f ti- FOR RM USE ONLY CA... 10378 NO I-~ • ..i (•, -..,. A=. -:..s SUBJECT: TR X'""5 :.. ;; ,_,.,...-::;:;; :::F ,:.:; AR>v1Y c.-to r,.;'7 }. -:: -~ if 1,..s_ _y ~,.,..JI , -I fi/1 tl ,'I._ - Tie enclosed legal-historical study documents the unrestricted nature --Allied rights with respect to local flights. Heretofore, provisions of :'.-.e Four-Pm:er Berlin Flight Rules (inter alici, paragraph 3(c) of DAIR-P(45)71 3~cond Revise) have given rise to varying subjective interpretations such ~s that contained in the referenced airgram. The study prepared by the -~fice o~ the Legal Advisor delves into the negotiating record on the local ~light issue and, thus, provides a sound basis for interpreting the meaning = the la~guage used in pa ragraph 3(c) of the Flight Rules. · The main conclusions of the legal paper are: HANDLING INDICA fOR BONN, BERLIN PARIS, LONDON, !>10SCOW, NNR SHAPE FOR POLAD, US ELEMENT LIVE OAK, CIN:::EUR FOR B:)LAD, USAFE WIESBADEN Department of State DATE: Al lied Right to Local Flights in the Berlin Control Zone Bonn 1 s A-780 of October 27, 1964. I 1. The Allies' right to make local flights wilhin the Berlin Control Zone is an integral and essential part of their right to unrestricted air access to Berlin. 2. It is clear from the 1947 and 1948 negotiating re~ord that paragraph 3(c) of the Flight Rules dJes not limit local flights by Allied aircraft to their national sectors; mere hortatory language was used in that p~ragraph. 3. Therefore, Soviet permission is not required for United States local flights over East Berlin or that portion of East Germany within the Berlin Control Zone. RUSK r::nclosure: Legal Study of Allied Rights r~ Loe a 1 Flights 7--b·co _J .bONFIBEtffIA:Mi. -ORM I'!• DS-323 4 'GER :5::::-; --:·lward/L :EL"' :ATDowney/ j Clearances: L/EL~ -~-r. Reis GEN .. :-1r. >luller • CA-1037 , • g. 2. Enclosure 1, page 1 to A-to Bonn Le_el Studv of Allied Rights re Local Flighti in the Bc-lin Control Zone I n Ge"!era l The Allied right of unrestricted air access to Berlin arises from the de:eet of the German Reich and the joint occupation of Germany by the Allies in accordance with the Declarat i on Regarding the Defeat of Germany of June 5, 1945. Almost six months later, on November 22, 1945, the Allied Control Authority Ai r Directorate* submitted a report t o the Co~rdinating Committee calling a ttention to the necessity of providing adequate safety of Berlin flights. "l. Because of the increasing number of flights between the Greater Berlin area and the respective occupied zones of the four Allied Powers in Germany and because their flights must often be under taKen in conditions of poor visibility or at night, involving risk of collisions , there is a real need to ensure safety of flights over the occupied zones and the Greater Berli11 area by means of a system of ~ ir corridors under strict rules of flight for all aircraft using t he corridors." (CORC/P(45)170) LEmphasis added.] To achieve flight safety, the Air Directorate requested the Coordinating Co::nmitlee to route Berlin air traffic to certain corridors. The specific request. stated: "( 1) To conf inn the pro22_sals for the establishment of air corridors West of Berlin as follows: BEFUN-H.AHBURG, BERLIN-BUCKEBURG, BERLit'-FRANKFURT ON MAIN, each twenty English uiles wide. Fli£ht over these ro tes (corridors) will be conducted wilhout revious notice bei ng e:iv n, by aircraft of the nations governing Gern1.2ny. Emphasis added. J "(2) To instruct the Air Directorate to compile rules of flight and means of safeguarding flights along the corridors stated in para. (1) above." The Coordinating Committee approved the Air Directorate1 s report on November 27, 1945, and agreed to submit it to the Control Council for con­firmation. (CORC/M(45)23.) The report was submitted to the Control Council as document CONL/P(45)63. On November 30, at its thirteenth meeting, the Control Council: * Tne relevant military government organization (the Allied Control Authority) consisted of: (1) the Control Council--~omposed of the four Commanders-in-Chief o= the Zcnes--the highest level of joint executive authority in Germany; (2) the Coor dinating Committee, composed of one representative of each of the four Co:rmanders-in-Chief; (3) the Air Directorate, one of twelve functional control divisions under the Coordinating Committee; and (4) the Air Committee, one of various special subordinate committees