Legal status of Germany
Encyclopedia
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
.
, who, after August 2, 1934 simultaneously served as President and Head of Government. 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.
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:
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.
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 referendum
s.
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 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.
Military occupation
Military occupation occurs when the control and authority over a territory passes to a hostile army. The territory then becomes occupied territory.-Military occupation and the laws of war:...
of Nazi Germany
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
by the allied forces
Allies
In everyday English usage, allies are people, groups, or nations that have joined together in an association for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out between them...
in 1945; it became current once again when the German Democratic Republic
German Democratic Republic
The German Democratic Republic , informally called East Germany by West Germany and other countries, was a socialist state established in 1949 in the Soviet zone of occupied Germany, including East Berlin of the Allied-occupied capital city...
(East Germany) reunified
German reunification
German reunification was the process in 1990 in which the German Democratic Republic joined the Federal Republic of Germany , and when Berlin reunited into a single city, as provided by its then Grundgesetz constitution Article 23. The start of this process is commonly referred by Germans as die...
with the Federal Republic of Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
(West Germany
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
) 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
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
itself, merely a reorganization
Organization
An organization is a social group which distributes tasks for a collective goal. The word itself is derived from the Greek word organon, itself derived from the better-known word ergon - as we know `organ` - and it means a compartment for a particular job.There are a variety of legal types of...
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
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
(Grundgesetz) merely the consent of the individual, in this regard sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
, German federal states
States of Germany
Germany is made up of sixteen which are partly sovereign constituent states of the Federal Republic of Germany. Land literally translates as "country", and constitutionally speaking, they are constituent countries...
(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
Georg Jellinek
Georg Jellinek was an Austrian public lawyer. Along with Hans Kelsen and the Hungarian Felix Somlo he belonged to the group of Austrian Legal Positivists and was considered to be "the exponent of public law in Austria“.-Early life:From 1867, Jellinek studied law, history of art and philosophy at...
, by which a state is recognizable internationally if it fulfills the three characteristics of territory, people
People
People is a plurality of human beings or other beings possessing enough qualities constituting personhood. It has two usages:* as the plural of person or a group of people People is a plurality of human beings or other beings possessing enough qualities constituting personhood. It has two usages:*...
, and government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
.
Development after the surrender of the German Wehrmacht
During National Socialism, state power was personified more and more within the Führer and Reich Chancellor (Führer und Reichskanzler), Adolf HitlerAdolf Hitler
Adolf Hitler was an Austrian-born German politician and the leader of the National Socialist German Workers Party , commonly referred to as the Nazi Party). He was Chancellor of Germany from 1933 to 1945, and head of state from 1934 to 1945...
, who, after August 2, 1934 simultaneously served as President and Head of Government. Following his suicide on April 30, 1945, even the successor regime appointed in his political testament
Last will and testament of Adolf Hitler
The last will and testament of Adolf Hitler was dictated by Hitler to his secretary Traudl Junge in his Berlin Führerbunker on April 29, 1945, the day he and Eva Braun married. They committed suicide the next day , two days before the surrender of Berlin to the Soviets on May 2, and just over a...
resigned during the cabinet's May 2 session. The succeeding administration, the so-called Flensburg government
Flensburg government
The Flensburg Government , also known as the Flensburg Cabinet and the Dönitz Government , was the short-lived administration that attempted to rule the Third Reich during most of May 1945 at the end of World War II in Europe...
, appointed by Admiral Karl Dönitz
Karl Dönitz
Karl Dönitz was a German naval commander during World War II. He started his career in the German Navy during World War I. In 1918, while he was in command of , the submarine was sunk by British forces and Dönitz was taken prisoner...
(who was also appointed Reich President in Hitler's testament), and led by Reich Secretary Count Lutz Graf Schwerin von Krosigk
Lutz Graf Schwerin von Krosigk
Johann Ludwig Graf Schwerin von Krosigk, born Johann Ludwig von Krosigk and known as Lutz von Krosigk was a German jurist and senior government official, who served during May of 1945 in the historically unique position of Leading Minister of the German Reich, the equivalent of a Chancellorship in...
, no longer possessed any de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
governmental authority.
This was followed by the unconditional surrender
Unconditional surrender
Unconditional surrender is a surrender without conditions, in which no guarantees are given to the surrendering party. In modern times unconditional surrenders most often include guarantees provided by international law. Announcing that only unconditional surrender is acceptable puts psychological...
of the German Wehrmacht
Wehrmacht
The Wehrmacht – from , to defend and , the might/power) were the unified armed forces of Nazi Germany from 1935 to 1945. It consisted of the Heer , the Kriegsmarine and the Luftwaffe .-Origin and use of the term:...
on May 7 in Rheims
Reims
Reims , a city in the Champagne-Ardenne region of France, lies east-northeast of Paris. Founded by the Gauls, it became a major city during the period of the Roman Empire....
and on May 8 in Berlin-Karlshorst
Karlshorst
Karlshorst is a locality in the borough of Lichtenberg in Berlin. It houses a harness racing track and the Hochschule für Technik und Wirtschaft Berlin , the largest University of Applied Sciences in Berlin, and the German-Russian Museum Berlin-Karlshorst.-History:Established in 1895 as the...
