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The Reunification of Germany

Published online by Cambridge University Press:  27 February 2017

Jochen Abr. Frowein
Jochen Abr. Frowein*
Affiliation:
Max Planck Institute for Comparative Public Law and International Law; University of Heidelberg
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Extract

The reunification of Germany raised a variety of public international law questions that have been subjected to extensive scholarly review in Germany, where the interest is naturally intense. This report is designed to bring before American and other international lawyers the basic facts and issues pertaining to that important event.

Type
Current Developments
Information
American Journal of International Law , Volume 86 , Issue 1 , January 1992 , pp. 152 - 163
Copyright
Copyright © American Society of International Law 1992

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References

1 Readers of this article should also consult Frowein, Germany Reunited, 51 Zeitschrift Für Ausländisches Öffentliches Recht und VöLkerrecht [Zaörv] 333 (1991), in which the author also analyzes aspects of this important legal development. See also, in the same issue of the Zeitschrift, Oeter, German Unification and State Succession, id. at 349; Giegerich, The European Dimension of German Reunification: East Germany’s Integration into the European Communities, id. at 384; Stein, External Security and Military Aspects of German Unification, id. at 451; and Wilms, The Legal Status of Berlin after the Fall of the Wall and German Reunification, id. at 470.

2 Remarks at Brandenburg Gate in West Berlin (June 12, 1987), [1987] 1 Pub. Papers (Ronald Reagan) 634, 635.

3 Das Ende der Teilung 92 (J. Thies & W. Wagner eds. 1990) [hereinafter Thies & Wagner].

4 Haltzel, Amerikanische Einstellungen zur deutschen Wiedervereinigung, 45 Europa Archiv 127 (1990); see also Thies & Wagner, supra note 3, at 99–104; U.S. Dep’t of State, Current Policy, No. 1233, 1989, at 5.

5 Davy, Groβibritannien und die Deutsche Frage, 45 Europa Archiv 139 (1990); see also Thies & Wagner, supra note 3, at 111–16.

6 Schutze, Frankreich angesichts der deutschen Einheit, 45 Europa Archiv 133 (1990); see also Thies & Wagner, supra note 3, at 105–10.

7 Riese, Die Geschichte hat sich ans Werk gemacht, Der Wandel der sowjetischen Position zur Deutschen Frage, 45 Europa Archiv 117 (1990); see also Thies & Wagner, supra note 3, at 89–98. On February 10, 1990, President Gorbachev and Chancellor Kohl agreed in Moscow “that it is the right of the German people alone to take the decision whether to live together in one state.” See Riese, supra, at 117; Thies & Wagner, supra note 3, at 89.

8 Convention on Relations between the Three Powers and the Federal Republic of Germany, May 26, 1952, 6 UST 4251, TIAS No. 3425, 331 UNTS 327.

9 Article 7 of the treaty reads:

1. The Three Powers and the Federal Republic are agreed that an essential aim of their common policy is a peace settlement for the whole of Germany, freely negotiated between Germany and her former enemies, which should lay the foundation for a lasting peace. They further agree that the final determination of the boundaries of Germany must await such a settlement.

2. Pending the peace settlement, the Three Powers and the Federal Republic will cooperate to achieve, by peaceful means, their common aim of a unified Germany enjoying a liberal-democratic constitution, like that of the Federal Republic, and integrated within the European community.

Id. See G. Ress, Die Rechtslage Deutschlands nach dem Grundlagenvertrag vom 21. Dezember 1972 (1978).

10 The right to self-determination includes, as defined in the United Nations General Assembly’s Declaration on Principles of International Law concerning Friendly Relations among States in Accordance with the Charter of the United Nations, the following: “[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people.” GA Res. 2625 (XXV) (Oct. 24, 1970).

