Legal status of Germany
The issue of the downfall or continuation, and thereby the legal status of the
German Reich, arose out of the military occupationof Nazi Germanyby 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, whereby "reunification" is inaccurate in terms of the German Reich, and the Reich term " accession" "(Beitritt)" would be more appropriate.
Determination of legal status was relevant, for instance, to resolve the issue of whether the Federal Republic would be the
successor stateof 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 Peopleas it was spread across the individual German states Fact|date=June 2007.
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 recognizeable internationally if it fulfills the three characteristics of territory, people, and government.
Development after the surrender of the German Wehrmacht
National Socialism, state power was personified more and more within the Führer and Reich Chancellor "(Führer und Reichskanzler)", Adolf Hitler, who, after August 2nd, 1934 simultaneously served as President and Head of Government. [http://www.documentarchiv.de/ns/stobrhpt.html Gesetz über das Staatsoberhaupt des Deutschen Reichs vom 1. August 1934] .] Following his suicide on April 30th, 1945, even the successor regime appointed in his political testament resigned during the cabinet's May 2nd 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 factogovernmental authority".
This was followed by the
unconditional surrenderof the German Wehrmacht on May 7th in Rheims and on May 8th 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.Frotscher/Pieroth: "Verfassungsgeschichte", Rn 641.]
On June 5th, 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." [http://www.jstor.org/sici?sici=0002-9300(194507)39%3A3%3C171%3AUSBUDR%3E2.0.CO%3B2-G]
Governmental authority was from then on carried out by the
Allied Control Counciluntil its de facto dissolution in 1948. International legitimationhereto resulted from Allied occupational supremacy. The territory of the German Reich in its boundaries of December 31st, 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 3st 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 Protocolof December 12th, 1944; extension to France did not take place until the Yalta Conferencein February of 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 referendumsSchweitzer: "Staatsrecht III", 8. Aufl., Rn 616; Frotscher/Pieroth: "Verfassungsgeschichte", Rn 689 ff.] .
Bonn-Paris conventions(1952, came into force in 1955)
Declaration of the Government of the U.S.S.R. Concerning the Granting of Sovereignty to the German Democratic Republic(1954)
Four Power Agreement on Berlin(1971)
Basic Treaty (1972)
Two Plus Four Agreement(Treaty on the Final Settlement with Respect to Germany)
* [http://www.oefre.unibe.ch/law/dfr/bv036001.html 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.
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