(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
Allies
In everyday English usage, allies are people, groups, or nations that have joined together in an association for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out between them...
announced, by way of the Berlin Declaration
Berlin Declaration (1945)
By way of the Berlin Declaration of June 5th, 1945, , the victors of World War II assumed...
("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
Annexation
Annexation is the de jure incorporation of some territory into another geo-political entity . Usually, it is implied that the territory and population being annexed is the smaller, more peripheral, and weaker of the two merging entities, barring physical size...
, 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."
Nonetheless, on June 5, the German state officially ceased to exist. Governmental authority was from then on carried out by the Allied Control Council
Allied Control Council
The Allied Control Council or Allied Control Authority, known in the German language as the Alliierter Kontrollrat and also referred to as the Four Powers , was a military occupation governing body of the Allied Occupation Zones in Germany after the end of World War II in Europe...
until its de facto dissolution in 1948. International legitimation
Legitimation
Legitimation or legitimization is the act of providing legitimacy. Legitimation in the social sciences refers to the process whereby an act, process, or ideology becomes legitimate by its attachment to norms and values within in given society...
hereto resulted from Allied
Allies
In everyday English usage, allies are people, groups, or nations that have joined together in an association for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out between them...
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
Greater Berlin Act
The Greater Berlin Act , in full the Law Regarding the Reconstruction of the New Local Authority of Berlin , was a law passed by the Prussian government in 1920 that greatly expanded the size of the German capital of Berlin.-History:...
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 ProtocolLondon Protocol-1814:On June 21, 1814, a secret convention between the Great Powers: United Kingdom of Great Britain and Ireland, Prussia, Austria, and Russia awarded the territory of current Belgium and the Netherlands to William I of the Netherlands, then "Sovereign Prince" of the United Netherlands...
of December 12th, 1944; extension to France did not take place until the Yalta ConferenceYalta ConferenceThe Yalta Conference, sometimes called the Crimea Conference and codenamed the Argonaut Conference, held February 4–11, 1945, was the wartime meeting of the heads of government of the United States, the United Kingdom, and the Soviet Union, represented by President Franklin D...
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
Allies
In everyday English usage, allies are people, groups, or nations that have joined together in an association for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out between them...
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 referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
s.
State of war with Germany
Cessation of hostilities between the United States and Germany was proclaimed on 13 December 1946 by United States President 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
Petersberg agreement
The Petersberg Agreement is an international treaty that extended the rights of the Federal Government of Germany vis-a-vis the occupying forces of Britain, France, and the United States, and is viewed as the first major step of Federal Republic of Germany towards sovereignty...
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
West Germany
West Germany is the common English, but not official, name for the Federal Republic of Germany or FRG in the period between its creation in May 1949 to German reunification on 3 October 1990....
's position in the Cold War
Cold War
The Cold War was the continuing state from roughly 1946 to 1991 of political conflict, military tension, proxy wars, and economic competition between the Communist World—primarily the Soviet Union and its satellite states and allies—and the powers of the Western world, primarily the United States...
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
West Berlin
West Berlin was a political exclave that existed between 1949 and 1990. It comprised the western regions of Berlin, which were bordered by East Berlin and parts of East Germany. West Berlin consisted of the American, British, and French occupation sectors, which had been established in 1945...
.
Under the terms of the Treaty on the Final Settlement with Respect to Germany
Treaty on the Final Settlement with Respect to Germany
The Treaty on the Final Settlement With Respect to Germany, was negotiated in 1990 between the Federal Republic of Germany and the German Democratic Republic , and the Four Powers which occupied Germany at the end of World War II in Europe: France, the Soviet Union, the United Kingdom, and the...
, the Four Powers renounced all rights they formerly held in Germany, including Berlin
Berlin
Berlin is the capital city of Germany and is one of the 16 states of Germany. With a population of 3.45 million people, Berlin is Germany's largest city. It is the second most populous city proper and the seventh most populous urban area in the European Union...
. As a result, Germany became fully sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
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.
See also
- DebellatioDebellatioDebellatio designates the end of a war caused by complete destruction of a hostile state....
- Occupation statuteOccupation statuteThe Occupation Statute of Germany of April 10, 1949 specified the roles and responsibilities of the newly created German government and the Allied High Commission in West Germany...
(1949) - Petersberg AgreementPetersberg agreementThe Petersberg Agreement is an international treaty that extended the rights of the Federal Government of Germany vis-a-vis the occupying forces of Britain, France, and the United States, and is viewed as the first major step of Federal Republic of Germany towards sovereignty...
(1949) - Bonn–Paris conventions (1952, came into force in 1955)
- Four Power Agreement on BerlinFour Power Agreement on BerlinThe Four Power Agreement on Berlin also known as the Berlin Agreement or the Quadripartite Agreement on Berlin was agreed on 3 September 1971 by the four wartime allied powers, represented by their Ambassadors...
(1971) - Basic Treaty (1972)Basic Treaty (1972)The Basic Treaty is the short-hand name for the Treaty concerning the basis of relations between the Federal Republic of Germany and the German Democratic Republic...
- Two Plus Four Agreement (Treaty on the Final Settlement with Respect to Germany)
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.