Legal status of Germany
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The legal status of Germany concerns the issue of the downfall or continuation of the German nation state, i.e., the German Reich created in 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 post-1949 West German Federal Republic would be the successor state of the pre-1945 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 1945 Potsdam Agreement had specified that a full peace treaty concluding World War II, including the exact delimitation of Germany's postwar boundaries, required to be "accepted by the Government of Germany when a government adequate for the purpose is established." The Federal Republic always maintained that no such government could be said to have been established until East and West Germany had been reunited within a free democratic state; but a range of opinions continued within West Germany over whether a unified state consisting of West Germany, East Germany and Berlin alone could be said to represent 'Germany as a whole' for this purpose. The key question being whether a Germany that remained bounded to the east by the Oder-Neisse Line could act as a 'united Germany' in signing a peace treaty, without qualification.
A related question arose from the Basic Law for the Federal Republic of Germany (Grundgesetz). As adopted by West Germany in 1949 as an interim constitution, the preamble looked forward explicitly to a future free and united German state; "The entire German people is called upon to accomplish, by free self-determination, the unity and freedom of Germany." The Basic Law potentially provided two routes for the establishment of a reborn and unified German state; either under Article 23 whereby 'other parts of Germany' over and above the named States of the Federal Republic (Bundesland) could subsequently apply for admission; or under Article 146 where constituent power (pouvoir constituant) could be exercised by elected representatives of the entirety of the German people in creating a new permanent constitution that would replace the Basic Law. Adoption of a constitution under Article 146 would have implied that the legal validity of a unified German State would rest on "a free decision by the German people" as a whole.
It is common ground that no effective national government of any sort existed in Germany in May 1945 following the surrender of the German High Command; and that all national military and civil authority and powers were thereon exercised by the four Allied Powers. The Allies then maintained that as the former German Reich no longer existed in fact; so, as the 'highest authority' for Germany, they were entitled to assume all sovereign powers without limitation of scope or duration and could legitimately impose whatever measures on the German people within German national territory as any government could legally do on its own people—including validly ceding parts of that territory and people to another country. They argued furthermore that international conventions constraining occupying powers in wartime from enforcing fundamental changes of governmental system, economic system or social institutions within the territory under their control—the Hague Regulations of Land Warfare and the Geneva Conventions—did not apply; and could not apply, as the termination of Nazi Germany and the total Denazification of German institutions and legal structures had been agreed by the Allied Powers as absolute moral imperatives. Consequently, the Potsdam Agreement envisaged that an eventual self-governing state would emerge from the wreckage of WWII covering 'Germany as a whole', reuniting Berlin and the four Allied control zones; but that this would derive its sovereignty solely from that being assumed by the Allied Powers, and its constitution would require the approval of all the Allies. From the 1950s onwards however, a school of German legal scholars developed the alternative view that the Allies had only taken custody of German sovereignty while the former German state had been rendered powerless to act; and that consequently, once a freely constituted German government had come into being in the form of the Federal Republic, it could resume the identity and legal status of the former German Reich.
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 as head of state (styled Führer and Reichskanzler). Furthermore, by the final months of the war, governmental functions at all levels within Nazi Germany had been assimilated into the apparatus of the Nazi Party. Following Hitler's 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 a political administration to Leading Minister Lutz Graf Schwerin von Krosigk; however, the consequent Flensburg Government did not possess any de facto central governmental authority within Germany, nor was it recognised by any Axis, Allied or neutral government.
These incidents preceded the unconditional surrender of the German armed forces (Wehrmacht), signed by nominated representatives of the three German armed services and of the military High Command (Oberkommando der Wehrmacht) on May 8 in Berlin-Karlshorst; from which, as it was a purely military capitulation, no direct consequences for the legal status of the German Reich arose. Nevertheless, as all central authority and power within Germany had already been extinguished de facto at the death of Adolf Hitler and as the perpetuation of Nazism in any form could not be countenanced, the surrender of all remaining military authority confirmed for the Allied Powers the total extinction of the former German state. "The unconditional surrender of Germany has thereby been effected...". Subsequent historians have treated 8 May 1945 as the date on which Nazi Germany ceased to exist.
Since April 30, the US State Department had been actively pressurising all neutral countries that had retained diplomatic relations with Germany to prepare to close down German embassies and hand over their archives and records to the embassies of the Western Allies; and some had done so even before May 8. However, as the military capitulation of the German High Command was taken as constituting the extinction of the German state and the assumption of all state authority by the Allied Powers, all embassies remaining in neutral countries were immediately ordered by the Western Allies to be closed down, their diplomatic staff recalled and their records taken over into one or another Allied embassy. Those neutral countries that had been nominated as protecting powers in respect of Germany and the Allies under the Geneva Conventions were notified that this function had now been terminated, and were requested by the State Department to hand all embassy records and German state property in their trust over to the western Allies. All the protecting powers complied fully with the Allied demands, formally breaking off diplomatic relations; consequently the German state ceased as a diplomatic entity on 8 May 1945.
