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The German Grundgesetz After the 1990 Unification Treaty of the Two Germanies
Published online by Cambridge University Press: 21 May 2009
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References
1. See Piotrowicz, R., ‘The Status of Gennany in International Law: Deutschland über Deutschland’, 38 ICLQ (1989) pp. 609–635CrossRefGoogle Scholar; Piotrowicz, R., “The Border between the Federal Republic of Germany and the German Democratic Republic: A Demarcation Line or Just an International Frontier?’, 36 NILR (1989) pp. 314–341CrossRefGoogle Scholar; Mann, R.A., ‘The Legal Status of Berlin Considered by the European Commission of Human Rights’, 39 ICLQ (1990) pp. 669–671CrossRefGoogle Scholar.
2. As confirmed by ‘The Treaty on the Final Settlement with Respect to Germany’, Arts. 1 and 7, signed in Moscow on 12 September 1990 and “The Document Suspending Four Power Rights’ signed in New York on 2 10 1990Google Scholar.
3. Other changes, concerned mainly with financial provisions, to Arts. 131, 106, 107, 91a, 91b, and 104a paras. 3 and 4, will not be considered here.
4. E.g., the 1849 Panlsldrche Constitution (Paulskirchenverfassung), the 1871 Bismark Constitution (Bismarcksche Verfassung) and the 1919 Weimar Constitution (Weimarer Verfassung).
5. Cmnd. 6648 as discussed in Mann, F., ‘The Present Legal Status of Germany’, ILQ (1947) p. 314 et seq.Google Scholar, reprinted in F.A. Mann, Studies in International Law (1973) pp. 634–659; Mann, F., ‘Germany's Present Legal Status Revisited’, 16 ICLQ (1967) pp. 760–799CrossRefGoogle Scholar, and further discussed in Frowein, J., ‘Legal Problems of the German Ostpolitik’, 23 ICLQ (1974) pp. 105–126CrossRefGoogle Scholar.
6. For a general constitutional history, see Koch, H.W., A Constitutional History of Germany in the Nineteenth and Twentieth Centuries (1984)Google Scholar.
7. See generally Klein, E., ‘The Concept of the Basic Law’, in Starck, C., ed., Main Principles of the German Basic Law (1983) pp. 24–26Google Scholar; Verlag, Nomos and Kommers, O.P., Constitutional Jurisprudence of the Federal Republic of Germany (1990) ch. 2Google Scholar.
8. See Mann, op. cit. nn. 1 and 5.
9. See nn. 5–8 supra.
10. This is known as the Wiedervereinigungsgebot which meant that the Basic Law obliged all organs of the FRG not to hinder unification but in fact to pursue policies which encouraged this aim. As confirmed by the Constitutional Court, in BVerfGE 5, 85 (The Communist Party Ban case), and B VerfGE 36, 1 (The FRG-GDR Basic Treaty case).
11. See the appendix infra for the old preamble.
12. See the introductory chapters and comments on the Preamble in the commentaries of, inter alia, Seifert, K.H. and Homig, D., eds., Taschenkommentar, Grundgesetz für die Bundesrepublik Deutschland (1988)Google Scholar; Schmidt-Bleibtren, B., Kommentar zum Grundgesetz für die Bundesrepublik Deutschland, 7th edn. (1990) pp. 96–104 and 463–468Google Scholar; and Maunz, T. and Zippelius, H., Deutsches Staatsrecht, 27th edn. (1988) pp. 6–19Google Scholar, and the judgment of the Federal Constitutional Court (BVerfGE), 1, 351 at 368.
13. BVerfGE 36, 1, judgment of 31 July 1973, extracts in Richter, I. and Schuppert, G.F., Casebook Verfassungsrecht (1987)Google Scholar; and Schwabe, J., Entscheidungen des Bundesverfassungsgerichts (1988) p. 1Google Scholar.
14. Supra n. 5, especially Mann, , op.cit (1967), pp. 760–799Google Scholar.
15. The Paris Agreements of 23 October 1945, entered into force on 5 May 1955.
16. Piotrowicz, , loc. cit. n. 1 (ICLQ), p. 633Google Scholar.
17. Treaty with the USSR of 12 August 1970; Treaty with Poland of 7 December 1970. The Treaty on the basis of relations between the Federal Republic of Germany and the German Democratic Republic was signed on 21 December 1972, and ratified on 20 June 1973.
18. BVerfGE 36, 1, Judgment of 31 July 1973 (1973) 26 NJW 1539, extracts can also be found in Schwabe, op. cit n. 13. An English translation of the salient points from the Judgment can be found in Wilk, D., ‘Federal Republic of Germany Case Note: Applications of Bavarian State Government and Federal Government’, 70 AJIL (1976) pp. 147–154 at p. 150Google Scholar.
19. On mis point, see Richter, and Schuppert, , op. cit n. 13, p. 318Google Scholar.
20. For full details see Mann, , loc. cit n. 5 (1967) pp. 760–799Google Scholar, and Piotrowicz, . loc. cit n. 1 (ICLQ), pp. 609–635Google Scholar.
21. The GDR Law on the Establishment of the Regions (Geseti Blatt I No. 51,955), see the second appendix to the Unification Treaty.