under the jurisdiction of the Air Directorate. c 1 31 • • 3. Er1closure l, page 2 to A-to Bonn "(a) approved the establishment of three air corridors from Berlin to the Wes tern zones as defj ned in co:~L/P( 45) 63. II (COJL/M ( 45) 13.) The ~llied right to unrestricted air access to Berlin was not put in question by a~y of these decisions. As quoted above, the proposal for the establish­men~ o: the corridors affirmed that: "Flight over :..hese routes (corridors) vil: oe conducted without _erevious notice being given, by aircraft of the na!:ic...ns governing Germany." Allied air access rights did not spring from these November 1945 decisions; the Allies were exercising their right of access months before. Such rights arose from the defeat of and assumption of supreme authority over Germany; the decisions of the Control Council described above merely channeled the exercise of existing rights by Allied aircraft for safety purposes into certain routes. At the December 8, 1945, meeting of the Air Directorate, the Directorate decided: "a -to note the decisions of the Control Council and to comply therewith. 11 b -to instruct the Committee on Aviation to prepare for submission at the next meeting of the Air Directora~e the rules of flig_h! and requirements for navigational aids for airplanes using the approved corridors." (DAIR/M(45)17.) The Air Director~te discussed the report of the CoITu~ittee on Aviation (DAIR/P(45)71) at a meeting on December 18th and approved it, subject to certcin minor amendments (DAIR/M(45)18). The Second Revise* of DAIR/P(45)71, dateG October 22, 1946, still controls as to flight rules. Fligh~ Rules The stated object of the Flight Rules approved by the Air Directorate is to "ensure the maximum safety in flight of all aircraft £lying in corridors and in the Berlin Control Zone under all conditions." (DAIR/P(45)71 Second Revise.) The Berlin Control Zone (BCZ) refers to the area controlled by the Berlin Air Safety Center (BASC), established by the Flight Rules document. The BCZ is defined in paragraph 3a of the Flight Rules as: "· •. the air space between ground level and 10,000 feet (3000 meters) within a radium of 20 miles (32 kilometers) from the Allied Control Authority Building in which is established the Berlin Air Safety Center (B.A.S.C.)." * A chronology of the evolution of the Flight Rules from DAIR/P(45)71 to DAIR/P(45)71 Second Revise appears as an Appendix. • -CONFIDEtffIAL • c 10.. 78, Enclosure 1, page 3 to A-to Bonn Paragra~hs 3b and 3c provide: "b. The Berlin Control Zone is a zone of free flight for all ai~craft en~ering the zone to land on the Berlin airfields or tnking off to depart theref rorn. "c. It is desirable thet, wherever possible, local flights (testing, training, etc.) be executed above the rIBtional sectors. However, if necessary they may be executed above the remainder of th~ Control Zone, subject to normal clearance by the Berlin Air Sa:ety Center." The estc~lishrnent of a zone to administer air safety for Berlin--the BCZ--was ~ ~2tural develop~ent from the "real need to ensure safety of flights over !:he occ:.ipied zon•=s and the Greater Berlin Area ... •11 (see CORC/P(45)170, above). Th~ S2:e:y Rules did not attempt to create a right uf flight within Berlin se.~e.ra~e. from the existing right of flight "over the occupied zones and the G:-eater 3erlin Area." Reference to "local flights" within the BCZ--as distinct from flights wi.thi1 t~1~ R~Z as par-t of flights to and from 3erlin--first appears in the F_ight ?_:es document. The right to engage in local flights within the i~Sa of :~e BCZ is an i~tegral and essential segment of the Allied right to :;~:-es:..r:ct-::d air. access lo Berlin. The right to local flight was not created •· ?-rc:2-::-aph 3c o: the Flight Rules document. Wh::~ then, w~re "local flig~-.ts" the subject of the special treatment in ~:ie ?L;~t Rules? The rt::asoning may have been as follm\•s: aircraft sci.fety co:1::-ol is best r.1aintain ·d v:hen the aircraft is above its respective national s-s: :or. J•1e. to the landing pat terns of £lights be tween the Wes tern Zones and :.r.e 3e:::iin airfi·:lds, operations over only one national sector would be nearly · .p.)ssii Le. (lt \·:ould have been pointless, therefore, to include mention of ::he.: t;pe of flight operation in paragraph 3b oi: the Flight Rules.) It would oe appr priate to separate--for the administration of flight safety--local :1..:.;h:.s :rom the Berlin-Western Zone flights, and to note in paragraph 3c the 'es.:.