Exclusive mandate

An exclusive mandate is a government's assertion of its legitimate authority over a certain territory, part of which another government controls with stable, de facto sovereignty. It is also known as a claim to sole representation or an exclusive authority claim. The concept was particularly important during the Cold War period when a number of states were divided on ideological grounds.

For nearly all of the 41 years that Germany was split into two countries, the Federal Republic of Germany (West Germany) claimed to be the sole legitimate successor to the German Reich that existed from 1871 to 1945. This claim was initially based solely on the government's mandate by virtue of free elections. To that end, it claimed Berlin, capital of united Germany from 1871 to 1945, as its capital, with the provisional capital in Bonn.

In a statement made before the Bundestag, German Chancellor Konrad Adenauer asserted this mandate as early as October 21, 1949, in response to the constitution of the German Democratic Republic (GDR) coming into effect. The Secretary of State Summit of the three western powers on September 18, 1950 in New York City, supported Chancellor Adenauer's claim.

When the Soviet Union proclaimed the sovereignty of the GDR, the West German Bundestag once again unanimously insisted that the Federal Republic was the sole legitimate representative of the German people. At the Treaties of Paris (Pariser Verträge), at which the Federal Republic of Germany was admitted into the North Atlantic Treaty Organization, the allied nations adopted the position which the three western allies had already confirmed at the Nine-Power Conference in London: that the Federal Republic had the exclusive right to act on behalf of the entire German people in matters of foreign policy. The western nations thereby recognized the Federal Republic as the only lawful government for Germany as a whole.

Aside from such considerations pertaining to international law, the reunification clause of the Basic Law suggested that international recognition of the German Democratic Republic was to be avoided, so as not to sever the constitutional mandate to a unified German state.

Until 1973, the Federal Republic took a strict line in claiming an exclusive mandate for all of Germany. Under the Hallstein Doctrine, the Federal Republic broke diplomatic relations with states that maintained diplomatic relations with the GDR, except for the Soviet Union. On different levels, such as in international sports, there were, however, a wide range of international cooperations which even led to unified German teams in six Olympic Games (three Winter and three Summer Games). Over time, especially after the election of a social-liberal coalition led by Willy Brandt in 1969, the exclusive mandate was softened, as it severely limited the Federal Republic's domestic and international autonomy. Starting in 1973, under the Ostpolitik policy, the Federal Republic took the line that the Democratic Republic was, de jure, a state within a single German nation which could also function legally within international law as a sovereign state, while reasserting that the Federal Republic was itself the sole legitimate representative of a continuing German Reich that remained otherwise without institutional organisation; thereby relinquishing any claim to be de jure the government of Germany as a whole outside of its own boundaries until such time as the two German states might be reunified.

Judicially, an exclusive mandate had been claimed to have arisen from the proposition that the German state as a whole had been preserved, that only one German state could legitimately exist, and that that one state was identical with the Federal Republic. The German Democratic Republic was therefore held to be an illegally constituted Soviet puppet state occupying territory that rightfully belonged to the Federal Republic, thus lacking autonomy. An alternate view held that the GDR was in a state of civil war with the FRG government, and therefore could not be recognized as a state under international law. A third, the so-called "umbrella state" theory, entails the existence of two fragment states under the umbrella of a single German nation that had been formed in 1871 and which had never actually been annihilated; this theory arose in the late 1960s and was maintained in a ruling of the Federal Constitutional Court of Germany of 31 July 1973 upholding the "Basic Treaty" by which relations between East and West Germany were normalised. Crucially, although the Constitutional Court reaffirmed the proposition that the pre-1945 German state had been preserved and organised, albeit partially, solely in the institutions of the Federal Republic, the Justices explicitly rejected the proposition that this would imply an exclusive mandate; "...identity does not require exclusivity".

With the admission of both German states to the United Nations in 1973, matters regarding the exclusive mandate were no longer relevant. Nevertheless, the Constitutional Court maintained that the Federal Republic continued to bear a responsibility for the whole German people; albeit that this responsibility could only be discharged in respect of Germans physically present in its territory or within its jurisdiction. Accordingly, the Federal Republic of Germany did not recognize a distinct citizenship for the German Democratic Republic; if East Germans presented themselves in West Germany, or at a West German embassy in a third country, they could obtain a West German passport. Generally, the Federal Republic considered East Germans to be German citizens under the old 1871–1945 all-German citizenship (i.e. Bundesbürger, citizens of West Germany). Refugees who fled from the GDR were therefore not deported, and automatically qualified for West German citizenship.