22. A public opinion suggested that 51% of the adult population of the united Germany were in favour of Berlin becoming the capital foi all purposes, although when asked about the compromise solution, i.e., that the Presidential and symbolic capital should be Berlin but that Parliament and the Ministries should remain in Bonn, the answer was equivocal: 31% thought that this was the right solution, 34% the wrong one and 33% had no strong opinion. Der Spiegel (29 October 1990) p. 50.
23. An appendix containing the old and new versions of the Basic Law is attached so that the amendments made can be observed. The translations are supplied by the writer.
The following have been removed from the Preamble:
The clause referring to the preservation of national and political unity (‘seine nationale und staatliche Einheit zu wahren und”); the clause ‘in order to give a new order to the political life for a transitional period’ (‘um dem staatlichen Leben für eine Übergangszeit eine neue Ordnung zu geben’); and then the last two clauses referring to those Germans denied the right to participate and the requirement that the entire German people achieve unity and freedom (‘Es hat auch für jene Deutschen gehandelt, denen mitzuwirken versagt war. Das gesamte Deutsche Volk bleibt aufgefordert, in freier Selbstbestimmung die Einheit und Freiheit Deutschlands zu vollenden’).
24. The interpretation of the similar pre-unification clause was interpreted to mean that this was not just a treaty between the various regions but a treaty between all the peoples of these regions. See, inter alia, Seifert and Homig, op. cit. n. 12; Schmidt-Bleibtreu, , op. cit. n. 12, pp. 96–104 and 463–468Google Scholar, and Maunz, and Zippelius, , op. cit n. 12, pp. 6–19Google Scholar.
25. See n. 2 supra, especially Arts. 1 and 7 of the final Settlement Treaty.
26. Subject to the comments in the text at nn. 26–29 supra.
27. Indeed as required by the Final Settlement Treaty Art. 1.
28. Commentaries on the phrase ‘The entire German People’ in the old Preamble distinguished mis from the citizens of the former FRG and equated it more with the population of the pre-war Germany, the 1937 Reich. If this remained so it would present some confusion with the fact that the territory of Germany had been settled. See, inter alia, Seifert and Homig, op. cit n. 24, Schmidt-Bleibtreu, op. cit. n. 12, and Maunz and Zippelius, op. cit n. 12.
29. 7 December 1970, BGBI 1972 II. 361.
30. See 36 Keesing's Record of World Events, pp. 37379, 37466, 37659 and 37717. The Treaty signing as reported in The Times (15 November 1990) p. 12.
31. Reichs- und Staatsangehörigkeitsgesetz 1913 as amended and the willingness of the other States to grant exit visas to their citizens.
32. Words added by the Unification Treaty are those in italics.
33. Other changes which are of a more technical nature but merit note are:
Art 4 para. 3 of the Treaty concerns changes made to the strength of the Länder representation in the Bundesrat as detailed in Art. 51 para. 2 of the Basic Law. A fourth sentence has been added to take account of the increase and shift in population in the Länder and to increase the number of representatives for the largest Länder. ‘Länder with more than seven million inhabitants (have) six votes’.
Art. 4 para. 4 re-labels Art. 135a of the Basic Law to read Art 135a para. 1. This deals with extinguishing the liabilities of the Reich and the Land of Prussia for measures taken prior to 1 August 1945.
A second paragraph is added to Art 135 which extends the application of the provisions of Art 135 para. 1 to the former GDR or its legal entities. It also applies to liabilities of the new Federal State and its corporate bodies and institutions under public law, which are the result of the transfer of properties of the GDR to: the FRG; the regions; or local authorities and liabilities arising from measures taken by the GDR.
34. Art. 4. para. 5, sentence 2, allows for extension in time for departures from sections IL VIII, VIIIa, IX, X, XI, of the Basic Law until 31 December 1995. These sections concern: The Federation and the Constituent Regions; The Execution of Federal Laws and the Federal Administration; Joint Tasks; The Administration of Justice; Finance and the Transitional and Concluding Provisions.
35. These are to Art. 4. para. 5, sentence 3, which deals with the very conplex area of property restitution in the former GDR. Basically it makes a special case for this topic referring to the agreements mentioned in Art. 41 of the Unification Treaty. See for the details of this agreement NJW (1990) X–XII.
The Treaty from Chapter 3 Art. 8 deals with the very many changes and exceptions to the basic rule that Federal laws are now fully applicable in the area of the former GDR. In time all of these may be catalogued for English consumption.
36. See the discussion in Der Spiegel (15 October 1990) pp. 30–31 as to why and how this was included in the Unification Treaty.
37. Such as for the environment.
38. See Kriele, M., ‘Art. 146 GG: Brücke zu einer neuen Verfassung’, ZRP (1991) p. 1 et seq.Google Scholar
39. See Zippelius, R., ‘Quo vadis Grundgesetz’, NJW (1991) p. 23Google Scholar in which the author gives dear support to the continuity of the present Basic Law.
40. Arts. 1 and 7 of the Final Settlement Treaty. How the other former areas of die Reich, now belonging to Poland and the USSR, have been incorporated into these countries poses other questions beyond the scope of this article.