On May 23, the Allies closed down the Flensburg administration and arrested its members. This formalised a legal vacuum that was only filled on June 5, when the commanders-in-chief of the four Allied Powers announced, in the Berlin Declaration, the assumption of "supreme authority" in Germany: the Allied forces not only took control of government, but also now assumed all the powers and legal authority of the German state as a whole. It was explicitly stated that this would not effect the annexation of Germany, although the four Powers asserted their authority, as the sole repository of German state power, to determine the future boundaries of German territory:
"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 unconditional surrender of Germany has thereby been effected, and Germany has become subject to such requirements as may now or hereafter be imposed upon her."
"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.
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, will hereafter determine the boundaries of Germany or any part thereof and the status of Germany or of any area at present being part of German territory."
State authority was from then on carried out by the Allied Control Council until its de facto dissolution in 1948. International legitimation resulted from Allied occupational supremacy. By virtue of the legitimacy asserted in the Berlin Declaration, the Allied Powers at the Potsdam Conference assigned the eastern territories of the former German Reich to Polish and Soviet administration. The remaining German territory was divided into four occupational zones, which along with the joint occupational zone of the capital Berlin would together constitute post-war 'Germany as a whole', and were subject to the administration of an Allied Command (Alliierte Kommandantur), which in turn was subordinate to the Allied Control Council. The western boundary of Poland, pending exact delimitation at an eventual Peace conference, was set at the Oder-Neisse line; all territories east of this being excluded from the Soviet zone of occupation, and hence from 'Germany as a whole'.
"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. municipal administrations (Gemeinden) had continued operating almost uninterrupted, 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.
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. However the end of the state of war with Germany was not confirmed by the U.S. Congress until 19 October 1951, after a request by President Truman on 9 July. Thus German civilians were legally still considered enemy nationals for a long period. This state of affairs had some peculiar results: for instance 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 by relief agencies to send food 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 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 of 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, 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. A military presence was also maintained until the full implementation, in 1994, of the Two Plus Four Treaty, signed in 1990.
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 obsolete by a UN General Assembly resolution in 1995.
West and East Germany
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After the Allied state-building attempts to implement an all-German administration had foundered on factionalism[clarification needed], the Western Allies resolved upon the foundation of a West German federation. This was 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 was empowered to act 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, such as foreign policy and external trade, to the three western Allied authorities. 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 of the three western allies, established on June 20 as the supreme state power. On November 22, 1949, Chancellor Konrad Adenauer signed the Petersberg Agreement, under which it was recognized that the sovereignty of West Germany remained limited. The Agreement, however, extended the rights of the German Government vis-à-vis the powers provided for in the original version of the Occupation Statute.
From the 1950s, the claim that there was a single continuing German Reich, and that in some sense the Federal Republic and the Federal Republic alone could represent that Reich, was adopted both by the Federal Government itself and by the Federal Constitutional Court. Initially, the 1949 constitution of the German Democratic Republic adopted a mirror image version of this claim; in being framed in anticipation of a future all-German constitution on its own political terms; but all references to a wider national German nation were removed in constitutional amendments in 1968 and 1974, and from that date the GDR maintained that from 1949 there had existed two entirely separate sovereign German states. The Federal Republic's Cold-war Allies supported its claims in part, as they acknowledged the Federal Republic as the sole legitimate democratically organised state within former German territory (the GDR being held to be a Soviet puppet state); but they did not accept the associated arguments for the pre-1945 Reich's continuing 'metaphysical' existence de jure within the organs of the Federal Republic. Subsequently, under the Ostpolitik, the Federal Republic in the early 1970s sought to end hostile relations with the countries of the Eastern Bloc, in the course of which it negotiated in 1972 a Basic Treaty with the GDR, recognising it as one of two German states within one German nation, and relinquishing any claim to de jure sovereign jurisdiction over those parts of Germany within the GDR. The Treaty was challenged in the Federal Constitutional Court, as apparently contradicting the overriding aspirations of the Basic Law for a unified German state; but the Treaty's legality was upheld by the court, heavily qualified by a reassertion of the claim that the German Reich continued to exist as an 'overall state' such that the duty to strive for future German unity could not be abandoned, albeit that without any institutional organs of itself the Reich was currently not capable of action. Nevertheless, the Western Allies took this as their cue to repudiate any support for the former claims of the Federal Republic to an exclusive mandate for Germany, all thereon recognising the GDR as a separate sovereign state and supporting the admission of both German states as equivalent members of the United Nations. In 1975 both German states participated in the Helsinki Final Act under which the existing post-war boundaries of Europe, including the separation of East and West Germany and the border between East Germany and Poland, were confirmed as legitimate in international law.
