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Legal status of Germany
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Legal status of Germany
The legal status of Germany concerns the question of the extinction, or otherwise continuation according to the rules of state succession, of the German nation-state (i.e., the German Reich created in the 1871 unification) following the rise and downfall of Nazi Germany, and constitutional hiatus of the military occupation of Germany by the four Allied powers from 1945 to 1949. It became current once again when the German Democratic Republic (East Germany) joined the Federal Republic of Germany (West Germany) in 1990.
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, and thus carry forward its position as a subject of international law, or whether it would be a state established anew. This was important for such questions as whether and how Germany might pay war reparations, and also its ability to assert territorial claims against Poland and Russia in the future.
The 1945 Potsdam Agreement had specified that a full and final peace treaty concluding World War II, including the exact delimitation of Germany's postwar boundaries, would have to be "accepted by the Government of Germany when a government adequate for the purpose is established". The Federal Republic always maintained that no such government could be said to have been established until East and West Germany (and Berlin) were unified under a single democratic government (implicitly, the West German one); but some held that the combination of these three jurisdictions did not count as a unified Germany for the purpose of the peace treaty so long as its eastern boundary was the Oder–Neisse line, insofar as there was a substantial amount of pre-1938 German territory outside this reunified Germany.
The Basic Law for the Federal Republic of Germany (Grundgesetz) raised further questions. The Basic Law was intended as a provisional constitution to stand in the interim until a permanent, all-German constitution could be written. The name Grundesgetz was chosen in preference to the German for "Constitution", Verfassung, to avoid the sense of weight and permanence of the latter term. The Grundesgetz provided for two routes to an all-German state, either under Article 23 whereby "other parts of Germany", over and above the 11 then-extant States of the Federal Republic (Bundeslander) could be admitted to the federation without altering the constitutional setup. Alternatively, Article 146 provided for a constituent assembly elected across all of Germany (whatever this was held to mean) to draw up a new and theoretically permanent constitution (a true Verfassung) to replace the Grundesgetz. When German reunification was actually accomplished in 1990, the first route was chosen; the Grundesgetz remains in effect without major changes 35 years after reunification.
No functioning national government existed in Germany following the surrender of the German High Command in May 1945; all functions of government were carried out by, or under the supervision of, the Allied Powers. The Allies proposed that with the death of Adolf Hitler on 30 April 1945, given the nonfunctional state of the German government, the Reich had ceased to exist; thus, as the highest authority in Germany, the Allied Control Council became not just military occupiers but in fact the sovereign government of Germany, entitled to exercise all the powers of a sovereign state, including ceding territory to other states. Further, they argued that the Fourth Geneva Convention's restrictions on occupiers enacting fundamental changes in government or economic system did not apply; there was no government (and barely any economy) to change; moreover, denazification was considered an absolute and overriding moral imperative. Consequently, the Potsdam Agreement envisaged that, in due time, a German state would emerge from the wreckage of World War II, reuniting Berlin and the four Allied control zones; but that this state would derive its sovereignty not from the Reich, but from a transfer of authority by the Allied Control Council.
The principle of debellatio provided the legal framework for the Allies assuming sovereignty over Germany despite the absence of any instrument of surrender from the German government proper (as distinct from the armed forces). By the time the Allies obtained military surrender from Germany, no functional German government remained; thus, there was no instrument of surrender because there was nobody capable of issuing one. Inasmuch as the High Command was the last functional part of the German government, it served, pars pro toto, as the surrender of all of Germany. This was quite contrary to the surrender of Japan, throughout which the Emperor and his (theoretically) legally ordinary cabinet remained in office, with the Allied occupation authorities sitting atop it, issuing orders to and through the Japanese ministries, which remained open and functional throughout, or that of Italy, where the King of Italy threw out his Fascist ministers and appointed a government mandated to sue for peace. Likewise in Romania and Bulgaria, Axis-aligned governments were overthrown by coup and received constitutional approbation from their monarchs (or regents); this rendered the new Japanese, Italian, Romanian, and Bulgarian governments legitimate enough to retain at least some sovereignty under Allied supervision; in Germany, where Hitler was head of state, the principle that an Axis state whose monarch threw out its belligerent ministry and appointed a peace-minded one did not operate; moreover, by the end of the war, the Nazi regime was considered so overridingly evil that denazification was a non-negotiable prerequisite of any peace.
In 1948, Max Rheinstein wrote that Germany could still be considered a state in some respects under international law: "Of the criteria of a state, Germany has a territory, a population, and a government, although the latter is not of her own making. She is thus to be characterized as a "dependent state," a state which is, especially, not allowed to maintain foreign relations and which is in this respect similar to a protectorate."
From the 1950s onward, a school of German legal theorists developed the alternative view that the Allies had only become trustees of German sovereignty while the Reich government had been rendered nonfunctional; consequently, once a properly constituted German government (the Federal Republic) was re-established, it could resume the identity and legal status of the former German Reich without requiring any formal transfer of sovereignty from the Allied Control Council (which by then existed on paper only).
