Unification Treaty Constitutionality Case (Merits)

Abstract

States — Right of self-determination of peoples — Exercise of right of self-determination by German people — Reunification of Germany — Whether constituting overriding constitutional requirement — Whether taking priority over protection of property rights of individuals — Federal Republic of Germany-German Democratic Republic Unification Treaty, 1990 — Preamble to Basic Law of Federal Republic, 1949

State responsibility — Taking of property — Expropriation of property in East Germany during occupation by Soviet Union, 1945–49 — Whether individuals affected entitled to restitution or compensation — Extent of responsibility of Federal Republic of Germany — Effect of German reunification — Joint Declaration of two German States that expropriations now irreversible — Incorporation of Declaration into Unification Treaty — Article 41 of Treaty

Claims — State control over private claims — Extinction of claims by treaty — Property expropriated by occupation authorities in East Germany, 1945–49 — Agreement between two German States at time of German reunification to exclude restitution of expropriated property — Whether violating property rights of individuals affected — Relevance of fact that any claims brought under international law would have been unenforceable

State succession — Germany — Reunification — Demise of German Democratic Republic with accession of its Länder to Federal Republic of Germany — Whether constituting State succession — Respect for private rights — Scope of responsibility of Federal Republic for property claims of individuals in former German Democratic Republic

Treaties — Conclusion and operation — Constitutional limitations — Compatibility of treaty with Basic Law of Federal Republic of Germany — Unification Treaty, 1990 — Constitutional amendments necessary for achievement of German reunification — Amendment excluding restitution of property expropriated during occupation of East Germany by Soviet Union, 1945–49 — Whether compatible with basic constitutional principles of the rule of law and social justice — Basic Law, Article 79(3) — Inclusion of amendments in Unification Treaty — Whether constituting an acceptable procedure under the Basic Law

Territory — Occupation of foreign territory at end of war — Occupation of East Germany by Soviet Union, 1945–49 — Expropriation of property — Legality — Claims to restitution and compensation — Whether Federal Republic becoming liable to satisfy such claims following German reunification — Effects of changes of sovereignty — Reunification of Germany — Legal consequences — Whether Federal Republic becoming liable for reparation of unlawful acts committed on territory of former Soviet zone by occupation authorities — Basic Law of Federal Republic, Article 23(1)

States — Continuity of States — German reunification — Demise of German Democratic Republic with accession of its Länder to Federal Republic of Germany — Whether Federal Republic responsible for measures taken by occupation authorities in East Germany and subsequently acquiesced to by German Democratic Republic — Unification Treaty, Article 4(4) — Whether German Democratic Republic always to be considered as foreign State in relation to Federal Republic

States — Sovereignty and independence — In foreign relations — Power of courts to review executive action — Decisions taken by Government of Federal Republic of Germany in negotiations leading to German reunification — Whether subject to judicial review

Expropriation — Compensation — Property expropriated in East Germany during Soviet occupation, 1945–49 — Measure of compensation required by Basic Law of Federal Republic of Germany — Whether restitution required — Whether full compensation equivalent to restitution required — Criteria for determining appropriate level of compensation — Relevance of overall financial obligations of the Federal Republic — Relevance of fact that most property for which restitution being sought now publicly owned

Expropriation — Extraterritorial effect — Expropriation without compensation carried out by foreign State — Recognition of effectiveness in forum State — Limitation to property within expropriating State — Territoriality principle — Public policy exception — Scope of exception

Damages — Measure of damages — Expropriation and interference with property — Circumstances in which full compensation not required — Property expropriated in East Germany during Soviet occupation, 1945–49 — Compensation payable by Federal Republic of Germany following German reunification — Whether level of compensation subject to executive discretion — Relevance of overall financial commitments of Federal Republic following reunification

Relationship of international law and municipal law — Recognition and enforcement of foreign laws — Duty of recognition under international law — Expropriatory legislation — Territoriality principle — Public policy exception — Whether non-payment of compensation justifies non-recognition of legislation with regard to property within expropriating State

War and armed conflict — Enforcement of the laws of war — Compensation and reparations — Equalization of the burdens of war by Federal Republic of Germany — Extent of responsibilities of the Federal Republic — Whether obligated to grant restitution of property expropriated in former East Germany — Whether obligated to grant full compensation

Human rights — Procedure for enforcement — Fundamental rights under Basic Law of Federal Republic of Germany — Property rights — German reunification — Agreement to exclude restitution of property expropriated during Soviet occupation of East Germany, 1945–49 — Whether violating fundamental rights under the Basic Law

Relationship of international law and municipal law — Treaties — Federal Republic of Germany-German Democratic Republic Unification Treaty, 1990 — Compatibility with Basic Law of Federal Republic — The law of the Federal Republic of Germany