With the collapse of the German Democratic Republic in 1989, a reunification of Germany became inescapable; but this raised the question of how far the former actions and laws of the pre-1989 GDR should be accepted as actions of a legitimate German sovereign state. Some scholars argued for a revival of the theory that the sovereignty of the pre-1945 Reich had continued in existence; with the post-1949 Federal Republic as its sole interim representative (albeit only within the FRG boundaries). Which in turn was taken to imply the need for a new all-German constitution voted into effect by a unified nation under the terms of Article 146 of the Basic Law as the successor to the Federal Republic; with the further implication the actions of the former GDR might be nullified. In the event the unification of 1990 was initiated under Article 23, implicitly confirming both the continuing sovereign status of the Federal Republic under the Basic Law, and also the de facto and de jure legal capabilities of the political institutions of the former East Germany, both in declaring accession to the Basic Law and in having previously exercised government over its population and represented them in international law; subject to extensive qualification post-1990 in categorising the former GDR as an 'injustice state' whose population could claim redress (and be subject to penalties) in respect of actions before 1990 that had been inconsistent with the principles of Human Rights.
Hence, the Volkskammer of the GDR on 23 August 1990 declared the accession of East Germany to the Federal Republic under Article 23 of the Basic Law; and so initiated the process of reunification, to come into effect on 3 October 1990. Nevertheless the act of reunification itself (with its many specific terms and conditions; including the fundamental amendments to the Basic Law) was achieved constitutionally by the subsequent Unification Treaty of 31 August 1990; that is through a binding agreement between the former GDR and the Federal Republic now recognising each another as separate sovereign states in international law. This treaty was then voted into effect on 20 September 1990 by both the Volkskammer and the Bundestag by the constitutionally required two-thirds majorities; effecting on the one hand, the extinction of the GDR, and on the other, the agreed amendments to the Basic Law of the Federal Republic. Hence, although the GDR had nominally declared its accession the Federal Republic under Article 23 of the Basic Law, this did not imply its acceptance of the Basic Law as it then stood; but rather of the Basic Law as subsequently amended in line with the Unification Treaty and the Treaty of Final Settlement. These amendments had the effect of removing all those clauses by which the Federal Constitutional Court had formerly maintained the identity of the Federal Republic with the historic German Reich as an 'overall state', specifically including the very Article 23 that had provided the basis for the Volkskammer's ongoing declaration of accession.
Under the "Two Plus Four Treaty" both the Federal Republic and the GDR committed themselves and their unified continuation to the principle that their joint pre-1990 boundaries constituted the entire territory that could be claimed by a Government of Germany, and hence that there were no further lands outside those boundaries that were parts of Germany as a whole. The 1990 Basic Law amendments required for German reunification also explicitly excluded providing redress or restitution for actions undertaken under the authority of the Soviet Occupation 1945-1949 prior to the founding of the Federal Republic and the GDR. This raised a further complex of constitutional issues, as a number of private individuals challenged the constitutionality of the reunification treaties; specifically in respect of the levels of compensation and restitution offered to persons whose property had been expropriated between 1945 and 1949 under Soviet authority. These plaintiffs argued that, as the Federal Republic had historically claimed its sovereignty to be a continuation of that of the former governments of the German Reich, so post-1990, it should provide restitution in favour of expropriated property owners (or their heirs) for actions in the period when German sovereign power had been suspended. The cases were eventually heard before the Grand Chamber of the European Court of Human Rights in 2005; who found consistently in favour of the post-1990 actions of the Federal Republic - hence rejecting arguments from claimed continuity of the Federal Republic with the German Reich; declaring that the four Allied Powers had, in the years 1945 to 1949, exercised "an occupation sui generis following a war and unconditional capitulation, which conferred powers of 'sovereignty' on the occupying forces."
In the process of reunion, Article 23 of the Basic Law had been repealed, closing off the possibility that any further former parts of Germany might subsequently declare their accession to the Federal Republic; while Article 146 was amended to state explicitly that the territory of the newly unified republic then comprised the entirety of Germany as a whole; "This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect". This was confirmed in the 1990 rewording of the preamble; "Germans..have achieved the unity and freedom of Germany in free self-determination. This Basic Law thus applies to the entire German people."
From 1990 therefore, there could no constitutional basis for maintaining any future legal identity for Germany or the German people, other than in the unified territories and populations of East Germany, West Germany and Berlin.
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- Petersberg Agreement (1949)
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- Four Power Agreement on Berlin (1971)
- Basic Treaty (1972)
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