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Legal status of Germany AI simulator
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Legal status of Germany
The legal status of Germany concerns the question of the extinction, or otherwise continuation according to the rules of state succession, of the German nation-state (i.e., the German Reich created in the 1871 unification) following the rise and downfall of Nazi Germany, and constitutional hiatus of the military occupation of Germany by the four Allied powers from 1945 to 1949. It became current once again when the German Democratic Republic (East Germany) joined the Federal Republic of Germany (West Germany) in 1990.
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, and thus carry forward its position as a subject of international law, or whether it would be a state established anew. This was important for such questions as whether and how Germany might pay war reparations, and also its ability to assert territorial claims against Poland and Russia in the future.
The 1945 Potsdam Agreement had specified that a full and final peace treaty concluding World War II, including the exact delimitation of Germany's postwar boundaries, would have to be "accepted by the Government of Germany when a government adequate for the purpose is established". The Federal Republic always maintained that no such government could be said to have been established until East and West Germany (and Berlin) were unified under a single democratic government (implicitly, the West German one); but some held that the combination of these three jurisdictions did not count as a unified Germany for the purpose of the peace treaty so long as its eastern boundary was the Oder–Neisse line, insofar as there was a substantial amount of pre-1938 German territory outside this reunified Germany.
The Basic Law for the Federal Republic of Germany (Grundgesetz) raised further questions. The Basic Law was intended as a provisional constitution to stand in the interim until a permanent, all-German constitution could be written. The name Grundesgetz was chosen in preference to the German for "Constitution", Verfassung, to avoid the sense of weight and permanence of the latter term. The Grundesgetz provided for two routes to an all-German state, either under Article 23 whereby "other parts of Germany", over and above the 11 then-extant States of the Federal Republic (Bundeslander) could be admitted to the federation without altering the constitutional setup. Alternatively, Article 146 provided for a constituent assembly elected across all of Germany (whatever this was held to mean) to draw up a new and theoretically permanent constitution (a true Verfassung) to replace the Grundesgetz. When German reunification was actually accomplished in 1990, the first route was chosen; the Grundesgetz remains in effect without major changes 35 years after reunification.
No functioning national government existed in Germany following the surrender of the German High Command in May 1945; all functions of government were carried out by, or under the supervision of, the Allied Powers. The Allies proposed that with the death of Adolf Hitler on 30 April 1945, given the nonfunctional state of the German government, the Reich had ceased to exist; thus, as the highest authority in Germany, the Allied Control Council became not just military occupiers but in fact the sovereign government of Germany, entitled to exercise all the powers of a sovereign state, including ceding territory to other states. Further, they argued that the Fourth Geneva Convention's restrictions on occupiers enacting fundamental changes in government or economic system did not apply; there was no government (and barely any economy) to change; moreover, denazification was considered an absolute and overriding moral imperative. Consequently, the Potsdam Agreement envisaged that, in due time, a German state would emerge from the wreckage of World War II, reuniting Berlin and the four Allied control zones; but that this state would derive its sovereignty not from the Reich, but from a transfer of authority by the Allied Control Council.
The principle of debellatio provided the legal framework for the Allies assuming sovereignty over Germany despite the absence of any instrument of surrender from the German government proper (as distinct from the armed forces). By the time the Allies obtained military surrender from Germany, no functional German government remained; thus, there was no instrument of surrender because there was nobody capable of issuing one. Inasmuch as the High Command was the last functional part of the German government, it served, pars pro toto, as the surrender of all of Germany. This was quite contrary to the surrender of Japan, throughout which the Emperor and his (theoretically) legally ordinary cabinet remained in office, with the Allied occupation authorities sitting atop it, issuing orders to and through the Japanese ministries, which remained open and functional throughout, or that of Italy, where the King of Italy threw out his Fascist ministers and appointed a government mandated to sue for peace. Likewise in Romania and Bulgaria, Axis-aligned governments were overthrown by coup and received constitutional approbation from their monarchs (or regents); this rendered the new Japanese, Italian, Romanian, and Bulgarian governments legitimate enough to retain at least some sovereignty under Allied supervision; in Germany, where Hitler was head of state, the principle that an Axis state whose monarch threw out its belligerent ministry and appointed a peace-minded one did not operate; moreover, by the end of the war, the Nazi regime was considered so overridingly evil that denazification was a non-negotiable prerequisite of any peace.
In 1948, Max Rheinstein wrote that Germany could still be considered a state in some respects under international law: "Of the criteria of a state, Germany has a territory, a population, and a government, although the latter is not of her own making. She is thus to be characterized as a "dependent state," a state which is, especially, not allowed to maintain foreign relations and which is in this respect similar to a protectorate."
From the 1950s onward, a school of German legal theorists developed the alternative view that the Allies had only become trustees of German sovereignty while the Reich government had been rendered nonfunctional; consequently, once a properly constituted German government (the Federal Republic) was re-established, it could resume the identity and legal status of the former German Reich without requiring any formal transfer of sovereignty from the Allied Control Council (which by then existed on paper only).