Legal Aspects of the Unification of the Two German States

I. The German Unification Within the Framework of the Two-plus-Four-Agreement

A. Sovereignty and Termination of Allied Reserved Powers Relating to Germany as a Whole and to Berlin

Article 7 of the Treaty on the Final Settlement with respect to Germany of September 12, 1990⁸ marked the end of the rights and responsibilities of the Four Powers in relation to Berlin and Germany as a whole. As a result, the corresponding Quadripartite Agreements, decisions and practices are terminated, and all related Four Power institutions are dissolved. The united Germany shall accordingly have full sovereignty over its internal and external affairs. As the preamble of the Settlement declares, the rights and responsibilities of the Four Powers lose their function.

The fact that the unification could be achieved only by an agreement of the German states with the Four Powers is a result of various agreements between the Allied Powers on the division of Germany into military occupation zones and the partition of responsibility, particularly by the Potsdam Protocol of August 12, 1945.⁹ Military occupation rule ended with the establishment of the two German states in 1949 and the following treaties which both of them concluded with the occupation powers in their zones. However, the Western powers as well as the Soviet Union always reserved their rights relating to Germany as a whole and to Berlin.¹⁰ Though being, according to the constitution, a part of the Federal Republic, Berlin

therefore remained under military occupation rule, as confirmed later by the Quadripartite Agreement. The legal regime of Berlin thus was unilaterally imposed upon the two German states by the Four Powers - a clear indication of their continuing responsibility.

As regards Germany as a whole, a common responsibility of the Four Powers was only rarely exercised after the common military institutions had been dissolved at the outbreak of the cold war. As a demonstration of their rights and responsibilities the Western powers maintained a military mission in the GDR; the Soviet Union maintained two military missions in Frankfurt and Baden-Baden, a fact largely unknown to the German public. The GDR was reminded of its limited sovereignty only when a GDR soldier fired upon an American officer on duty near Potsdam.¹¹ Nevertheless, the common responsibility was repeatedly affirmed in international instruments. When the two German states joined the United Nations, the Four Powers stressed in a declaration that the membership of the two German states in the United Nations should in no way affect either the rights and responsibilities of the Four Powers or the related agreements, decisions and practices.¹²

It is an idle question whether international law on the rights of belligerent occupants provides a sufficient claim for the maintenance of such rights since both German states accepted those rights in successive treaties with the Four Powers. In fact, the responsibility of the Four Powers was considered by the Federal Republic of Germany as an essential safeguard against any attempt to an unilateral change of the existing status either of Germany as a whole, or Berlin in particular. Thus, the continued existence of the Four Powers' rights and responsibilities was considered as having three major legal implications. First, Berlin remained under the occupation and responsibility of the Western Allied Powers. Secondly, the competence for the final territorial settlement relating to Germany as a whole and its Eastern territories was reserved to a peace treaty. Thirdly, the process of German division and secession of the GDR remained provisional until a final settlement on Germany as a whole could be achieved with the Four Powers.

It remained an open question to what extent the continuing responsibility of the Four Powers concerning the external aspects of the German unification implied a right of consent, if not a right to decide on Germany's political and military status. Yet, the political unification of Germany, the final delimitation of its borders and its integration as a whole into the international security system were generally described as `external' aspects of the unification process, which fell within the realm of the Four Powers' responsibilities.¹³ The internal aspects of the German unification (in particular, the constitution of the united Germany), and the way in which the unification would be achieved was considered as a matter within the exclusive domain of the two German states.

From a legal point of view, it is not easy to find a convincing legal argument for continuing rights of the Four Powers to determine the status of a unified Germany. The responsibility of the Four Powers relating to Germany as a whole - independently from its contractual basis - is inseparably connected with the rights and duties of the allied occupants. The legal nature of the German occupation regime, however, has always been controversial. The Allies did not consider themselves bound by the Hague Regulations on the rights of occupation powers annexed to Hague Convention IV concerning the laws and customs of war on land of October 18, 1907.¹⁴ Their declared aim was to effect a complete change of the political system in Germany, and to establish a new order preventing any further German aggression. Consequently, the regime established by the Allies was defined as a new regime of `international administration' rather than a regime of occupation under traditional rules of public international law.<sup>15</sup> Under such a regime the Allies were authorized to exercise much wider powers than allowed to the military authorities of a belligerent occupant. This would explain the assumption by the occupation powers of `supreme authority', including all the powers possessed by the German Government as well as their claim of continuing responsibility long after both the hostilities had ceased and a new order had been established in Germany.

