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.
Overview 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 Grundgesetz was chosen in preference to the German for "Constitution", Verfassung, to avoid the sense of weight and permanence of the latter term. The Grundgesetz 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 Grundgesetz. When German reunification was actually accomplished in 1990, the first route was chosen; the Grundgesetz 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 could exit the war in a relatively ordinary manner 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."The Legal Status of Occupied Germany
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).
Concept of the German state During the time of the Holy Roman Empire (962-1806) and the German Confederation (1815-1848, 1850-1866), the German-speaking lands of Europe was divided into many small states, with this fragmentation being known as Kleinstaaterei. At the 1871 unification of Germany, the new German Reich was established constitutionally as a federative monarchy, with each state having a defined territory; and consequently the Reich was, in legal terms, considered to be the particular collection of territories which had signed on to the Constitution of the German Empire.
This geographical conception of the German state became steadily superseded in the period up to the first World War by the concept of German nationalism; that is, the idea that German-speaking people in Central Europe were a political body corporate possessed of rights as a nation state. Nonetheless, substantial German-speaking regions remained outside the Reich (principally Austria and German Switzerland); moreover, the Reich held substantial territories where Polish (Posen), French (Alsace–Lorraine), or Danish (North Schleswig) were spoken. This idea (made somewhat more coherent by the cession of the Reich's non-German-speaking territories) gained legal grounding constitution of the Weimar Republic, where Article 1 identifies the Reich as deriving its authority from the German people; while Article 2 identifies the state territory under the Reich as the lands which, at the time of the constitution's adoption, were within the authority of the German state.
The congruence of nation and state was bidirectional: The institutions of the German state derived their legitimacy from the German people, likewise, the German people's rights and duties derived from the establishment of the Reich as the body corporate of the German nation. Subsequently, the term German Reich continued to be applied both as identifying both the state and the citizens; increasingly, however, the sense of "the German nation politically organized" became primary. Following the Second World War, the term 'German Reich' fell out of use in constitutional formulations, being replaced by the term nation as a whole, as applied to denote the state as a totality of the German national people; and the term Germany as a whole, as applied to denote the state as a totality of German national territory.
Nevertheless, it remains fundamental to German constitutional understanding that the legal status of Germany is a function of the unified German people, and is not constrained by the boundaries of territories falling under the jurisdiction of the German state at any one time.
Surrender of the Wehrmacht
After the Machtergreifung of the Nazi Party in 1933, state power had been agglomerated to the hands of Reich Chancellor (Reichskanzler) Adolf Hitler, who, from the death of Reich President Paul von Hindenburg on 2 August 1934 simultaneously served as head of state (styled Führer and Reichskanzler).Gesetz über das Staatsoberhaupt des Deutschen Reichs vom 1. August 1934. Furthermore, throughout the life of the Nazi regime, the functions of the Nazi Party and the state became increasingly integrated; by the final months of the war the distinction was on paper only. Following Hitler's suicide on April 30, 1945, the Goebbels cabinet laid out in his will took office; however, Goebbels took his own life the next day. Grand Admiral Karl Dönitz, appointed Reich President in Hitler's testament, gave the task of forming a government to Lutz Graf Schwerin von Krosigk; however, the consequent Flensburg Government held little de facto authority within Germany; moreover, it was it unrecognized by any Axis, Allied or neutral government.
These incidents preceded the unconditional surrender of the German armed forces (Wehrmacht), signed by nominated representatives of the three German armed services and of the military High Command (Oberkommando der Wehrmacht) in Berlin-Karlshorst. However, as a purely military instrument, no consequences incurred, as such, for the government itself.Frotscher/Pieroth: Verfassungsgeschichte, Rn 641. Nevertheless, by the time the Allies obtained military surrender from Germany, no functional German government (aside from that in Flensburg, which was unrecognized) remained; thus, there was no surrender from the government because there was no government left to issue one. The Allies therefore invoked the principle of debellatio, the end of a war by the complete destruction of an enemy government; inasmuch as the High Command was the last functional part of the German government, its capitulation served, pars pro toto, as the surrender of all of Germany. The Berlin Declaration announced that "[t]he unconditional surrender of Germany has thereby been effected...".The American Journal of International Law, Vol. 39, No. 3 (Jul., 1945), pp. 171-178 JSTOR Subsequent historians have treated 8 May 1945 as the date on which Nazi Germany ceased to exist.Shirer, William L, The Rise and Fall of the Third Reich, Simon & Schuster, 1960, p1140