~ab..:.lity of local flights being made over respective national sectors. It. rr;~:.-be :0r this reason that local flights received separate treatment in the Flight R:.iles. The right o~ unrestricted local flight within the BCZ could not be and was not diminished by pe.ragraph 3c cf the Flight Rules. The phrase, ''subject to normel clearance", in that paragraph contains no element of decision, c :-:::-ol or permission by any authority other than the one whose aircraft makes :::i.e :tig~t. F rthermore, merely hortatory language was used in paragraph 3c-­"l: is C:esirable that, wherever possible ...." It is immaterial whether the United States chooses to exercise this right wi:~ helicopters instead of fixed-wing aircraft. None of the documents dealing w~t~ the Allied right of unrestricted air 3~cess attempt to distinguish the type o: aircraft used. ~'!JEN11..u.L ' CA·l 7 • • • Enclosure 1, pag to A-to B nn ?~actice since 1945 indjcat8s that the United States has repeatedly and :-c,_-..:_-i::1:-IT'.ad~ local flights \·:ithin the Berlin Control Zo-ie, including th S:. ·;i~: Sec tor. ~~i::~~=i::~~s Proposed bv the Soviet s I"1ere were at least two occasions Hhen the Soviets attempted to limit ~-li€:= 2ir rights by proposing 2mendments to DAIR/P(45)71, Second Revise. ::..'."'1 tf.€: J:.rne 26, 19·~7 meeting of the Air Directorate, th'= Soviet Delegate cc.-.?le..i.:t:;d about "contravention" of flight rules because the British had ~z~~ a training flight in the co:.ridors . The Soviet Delegate states: "The rules of flight for aircraft flying in the Berlin corridors 2,d in the Berlin Control Zone stipulate that training flights for c:. ·:rcrews are prohibited (Dh.IR/P(4.5)71, 2nd Revise, Paragraph 3, sub­p2r2graph (c) ) . " (DOCS/?-1( 47) 14.) T~e ::~ectorate decided to invite the Soviet Delegate to submit the matter to ::.e ;.i.:-Co1unittee for study. Tne Soviets then submitted to the Air Co~mittee a paper proposing amend­se~:s :o DAIR/P(45)71, Second Revise. DOCS/AIR/P(47)16. One of the proposed c:-::e:.::d:-::ents would have altered paragraph 3(c) to read: "Local flights (testing, training and practice flights) may be carried out only over the national sectors and in ca ses of absolute ~~cessity these flights may be carried out over sectors of the other ?8·,..·c;rs provided that permission is given by the Commander of the c.p?ropri2te Zone. Testin5, training and practice flights in the e:s:ablished air corridors are prohibited." (DOCS/AIR/P(47)16.) Ti:s 2uendment would have made the right to carry out local flights over other nc.':io::c.1 sectors co:itingent up-:m absolute necessity and pennission of the c??!:"O?!:"iate Zo:-ie Commander. (Paragraph 3(c) of DAIR/P(45)71, Second Revise, coes ~ot limit local flights to certain purposes; testing and training ar2 n~:e:d paren:hetically as illustrative of local flights. That other purposes ~,·2 =-=-con: emplated can be seen by the use of 11 etc. 11 after the two types 1isted. The S0viet amendment also would ha re deleted "etc." and specified three types of ~lights, thereby attempting to limit local flights to certain purposes.) At the September 8, 1947 meeting of the Air Committee the So1iet Delegate reoor~ed that he had submitted his paper because he wished to clarify the exis:ing Flight Rules to safeguard flight safety. (D:GE~,IE:\TS OF FLIGHT RULES. 11 Tne ame~dments to the Flight Rules proposed by the Soviets demons trate :~e Soviet attempt to limit the right to unrestricted local flights wit hin :~e 3~rlin Control Zone as r2flected in paragraph 3(c) of DAIR/P(45)71, Second ?~·~ise . l.:.:achment: Appendix. L/EUR -Mr. Reis L/~ ~:ATDowney :mmp -€{).'i'TDl!NTIA"L'" • • CA-1 378, . s. Enclosure 1, page 7 to A-to Bonn. APPE:\DIX Copies of D;..IR/P( ~.5 ) 71 or i :: s First Revise have not been 1ocat ed. The poi nt is so~ewha t acc.demic, ho~ever, since in O~tober of 1946, the Air Directorate decided that the Second Revise should be the only do~ument relating to Flight Rules. The followi ng is a chronology--as accurate as possible with t he documents at he.:-id--of .the progression of the Flight Rules document to its S~cond Revise. Dece8~er 18, 1945 Januc. ry 8, 1946 ;.pril 3, 1946 ila./ 17, l 9L.6 August 6, 1946' A.rgust 13, 1946 Air Directorate approved DAIR/P(45)71 and made minor amendments. [ DAIR/M( 45) 18.] Air Directorate