It is doubtful, however, if the theory of `international administration' had gained sufficient international recognition to justify continuing responsibility, decades after the end of a military conflict. Both German states had been admitted to the United Nations and, therefore, been recognized as peace-loving nations. Both German states had been integrated into political and military alliances. The concept of international administration may explain a continuing responsibility of the Four Powers for the final settlement of unsolved matters arising from World War II. It did not provide a sufficient legal basis, however, to impose conditions for the unification of the two German states or to decide upon their legal status. So it is that the Friendly Relations Declaration explicitly states the principle that each state has the right freely to choose and develop its political, social, economic, and cultural system. As a mode of implementing the right of self-determination the Declaration mentions `the establishment of a sovereign and independent state, the free association or integration with an independent state or the emergence into any other political status freely determined by a people'.¹⁶ After some confusion in the beginning of the negotiations and in the legal literature,¹⁷ the Western Allies consequently agreed that it is up to the Germans to decide upon their military allegiances. Article 6 of the Final Settlement explicitly declares that the right of the united Germany to belong to alliances, with all the rights and responsibilities arising therefrom, shall not be affected by the treaty.

As a result of the termination of all rights and responsibilities of the Four Powers the continuing presence of the allied armed forces in German territory rests upon the agreements concluded with the Western Allies and the Soviet Union. The Final Settlement provides for a complete withdrawal of the Soviet armed forces from German territory. Until that time, Article 5 provides that only those German military units not integrated into NATO will be stationed in east Germany and Berlin as armed forces of the united Germany. During that period armed forces of other states will not be stationed in that territory or carry out any other military activity there. For the duration of the presence of Soviet armed forces in East Germany and Berlin, armed forces of the Western Allies will, upon German request, remain stationed in Berlin. The number of troops and the armament as well as the equipment of the allied forces stationed in Berlin will not be greater than at the time of the signature of the Treaty and new categories of weapons will not be introduced. Following the completion of the withdrawal the Soviet armed forces, there will be no restriction to station German military forces in East Germany with the exception of nuclear weapon carriers.¹⁸

A corresponding agreement has been concluded by an exchange of diplomatic notes between the Federal Republic and the British, French and US Governments on September 25, 1990. The continuing presence of allied forces is agreed upon for a limited period of time as a contribution towards the security of Berlin. The number of troops as well as their armament is not to be reinforced. The allied armed forces have to coordinate all military activities with the competent German authorities which nevertheless have the main responsibility of guaranteeing the security of Berlin. Thus, the allied armed forces remain on German territory as invited guests, not as a military occupation power, as long as their presence is agreed upon by all parties. Every party of the agreement may cancel the agreement or ask for a modification one year after the agreement has entered into force.

On October 12, 1990 a treaty between the Federal Republic of Germany and the Soviet Union about the conditions on the withdrawal of Soviet troops from German territory was concluded.¹⁹ An additional treaty of October 9, 1990 deals with the financial consequences arising from the withdrawal of Soviet armed forces.²⁰ The Soviet Union accepted the obligation not to reinforce its troops or armament stationed in East Germany. The total withdrawal of the Soviet troops from Germany,

including Berlin, is to be completed by the end of 1994. In Berlin, Soviet troops are no longer allowed to hold military manoeuvres; while in the territory of the former GDR such manoeuvres may still be held within certain limits set by ad hoc arrangements with the competent German authorities. In principle, German jurisdiction applies; Soviet armed forces maintain, however, jurisdiction with regard to members of their armed forces and their relatives with regard to official activities of or acts against the Soviet Union or the Soviet armed forces (Article 18). Within their premises the Soviet armed forces maintain police and disciplinary power. This does not cover acts to prevent the enforcement of ordinary German jurisdiction over German nationals. Thus, the refusal of the Soviet military authorities to hand over Erich Honecker for trial from a Soviet military hospital can hardly be brought into line with the agreement. The agreement provides in Article 25 for an arbitration proceeding by a joint German-Soviet commission.

Concerning the status of the armed forces of the Western Allied Powers, the Federal Government has made clear by an exchange of diplomatic notes of September 25, 1990 that the existing treaties on the presence of NATO integrated troops of 1951 and 1959 remain in force. Any military activities of the armed forces in the former GDR, however, need explicit consent of the German authorities.

