Legal status of Germany
The legal status of Germany concerns the issue of the downfall or continuation of the German nation state, i.e., the German Reich of the 1871 unification, after the military occupation of Nazi Germany by the Allied forces in 1945. It became current once again when the German Democratic Republic (East Germany) joined the Federal Republic of Germany (West Germany) in 1990.
After World War II, determination of legal status was relevant, for instance, to resolve the issue of whether the West German Federal Republic would be the successor state of the German Reich—with all at the time uncodified implications of state succession, such as the continuation of treaties—or if, according to international law, it would be identical with the German Reich. Further, determination of authority, for instance to assert or deny territorial claims, especially with respect to the former eastern territories, was dependent upon this determination of legal status.
The issue was also significant from a constitutional legal perspective: while in the case of the downfall of the German Reich, the Federal Republic would need to have reconstituted itself, merely a re-organization after overcoming the Nazi rule would have been necessary otherwise. Dependent upon this, consequently, was also the question of whether for the creation of the Basic Law for the Federal Republic of Germany (Grundgesetz) merely the consent of each and every—in this regard again sovereign—federal state (Bundesland) was required, or if constituent power (pouvoir constituant) lay with the entirety of the German People as it was spread across the German states.
The issue of the legal status of Germany from an international legal perspective prompted questions, as the Allied takeover was neither determined by the Hague Conventions nor could it be measured against the three-element theory of state law developed by the legal academic Georg Jellinek (1851–1911), whereafter a state qualifies as a subject of international law if it fulfills the three characteristics of territory, people, and government.
Surrender of the Wehrmacht
After the Machtergreifung of the Nazi Party in 1933, state power had been personified more and more within Reich Chancellor (Reichskanzler) Adolf Hitler, who upon the death of Reich President Paul von Hindenburg on 2 August 1934 simultaneously served as head of government and head of state (styled Führer and Reichskanzler). Following his suicide on April 30, 1945, the successor regime appointed in his political testament resigned during the cabinet's May 2 session. Grand admiral Karl Dönitz, appointed Reich President in Hitler's testament, gave the task of forming an acting government to Leading Minister Lutz Graf Schwerin von Krosigk, however, his so-called Flensburg Government no longer possessed any de facto governmental authority.
These incidents preceded the unconditional surrender of the German armed forces (Wehrmacht), signed by representatives of the High Command (Oberkommando der Wehrmacht) on May 7 in Reims and on May 8 in Berlin-Karlshorst (often incorrectly referred to as "Germany's surrender"), from which, due to its nature as a purely military capitulation, no legal consequences for the legal status of the German Reich arose.
On May 23, the Allies dissolved the Flensburg government and arrested its members. This created a legal vacuum that was only resolved on June 5, when the commanders-in-chief of the Allied forces announced, by way of the Berlin Declaration, the assumption of "supreme authority" in Germany, since the Allied forces not only took control of government, but of the state as a whole. However, an annexation, explicitly, did not take place:
"There is no central Government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country and compliance with the requirements of the victorious Powers. "
"The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority. The assumption, for the purposes stated above, of the said authority and powers does not effect the annexation of Germany."
State authority was from then on carried out by the Allied Control Council until its de facto dissolution in 1948. International legitimation hereto resulted from Allied occupational supremacy. The eastern territories of the German Reich in its boundaries of December 31, 1937, were assigned to Polish and Soviet administration; the remaining area was divided into four occupational zones and the joint occupational zone of the capital Berlin was submitted to the administration of an Allied Command (Alliierte Kommandantur), which in turn was subordinate to the Allied Control Council.
"For occupational purposes, Germany will be divided into three zones, within her borders of December 31st 1937, to each of which one of the three powers will be assigned, as well as a special zone for Berlin, which is governed by the joint occupation of the three powers" (London Protocol of December 12th, 1944; extension to France did not take place until the Yalta Conference in February 1945.)
Meanwhile, grassroots reconstruction of German public administration commenced. While municipal administrations (Gemeinden) had continued operating nearly without any interruption, and by 1946 local elections took place in all occupational zones, Germany's federal states located within the occupational zones of the western allies were once again assigned state governments between May 1945 and July 1947. In addition, state assemblies bearing constitutional authority were elected and from 1946 onward, state constitutions became effective, in most cases following referendums.
West and East Germany
After the Allied state-building attempts to implement an all-German administration had foundered on factionalism, the Western Allies resolved upon the foundation of a West German federation, established on 23 May 1949 with the promulgation of the Basic Law as it had been adopted by the Parliamentary Council and approved by the Western occupation forces. The Federal Republic created by the Basic Law became capable of acting upon the federal election held on August 14, the constitutive meeting of the Bundestag parliament on September 7, the investiture of the first Federal President, Theodor Heuss, on September 13, the appointment of Konrad Adenauer as the first Federal Chancellor on September 15 and the accession of the Federal Cabinet on September 20, 1949. In turn the Soviet Military Administration on October 7 implemented the People's Chamber (Volkskammer) parliament in the Soviet occupation zone and East Berlin, which passed the Constitution of East Germany, officially named "German Democratic Republic" (GDR). The Council of Ministers of the GDR assumed office on October 12, 1949.
