Legal Status of Germany - Overview

Overview

After World War II, determination of legal status was relevant, for instance, to resolve the issue of whether the West German Federal Republic would be the successor state of the German Reich—with all at the time uncodified implications of state succession, such as the continuation of treaties—or if, according to international law, it would be identical with the German Reich. Further, determination of authority, for instance to assert or deny territorial claims, especially with respect to the former eastern territories, was dependent upon this determination of legal status.

The issue was also significant from a constitutional legal perspective: while in the case of the downfall of the German Reich, the Federal Republic would need to have reconstituted itself, merely a re-organization after overcoming the Nazi rule would have been necessary otherwise. Dependent upon this, consequently, was also the question of whether for the creation of the Basic Law for the Federal Republic of Germany (Grundgesetz) merely the consent of each and every—in this regard again sovereign—federal state (Bundesland) was required, or if constituent power (pouvoir constituant) lay with the entirety of the German People as it was spread across the German states.

The issue of the legal status of Germany from an international legal perspective prompted questions, as the Allied takeover was neither determined by the Hague Conventions nor could it be measured against the three-element theory of state law developed by the legal academic Georg Jellinek (1851–1911), whereafter a state qualifies as a subject of international law if it fulfills the three characteristics of territory, people, and government.