Legal status of Germany
After World War II, determination of legal status was relevant, for instance, to resolve the issue of whether the post-1949 Federal Republic of Germany (West Germany) would be the successor state of the pre-1945 German Reich – with all the implications (at the time uncodified) of state succession, such as the continuation of treaties – or if, according to international law, it would be identical with the prior German Reich.
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.
[3] 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 – found in the Fourth Geneva Convention – 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.
[5] During the time of the Holy Roman Empire (962-1806) and the German Confederation (1815-1848, 1850-1866), the German-speaking lands of Europe was divided into many small states, with this fragmentation being known as Kleinstaaterei.
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.
"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.
All pre-war international treaties to which the German Reich had been a party were renounced in respect of Germany from 1945 (subject to specific continuation agreements negotiated through the ACC).
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; pending a final peace settlement.
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'.
[15] 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.
Consequently, any establishment of formal institutions or agencies that might eventually restore unified German sovereignty was initially stalled by French objections.
Subsequently, as Cold War antagonisms grew, the same institutions came to be largely nullified by disputes between the Western Allies and the Soviet Union.
The United States and the United Kingdom therefore came round to the French view that a unified German state partially subject to Soviet authority could not be allowed to emerge while the Soviet Bloc remained in eastern Europe, and so the three Western Allies resolved upon the foundation of a West German federation consisting of the territories in their three zones of occupation.
Officially announced on 12 May, 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 (western) Allied permission, specific laws could be rejected, and the military governors could take over all governmental power in times of crisis.
On 22 November 1949, Chancellor Konrad Adenauer signed the Petersberg Agreement, under which it was recognized that the sovereignty of West Germany remained limited.
[2]: 13 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.
This conflict came to a head over the claim from members of the Nazi-era judiciary, civil service, and academic professorships, for a right to reinstatement into their former jobs in the new Federal Republic.
When a law was enacted in 1951, providing limited redress in employment and partial back-payment of pension entitlements, it was challenged by many former public servants and their cases were strongly supported by the Federal Court of Justice (FCJ).
The substance of the FCJ support for these cases rested on the proposition that the employment rights of public officials had been protected from political interference as a fundamental principle of the German state, albeit that this principle had been grossly violated in the Nazi period; and hence since the German state, now freed from Nazism, had continued to exist after 1945, so too had the employment of its public officials – notwithstanding the actions of the Occupying Powers in temporarily removing them.
For public officials to be denied reinstatement, without judicial process establishing individual complicity in the illegal actions of the Nazi regime, amounted to collective punishment; and hence was unconstitutional.
In a judgement of 1953, the Federal Constitutional Court (FCC) absolutely rejected all these arguments, reasoning that all civil services commissions had been extinguished on 8 May 1945.
[31] As the FCC reasoned, the capitulation in 1945, as well as the seizure of power by the National Socialist Party, was not merely a change in the legal form of the state (which would have left the legal status of civil servants untouched), but rather, that the institutional organisation of the German civil state had already ceased to exist, following the power grab of the National Socialist Party.
In this, the Federal Constitutional Court maintained an absolute difference in the respective legal status of civil and military authority under the Nazi regime; the military organisation of the German people as a nation under arms, was entirely distinct from the civil organisation of the German people as a state under the rule of law.
Notwithstanding that all members of the armed services had also been required to swear their own version of the Hitler oath, their military status as German soldiers, sailors, and airmen had remained valid right up to 8 May 1945.
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).
In the event the unification of 1990 was initiated under the quicker process of Article 23, by which existing German states could declare their accession to the Basic Law of the Federal Republic, through the decision of free representative democratic institutions.
On 23 August 1990, the Volkskammer of the GDR 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.
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.
The cases were eventually heard before the Grand Chamber of the European Court of Human Rights in 2005, which found consistently in favour of the post-1990 actions of the Federal Republic – hence rejecting arguments that claimed that the sovereignty of the Federal Republic maintained that of an unbroken but dormant post-war German Reich – declaring that the four Allied Powers had, in the years 1945–1949, exercised "an occupation sui generis following a war and unconditional capitulation, which conferred powers of 'sovereignty' on the occupying forces".