It is a moot question, therefore, to what extent such a right would have existed if only a minority in the GDR had opted for unification and a majority could only have been formed by including the people of the Federal Republic of Germany. When a state is divided, whether the right to self-determination is held by the peoples of both entities and also by the people as a whole, or only by the latter is a difficult issue. See Doehring, Das Selbstbestimmungsrecht der Völker als Grundsatz des Völkerrechts, 14 Berichte der Deutschen Gesellschaft für Völkerrecht 7 (1974). Under German constitutional law, as well as under public international law, it seems that the Federal Republic would have had to respect a decision by the majority in the GDR to retain a second German state. Frowein, Deutschlands aktuelle Verfassungslage, 49 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 12 (1990). As soon as a state becomes a member of the United Nations, the right to self-determination must certainly apply to its people.

11 1990 Gesetzblatt der DDR, Teil I, at 955.

12 From the beginning, Article 23 of the Constitution (Basic Law or Grundgesetz) of 1949 provided for the accession of other parts of Germany. The article was first used in 1956 when the Saar acceded to the Federal Republic. Cf. Münch, Zum Saarvertrag vom 27. Okt. 1956, 18 Zaörv 1 (1957–58). It was clear from the beginning of the unification process that application of Article 23 was by far the easiest way to bring about German reunification. Article 146 of the Federal Constitution was frequently discussed as another way to bring about reunification. The original text of Article 146, which applied before reunification, read: “This Basic Law loses its validity on the day on which a constitution enters into force which has been adopted by the German people in a free decision.” This article was interpreted as leaving open an alternative: the two German states could decide to elect a constituent assembly that would draft a new constitution for a united Germany. Although such a procedure was possible in theory, it certainly did not meet the requirements of the situation in 1989–1990.

13 Agreement with Respect to the Unification of Germany, 1990 Bundesgesetzblatt, Teil II [BGB1.II], at 889, translated and reprinted in 30 ILM 457 (1991).

14 Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, 60 Stat. 1649, TIAS No. 1520, 68 UNTS 189. The Preamble states:

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.

15 1990 BGB1.II 1318, 29 ILM 1187 (1990).

16 1991 BGB1.II 587.

17 Declaration Suspending the Operation of Quadripartite Rights and Responsibilities, Oct. 1, 1990, reprinted in 30 ILM 555 (1991), 85 AJIL 175 (1991).

18 1990 Bulletin des Presse- und Informationsamtes der Bundesregierung 1394. The Treaty confirms the existing border in Article 1, making reference to bilateral treaties between Poland and the two German states, infra notes 22, 23. Article 2 provides: “The parties declare that the border which exists between them is inviolable now and for the future and they agree to respect unconditionally their sovereignty and territorial integrity.” For additional discussion of the Treaty from the Polish perspective, see Czaplinski, The New Polish-German Treaties and the Changing Political Structure of Europe, infra p. 163.

19 One has avoided speaking of a formal guarantee of the borders by the four powers, but the result is the same. See Ress, Guarantee, in [Instalment] 7 Encyclopedia of Public International Law 109 (R. Bernhardt ed. 1984) [hereinafter EPIL].

20 It is not easy to describe the remaining competence accurately. Since all four Governments agreed that Germany is fully sovereign, they probably could only ensure that any treaty involving a change in German boundaries be brought about by fair and equitable negotiations that would not bring any other party under pressure.

21 Protocol of the Proceedings of the Tripartite Conference of Berlin, Aug. 2, 1945, United Kingdom–USSR–United States, 3 Bevans 1207, [1945] 2 Foreign Relations of the United States 1478. Part VIII(B) provides:

[P]ending the final determination of Poland’s western frontier, the former German territories east of a line running from the Baltic Sea immediately west [of] Swinemunde, and thence along the Oder River to the confluence of the western Neisse River and along the western Neisse to the Czechoslovak frontier, … shall be under the administration of the Polish state and for such purposes it should not be considered as part of the Soviet zone of occupation in Germany.

22 Agreement concerning the Demarcation of the Established and Existing Polish-German State Frontier, July 6, 1950, 319 UNTS 93.

23 Agreement concerning the Basis for Normalization of Their Mutual Relations, Dec. 7, 1970, 830 UNTS 327.

24 Frowein, Legal Problems of the German Ostpolitik, 23 Int’l & Comp. L.Q. 105 (1974).

25 Klein, An der Schwelle zur Wiedervereinigung Deutschlands, 43 Neue Juristische Wochenschrift 1065, 1071 (1990); Hailbronner, Legal Aspects of the Unification of the Two German States, 2 Eur. J. Int’l L. 18 (1991).