On April 10, 1949, the Western Allies had drawn up the occupation statute and had it conveyed to the Parliamentary Council. Officially announced on May 12, it reserved a number of sovereign rights, like foreign policy and external trade, for the Allied authoritites. Any amendment to the West German Constitution was subject to Allied permission, specific laws could be rejected, and the military governors could take over all governmental power in times of crisis. Those reservations were to be executed by the Allied High Commission established on June 20 as the supreme state power. On November 22, 1949, Chancellor Konrad Adenauer signed the Petersberg Agreement, according to which it was recognized that the sovereignty of West Germany remained limited. The Agreement, however, extended the rights of the German Government vis-a-vis the powers provided for in the original version of the Occupation Statute.
State of war
Cessation of hostilities between the United States and Germany had been proclaimed on 13 December 1946 by United States President Harry S.Truman. End of state of war with Germany was granted by the U.S. Congress on 19 October 1951, after a request by President Truman on 9 July. Since German civilians were legally still considered enemy nationals for a long period this resulted in some peculiar effects, such as that marriages between white U.S. soldiers and white German women were not permitted until December 1946. (The U.S. army at the time still prohibited interracial marriages, so black soldiers had to wait until 1948). In January 1946 the Swedish Red Cross was permitted to send food to Germany, but earlier attempts to send food by relief agencies had been blocked by the US Treasury Department under the Trading with the Enemy Act 1917, and U.S. troops had been under orders not to share their food rations with German civilians.
In the Petersberg Agreement of November 22, 1949, it was noted that the West German government wanted an end to the state of war, but the request could not be granted. The U.S. state of war with Germany was being maintained for legal reasons, and though it was softened somewhat it was not suspended since "the U.S. wants to retain a legal basis for keeping a U.S. force in Western Germany". At a meeting for the Foreign Ministers of France, the United Kingdom, and the United States in New York from September 12 to December 19, 1950, it was stated that among other measures to strengthen West Germany's position in the Cold War that the western allies would "end by legislation the state of war with Germany". During 1951, many former Western Allies did end their state of war with Germany: Australia (9 July), Canada, Italy, New Zealand, The Netherlands (26 July), South Africa, and the United Kingdom (9 July) The state of war between Germany and the Soviet Union was ended in early 1955. Sovereignty of the Federal Republic of Germany was granted on May 5, 1955, by the formal end of the military occupation of its territory. Special rights were however maintained, e.g., vis-à-vis West Berlin.
Under the terms of the 1990 Treaty on the Final Settlement with Respect to Germany, the Four Powers renounced all rights they formerly held in Germany, including Berlin. As a result, Germany became fully sovereign on March 15, 1991. After Germany joined the United Nations, there had been disagreement as to whether articles 53 and 107 of the UN Charter, which named Germany as an "enemy state", still applied, but these articles became irrelevant when the Four Powers renounced their special rights in the 1990 treaty, and they were formally recognized as irrelevant by a UN General Assembly resolution in 1995.
- Occupation statute (1949)
- Petersberg Agreement (1949)
- Bonn–Paris conventions (1952, came into force in 1955)
- Four Power Agreement on Berlin (1971)
- Basic Treaty (1972)
- Two Plus Four Agreement (Treaty on the Final Settlement with Respect to Germany)
- Gesetz über das Staatsoberhaupt des Deutschen Reichs vom 1. August 1934.
- Frotscher/Pieroth: Verfassungsgeschichte, Rn 641.
- The American Journal of International Law, Vol. 39, No. 3 (Jul., 1945), pp. 171-178 JSTOR
- Schweitzer: Staatsrecht III, 8. Aufl., Rn 616; Frotscher/Pieroth: Verfassungsgeschichte, Rn 689 ff.
- Werner v. United States (188 F.2d 266), United States Court of Appeals Ninth Circuit, April 4, 1951. Website of Public.Resource.Org
- Dangerous Liaisons: The Anti-Fraternization Movement In The U.S. Occupation Zones Of Germany And Austria, 1945–1948 by Perry Biddiscombe, Journal of Social History 34.3 (2001) 611–647[dead link]
- Eugene Davidson, The death and life of Germany: an account of the American occupation. p. 136, 137.
- A Step Forward Time Magazine Monday, Nov. 28, 1949.
- Staff. Full text of "Britannica Book Of The Year 1951" Open-Access Text Archive. Retrieved 11 August 2008
- War's End Time Magazine, July 16, 1951
- Elihu Lauterpacht, C. J. Greenwood. International law reports. Volume 52, Cambridge University Press, 1979, ISBN 0-521-46397-1, p. 505.
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- Spreading Hesitation Time Magazine Monday, Feb. 07, 1955
- Articles 53
- Grewe, Wilhelm Georg; Byers, Michael (2000). The Epochs of International Law. translated by Michael Byers. Walter de Gruyter. p. 675. ISBN 9783110153392.
- United Nations (15 December 1995). "Resolutions adopted by the General Assembly at its 50th session: Resolution No. A/RES/50/52" (pdf). United Nations. p. 3. Retrieved 2012-05-17.
Recognizing that, having regard to the substantial changes that have taken place in the world, the "enemy State" clauses in Articles 53, 77 and 107 of the Charter of the United Nations have become obsolete, ...
- Dettke, Dieter (2009). Germany Says "No": The Iraq War and the Future of German Foreign and Security Policy. Woodrow Wilson Center Press. p. 27. ISBN 9780801894091.
- This article incorporates information from the revision as of 22 June 2007 of the equivalent article on the German Wikipedia.
- BVerfGE 36, 1 – East-West Basic Treaty, Judgement of the Second Senate at 31. Juli 1973 after a court session at 19. Juni 1973, Az. 2 BvF 1/73.