Legal Aspects of the Unification of the Two German States
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Abstract
The unification of the two German states has not fostered concerns about a destabilisation of the present political system in Europe and a reemergence of German nationalism. The process of European integration has not been slowed down; in the field of international relations, for the first time since the Second World War, an end of East-West military confrontation and the prospect of a larger European co-operation within the framework of the Council of Europe and the CSCE Conference is envisaged. Following the Hungarian and Polish example, other Eastern European States may soon decide to join the European Convention on Human Rights and the Council of Europe and enter into close economic relations with the EEC. For the first time in this century there is also a true chance to settle all the relicts of the Second World War and to achieve a lasting peace between Germany and its Eastern European neighbours. The agreement concluded between Germany and Poland on November 14, 19902 was not brought about by the Diktat by the Allied Powers but was based upon the conviction of the Polish and German Governments as well as of the peoples of both countries that the time had come for a final reconciliation, similar to that between France and Germany in the last decades.
On the way to a final settlement between Germany and Poland some legal obstacles had to be overcome. Not many people abroad may have understood the legal reservations to the Warsaw Treaty of 1970 until, finally, the German Federal Government and Parliament officially opened the door for a recognition of the existing Western frontiers of Poland which in legal terms may be considered as a cession of German territory, since the region involved had been a part of Germany for centuries. Under public international law the exercise of a right of self-defence against aggression cannot be considered in itself as a legal basis for annexation of territory. Even if one starts from the assumption that under the special circumstances of World War II particular legal rules apply with regard to those war measures undertaken by the Allied Powers against Nazi-Germany, it would be difficult to argue from an international law point of view that the Allied Powers were justified in transferring German territory. Article 107 of the UN Charter authorizing action `in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the governments having responsibility for such action' cannot be interpreted as implying an unlimited right to disregard basic rules of public international law, such as the territorial sovereignty of a state. The question of the scope of application of Article 107 of the Charter, however, needs not to be discussed since the Allied Powers had never transferred territorial sovereignty of the former eastern territories to Poland. The term `administration', whatever its precise legal meaning may be,3 used by the Allied Powers in the relevant instruments did not effect a transfer of title.4 Western Allied Powers as well as German Federal Government have stated repeatedly that only in a peace-settlement with a unified Germany could the question of a final delimitation of Germany's frontiers be solved.5 Nor can the expulsion of millions of Germans be justified by an aggression against Poland and crimes committed during the Nazi rule in Poland.6 International law principles on annexation and title to territory are, however, not the only criterion in international relations between two states. The official recognition of the existing Western frontiers of Poland was required not only by foreign policy considerations but also by the legitimate rights and expectations of the Polish people living now on this territory and, finally, by Germany's responsibility for World War II and its effects upon the Polish people. The principle confirmed by the Friendly Relations Declaration7 that the territory of a state shall not be the object of acquisition by another state
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