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Introduction
The eighteenth anniversary of German re-unification was marked on 3 October 2008. The years following re-unification have witnessed the collapse of the Soviet Union, regional conflicts in the Balkans and Caucasus, the North Atlantic Treaty Organization's (NATO) eastward expansion, and, most recently, the growing confidence and resurgence of the Russian Federation as a military power. In light of U.S. military basing initiatives in Poland and the Czech Republic as well as NATO "air policing" in the Baltic States, U.S. military planners must be cognizant of the international legal framework in which U.S. Forces operate in the united Germany. Especially important are the treaty-based constraints on stationing, deployment, temporary presence, and transit of military forces in and through Berlin and the new German States.
The Treaty
The Treaty on the Final Settlement with Respect to Germany (so-called "Two-plus-Four" Treaty), signed in Moscow on 12 September 1990 by the Federal Republic of Germany (FRG), the German Democratic Republic, the French Republic, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, represents one of the great successes of twentieth century diplomacy.1 It ended the artificial division of Germany and Berlin, provided for a complete withdrawal of Soviet Forces from Germany, and terminated all remaining Four-Power (quadripartite) rights and responsibilities for Berlin and Germany as a whole.2 It created the basis for the emergence of a united, democratic, and sovereign FRG and permitted the united Germany to remain in NATO.3
Despite its overwhelmingly positive aspects, the Two-plus-Four Treaty contains several prohibitions that affect U.S. Forces' operations and freedom of movement in Berlin and the new German States.4 These treaty prohibitions are found in the last sentence of paragraph 3 of Article 5, "Foreign armed forces and nuclear weapons or their carriers will not be stationed in that part of Germany [i.e., Berlin and the new German States] or deployed there."5
These prohibitions on the stationing and deployment of non-German forces in eastern Germany proved quite controversial.6 On the eve of the treaty signing ceremony, the British Delegation insisted upon an explicit guarantee to be permitted to conduct military maneuvers in the new German States.7 This resulted in a crisis that threatened to delay the treaty's...