approved the document with the e.r:tendments and signed DAIR/P( 45) 71 Revise. [DAIR/M( 46) 2. ] Air Co~mittee reported to Air Directorate that existing flight rules excellent, but r2commended that B.A.S.C. Controllers submit recomrrendations for the establishment 6: 11.:.irfield Traffic Zones" around each Berlin airfield. -_D.f... IR IP( 46) 63. l J Air Co~mittee recommended to Air Directorate the pro­po~e.ls by B. A.s.c: Controllers for aerodrome traffic zc~es (presently paragraph 4 of Flight Rules). Thi s recom~endation was ap?roved by Air Directorate on ~·:2y 28, 19~6. =DAIR/P(46)78. ] J..i.r Committee reported o'.1 B.A.S.C. recommendations re altitude limits, airfield traffic and the radius of 3CZ. Part of the Report stated: "(2) LOCAL FLIGHTS IN THE BERLIN CONTROL ZONE. 11.~.il aircraft flying in the Berlin Control Zone, at a height of less than 3,008 meters and within a radius of 20 miles from the A.C.A. Building, must be reported before take-off to the B.A.S.C. Controllers." =DAIR/P( 46) 90 Revise.] Disagreement in Air Directorate over the above report. Soviets proposed a new draft. Dec~sion to submit the w~t:>le question to Air Committee. ._DAIR/M(46)21.] -eo c IDENTTA.L Septe~ber 20, 1946 September 25, 1946 September 26, 19~6 October 7, 1946 c -103 , .9. Enclosure 1, page 8 to A-to Bonn ~ir Co~~i:::~e s~~~~~te~ report to Air Direcloratc, p ... ~suc.nt to :its c.o:::>··e decision. The Report r >comm!..!nded: "~a) That tne paper Dc.IR/P(46)78 be amended to include t~o ajditio~al airfield traffic z0nes, Sch~ne~alde a~d Elsthal. " ( b) Thc. t t ':! E: C o m:n i t tee inst ruc t the C on ­trollers of the B.A.S.C. to study the necessity for :ree flights in the Berlin ~ontrol Zone £07 report to the Committee." .. DA IR I PC 4 6 ) l 2 2 . _ ~~~Committee sub~itted report to Air Directorate. R·;port notc-d th:i.:: agreement coald not be reached re w~ether prior notification or prior authorization to B.A.S.C. is required for ~lights ~nside the BCZ. Report r=c8~~ended Directorate decide . LDAIR /P(46)134. ] ;..ir Directora:.e disc~ssed the ab:)Ve report. "General rutsevalov stated he had studied the paper in great d~:ail and had co~e to the conclusion that aircraft of a~l four ~llies did require a Zone, 20 miles in radius, in order to co1tend with difficulties in approach and le. nd i ng. ~ ~ there: ore ,~.de the f on.owing proposals: ­(~) th8t t~e Berlin Control Zone should be co'1sidered as a zone of free ~light onli for the purpose of landing 0·1 or taki:ig off from the Berlin airfields. That all flights for any other p~rpose should be made over the respective :·atio'1al Sectors." Tne Directorate decided to re.=er the matter to the Deputies for study. [DAIR/M(46(24. ] The Directorate Dep~ties discussed: 11 ~1) Freedom of Flight for aircraft entering the Berlin Co'1trol Zone to land, or taking off to depart therefrom. 11 (2) Freedom of Flight for all other aircraft (testing flights, training flights, etc.). "(3) Safety of Flight in the corridors. "After discussion of the various delegates 1 po~nts of view, the Deputies agreed to submit the following proposals to the Air Directorate: ~ lf)ENT IAL• • C 103· 10 , kg~ . " E'1c losure 1, page 9 to t -t:o Bonn. 11 1. The Berlin Control Zone is a zone of free flight for all aircraft entering the Zone to land on the Berlin Airfields or Laking off to depart therefrom. "II. It is desirable that wherever possible local flights (testing, training, etc.) be executed above the national sectors. However, if necessary, th~y may be execu­ted above the remainder of the control zone, su~ject to nornal clearance by the Berlin Air Safety Centre, "IV. The above-rne:-itioned rules will not be embodied in a new paper. They will be added to paper DAIR/P(45)71 Revise, which, f1>!.-the sake of simplicity must be the only psper regulating flights in the aerial corridors of Germany and in the Berlin Control Zone." ~D.MIR/P( 46) 139. J Air Directorate decid1d to forward the Deputies 1 report to the Aviation Committee, instructing it to in:lude its information in Dl.IR/P(45)71 Revise, "which will be. the only existing document . 11 [DAIR/MC 46) 25.] o~:o' er 22, 1946 Aviation Committee subr.1itted the revision to Air D::.rectorate. -DAIR/P( L6) 144.] 0: ~o:ier 25, 1946 Air Directorate approved the Co~mittee paper as D~IR/P(45)71 Second Revise and decided to send it to the Military Missions accredited with the Control Council. =DAIRfi·!(46)26. =