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.

Overview

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.

A related question was whether the creation of the Basic Law for the Federal Republic of Germany (Grundgesetz) required merely the consent of each and every federal state (Bundesland), or whether constituent power (pouvoir constituant) lay with the entirety of the German people as it was spread across the German states.

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 the former German Reich no longer existed; and so, as the 'highest authority' for Germany they could 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. International conventions constraining the behaviour of occupying powers in wartime - the Hague Regulations of Land Warfare and the Geneva Conventions - did not apply. 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, when a fully constituted German government should eventually come into being, it would resume the identity and rights of the former German Reich. ^[1]

Surrender of the Wehrmacht

Generalfeldmarschall Wilhelm Keitel signing the instrument of Surrender in Berlin.

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).^[2] 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 a pollitical administration to Leading Minister Lutz Graf Schwerin von Krosigk; however, the consequent Flensburg Government did not possess any de facto governmental authority, 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 representatives of the 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.^[3] Nevertheless, as all central authority and power within Germany had already been extinguished de facto at the death of Adolf Hitler, 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..." Consequently subsequent historians have treated 8 May 1945 as the date on which Nazi Germany ceased to exist.

Since April 31, 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.^[1] Those neutral countries that had been nominated as Protecting powers in respect of Germany and the Allies under the Geneva Conventions, were requested by the State Department to hand all embassy records and German state property in their trust over to the western Allies. As the Protecting powers complied fully with the Allied demands, 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.^[4]

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."

Occupied Germany within 1937 borders

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 German Reich within the boundaries of December 31 1937, 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 were subject 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. 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.^[5]

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. 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 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, 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.

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.^[6] 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.^[7] (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.^[8]

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".^[9] 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".^[10] 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)^{[11][12][13][14][15][16]} The state of war between Germany and the Soviet Union was ended in early 1955.^[17] 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^[18] and 107^[19] 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,^[20] and they were formally recognized as obsolete by a UN General Assembly resolution^[21] in 1995.^[22]

See also

• German Question
• Debellatio
• 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)

References

External links

• 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.