26 S. Krülle, Die Völkerrechtlichen Asfekte des Oder-Neiβe-Problems (1970); Frowein, Potsdam Agreements on Germany, in 4 EPIL, supra note 19, at 141 (1982).

27 See Kimminich, Oder-Neisse Linie, in 12 EPIL, supra note 19, at 267 (1990); Hailbronner, supra note 25, at 25.

28 The “orderly transfer” mentioned in the Potsdam Protocol was in fact a measure disregarding all standards of the law of war and resulting in the deaths of millions of people.

29 See 3 M. Whiteman, Digest of International Law 423 (1964).

30 The Federal Republic of Germany had always considered itself to be the continuation of the German state founded in 1867–1871. In 1867 the North German Federation (Norddeutscher Bund) was established under the political leadership of Prussia. The southern German states acceded to this federation in 1871, according to the view that is generally accepted.

31 Note 13 supra.

32 The well-known rule of moving treaty boundaries was immediately accepted as the correct solution for the treaties concluded by the Federal Republic of Germany. Frowein, Völkerrechtliche Probleme der Einigung Deutschlands, 45 Europa Archiv 234 (1990).

33 For a detailed discussion, see Oeter, supra note 1.

34 The consultations that are being conducted with the treaty partners of the former GDR seem to show that already.

35 1 L. Oppenheim, International Law 153 (Lauterpacht 7th ed. 1948); 2 D. O’connell, State Succession in Municipal Law and International Law 26, 61, 375 (1967).

36 Treaty on Navigation on the River Oder, Feb. 6, 1952, GDR-Poland, 4 Dokumente zur Auβenpolitik der DDR 157 (1957), amended May 15, 1969, 1970 Gesetzblatt der DDR, Teil I, at 113. On localized treaties, see 2 D. O’connell, supra note 35, at 17; Oeter, supra note 1, at 363.

37 Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978, 3 United Nations Conference on Succession of States in Respect of Treaties, Official Documents, UN Sales No. F.79.U.10 (1979), reprinted in 17 ILM 1488 (1978).

38 See Oeter, supra note 1, at 354.

39 See id. at 378.

40 Id. at 373–77.

41 Id. at 379–81.

42 Giegerich, supra note 1, at 398.

43 Id. at 404.

44 Protocol Eur. Pari. (Ausfuhrlicher Sitzungsbericht), Apr. 4, 1990, at 266; see also Jacque, German Unification and the European Community, 2 Eur. J. Int’l L. 1 (1991).

45 One can certainly agree with Jacque, supra note 44, that a consensus of all the members of the Community was reached in Dublin on April 28, 1990. However, whether it was legally possible for them to have decided otherwise is much more doubtful. They would seem to have been bound to accept the consequences of the accession if Germany complied fully with Community rules.

46 Giegerich, supra note 1, at 422.

47 Id. at 423–25.

48 Id. at 424.

49 On April 28, 1990, the European Council charged the Commission in Dublin with drawing up the necessary transitional measures. EC Bull., NO. 4, 1990, at 8.

50 33 O.J. Eur. Comm. (NO. L 263) 1 (1990).

51 Giegerich, supra note 1, at 425–34.

52 Note 15 supra.

53 See text at note 16 supra.

54 See Declaration Suspending the Operation of Quadripartite Rights, supra note 17.

55 Note 8 supra.

56 See Stein, supra note 1.

57 Frowein, supra note 1, at 348.

58 Frowein, Das Individuum als Rechtssubjekt im Konsularrecht. Zu den Konsularverträgen mit der DDR, in Internationales Recht und Wirtschaftsordnung: Festschrift Für F. A. Mann zum 70. Geburtstag 367 (1977).

59 The Federal Constitutional Court, in the famous Teso decision, found that persons naturalized in the GDR acquired German nationality. Judgment of Oct. 21, 1987, 77 BVerfGE 137 (1987).

60 See note 21 supra.

61 See documents in 51 ZaöRV 520–28 (1991).