The issue of the downfall or continuation, and thereby the legal status of the German Reich, arose out of the military occupation of Nazi Germany by the allied forces in 1945; it became current once again when the German Democratic Republic (East Germany) reunified with the Federal Republic of Germany (West Germany) in 1990.
Determination of legal status was relevant, for instance, to resolve the issue of whether the 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 international 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, 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 reorganization 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 the individual, in this regard sovereign, German federal states (Bundesländer) was required, or if constituent power (pouvoir constituant) lay with the entirety of the German People as it was spread across the individual German states.
The issue of the legal status of Germany from an international legal perspective is to be determined according to the three-element theory of state law by Georg Jellinek, by which a state is recognizable internationally if it fulfills the three characteristics of territory, people, and government.
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During National Socialism, state power was personified more and more within the Führer and Reich Chancellor (Führer und Reichskanzler), Adolf Hitler, who, after August 2, 1934 simultaneously served as President and Head of Government.[1] Following his suicide on April 30, 1945, even the successor regime appointed in his political testament resigned during the cabinet's May 2 session. The succeeding administration, the so-called Flensburg government, appointed by Admiral Karl Dönitz (who was also appointed Reich President in Hitler's testament), and led by Reich Secretary Count Lutz Graf Schwerin von Krosigk, no longer possessed any de facto governmental authority.
This was followed by the unconditional surrender of the German Wehrmacht on May 7 in Rheims 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.[2]
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 ("Berliner Erklärung"), the assumption of "governmental authority" in Germany (or, more appropriately, "supreme authority", since the allied forces not only took control of government, but the state as a whole). 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."[3]
Nonetheless, on June 5, the German state officially ceased to exist. Governmental 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 territory of the German Reich in its boundaries of December 31, 1937, was divided into four occupational zones and the joint occupational zone of Greater Berlin was submitted to the administration of the Allied Command ("Alliierte Kommandantur"), which in turn was governed by 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 federal and municipal administrative bodies ("Verwaltungsträger") commenced. While municipalities continued operating nearly without any interruption, and by 1946 local elections had taken 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 (constituent power) were elected and from 1946 onward, state constitutions became effective, in most cases following referendums.[4]
Cessation of hostilities between the United States and Germany was proclaimed on 13 December 1946 by United States President Truman.[5]
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.[6] (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.[7]
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".[8]
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".[9] 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)[10][11][12][13][14][15] The state of war between Germany and the Soviet Union was ended in early 1955.[16]
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 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. Germany, however, remains without the normal protection of the UN charter along Italy and Japan due to articles 53 and 107 in the charter, which has not been amended since the end of the war.[17]