, protocols, aides-memoire, memorandums and verbal understandings that spell out Western rights in Berlin. Nehru is merely the latest prominent person to take a reading--and to add confusion to the crisis. Rising in New Delhi's Parliament during a foreign policy debate last week, Nehru gratuitously declared that as far as he and his experts could make it out, the East Germans were legally justified in closing their sector frontier. Raising the question of Western access rights to Berlin, he suggested that the Russians had every right to cut them off, since they were based on a verbal agreement "secured by the Western powers . . . not as a right but as a concession from the Soviet authorities."

Nehru's legal experts had obviously failed to tell him the whole story. The background, to be sure, was murky and fragmented, for that was the way things were in the chaotic months when World War II ended and every day was marked by hundreds of hurried decisions that affected the peace. The U.S. approach to the potential problems of postwar Germany left the Russians in a position to stir up trouble at will. But there are no grounds for questioning the West's legal rights.

Academic Mistake. Through much of 1944, U.S. Ambassador to Britain John Winant pleaded with Washington to plan ahead, to insist on detailed provisions for Western access to Berlin as part of the occupation-zone system being engineered by EAC--the European Advisory Commission (the U.S., Britain, Russia), to which Winant was U.S. delegate. But the War Department opposed a specific agreement on Berlin access routes, argued that it would be best to leave the problem to the soldiers on the scene. When General Lucius Clay, acting as General Eisenhower's representative, finally met with Soviet General Georgy Zhukov in June 1945 to work out an agreement for highways, air corridors, rail and canal routes into Berlin, he decided not to put the final decision in writing. Clay's reason was that he did not want to imply that he had waived free access by any route. Wrote Clay later in his book, Decision in Germany: "I must admit that we did not then fully realize that the requirement of unanimous consent would enable a Soviet veto in the Allied Control Council to block all of our future efforts ... I think now that I was mistaken in not at this time making free access to Berlin a condition to our withdrawal into 'our occupation zone . . ."

The mistake was academic; the Russians later proved themselves just as capable of breaking written pacts as they were of violating verbal agreements. Lucius Clay's 1945 deal with Zhukov involved a right of conquest. It was perfectly valid under international law, and it still is. Although the Russians do not advertise the fact today, bits and pieces of the agreement have been confirmed time after time ever since. Nehru was not on hand to watch, but on Nov. 30, 1945, the Allied Control Council (U.S., Russia. Britain. France) agreed formally and in writing to unlimited Western use of the three air corridors through which the West flies today--not "temporarily," as last week's Soviet note suggested, but indefinitely, i.e., until a unified Germany was re-created and re-established in the community of nations. For 15 years Russia has accepted and repeatedly confirmed the use of these corridors, not only by Western military planes but also by the commercial airliners of Pan American, British European Airways and Air France. Not even during the 1948-49 airlift did the Russians dare challenge their rights to be there.

Second Thoughts. Nehru's legal advisers decided that the 1949 communique after the Foreign Ministers Conference of that year "diluted" Western claims. That communique did indeed fail to mention the word "access," but it had this to say on the general subject of Berlin: "The occupation authorities . . . shall consult together in Berlin on a quadripartite basis [for the purpose of] facilitation of the movement of persons and goods . . . between the western zones and the eastern zone and between Berlin and the zones." It went on to add, "The [Four Powers] agree . . . as regards the movement of persons and goods and communications between the eastern zone and the western zones and between the zones and Berlin, and also in regard to transit, [that] the occupation authorities . . . will have an obligation to take the measures necessary to ensure the normal functioning and utilization of rail, water and road transport for such movement of persons and goods . . ."

By week's end Nehru had second thoughts about the whole affair. After a long talk with able U.S. Ambassador John Kenneth Galbraith. who argued the case with persuasive eloquence. Nehru agreed that Western access to Berlin should not be impaired in any way. For others who wanted to make up their own minds about the tangled details, the State Department in Washington wearily put out a new background pamphlet to keep the record straight.

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