In Article 3 of the Final Settlement, both German states also reaffirmed their renunciation of the manufacture and possession of, and control over, nuclear, biological, and chemical weapons. They declared that the united Germany too, will abide by these commitments. In particular, the obligations arising from the treaty on the non-proliferation of nuclear weapons of July 1, 1968, will continue to apply to the united Germany. This provision is little more than a clarification of the existing legal situation, since both the Federal Republic and the GDR had constantly affirmed their renunciation of ABC weapons.²¹ However, a novel restriction can be found in Article 3 paragraph 2 of the Final Settlement, which contains a report about a statement made by the Federal Government at the Vienna negotiations on conventional arms, whereby it undertakes to reduce the strength of the armed forces of the united Germany to 370,000 within three to four years. The form in which this commitment has been included in the Final Settlement is remarkable. The undertaking to reduce the armed forces has to be considered as a unilaterally binding commitment by Germany rather than an ordinary contractual obligation in the Final Settlement. Such a commitment must be seen in the context of the general negotiations on the reduction of conventional armed forces in Europe - as is made clear by the following clause in which the Federal Government assumes that in follow-on negotiations the other participants will render their contribution to enhancing security and stability in Europe. However, the fact that the commitment has been included into the Final Settlement brings it into the framework of the rights and obligations of this agreement. Shortly after the Treaty on the Final Settlement a further Treaty between the Federal Republic and the USSR on Good Neighbourhood, Friendly Relations, and Cooperation of November 9, 1990 as well as an additional Treaty on Economic Cooperation and an Inter-Governmental Agreement on Cooperation in Social and Labour-Relation Matters were concluded.²² The first-mentioned treaty reaffirms the obligation to respect each other's territorial integrity and the inviolability of the existing borders. Both parties formally declare that they have no territorial claims against each other or against any other state and will not raise any territorial claims in the future. Unlike the legal situation in the former German territories in Poland, an explicit boundary agreement is not provided for in the treaty since the Soviet Union has taken the position that it has already acquired territorial sovereignty over the former German territory in the Soviet Union (Eastern Russia). Remarkably the preamble refers to human rights and fundamental freedoms as a common European heritage and the necessity to build up an new Europe based on common values and to establish a lasting and just order in Europe.

B. The Status of the Eastern Territories

Article 1 of the Final Settlement makes clear that with the German unification the question of its borders shall be finally determined. The borders of the united Germany as described in the Settlement shall be definitive. The confirmation of the definitive nature of the borders of the united Germany is considered as an `essential element of the peaceful order in Europe'. This provision embraces a final settlement of all territorial questions arising from World War II. The united Germany, as Article 1 para 3 of the Settlement provides - has no territorial claims whatsoever against other states and shall not assert any in the future. Concerning the Eastern border the existing border between Poland and Germany is to be confirmed in a binding treaty. The Settlement does not leave any discretion in that question.

These provisions are certainly one of the key elements of the Two-plus-Four-Agreement. The legal status of the Eastern territories of the German Reich was, until now, to await a final determination in a peace treaty. The status of those territories `under foreign administration' was officially considered as being unchanged by the Moscow and Warsaw Treaties of 1970. Although these treaties had affirmed the inviolability of the existing Western borders of Poland and contained a renunciation of any territorial claims, the Federal Republic took the position that it concluded these treaties in its own name and therefore a united Germany would not be bound by them.²³ In addition, the obligation concerning the existing borders was interpreted as a recognition of the exercise of territorial jurisdiction of Poland and not as a final territorial delimitation, which could be achieved only in a peace treaty with a united Germany. The argument that the Federal Republic could not bind a united Germany, however, was never very convincing since the Federal Republic considered itself as legally identical with the German Reich.²⁴ The Federal Constitutional Court, however, supported the German position by deciding that neither treaty could be interpreted as a final disposition on the territorial status of Germany as a whole.²⁵

The Federal Government constantly maintained that all declarations and commitments undertaken with respect to the former Eastern German territories were only of preliminary character. To some extent, this position found support in practice of the Western Allied Powers, which had invariably declared that any rectification of the West German frontiers `cannot be considered as a final determination unless confirmed by a peace settlement'.²⁶ Thus, although it may be argued that the Federal Republic, with the Warsaw and Moscow agreements, had already given a binding commitment that the Polish western border would no longer be challenged and that in a future peace agreement the recognition of the existing boundary line would be affirmed,²⁷ the German-Polish Boundary Treaty of November 14, 1990 cannot be considered merely as being of declaratory significance. In legal terms it is the implementation of the final peace settlement of the Two Plus Four Treaty of September 12, 1990 settling finally, in accordance with the Allied Powers, all questions relating to the territorial status of a unified Germany.

The Final Settlement as well as the treaty of November 1990 between Germany and Poland on the recognition of the existing borders has the effect of changing the territorial status of the former Eastern German territories. Several questions arise relating to the nationality of the former German population of these territories, their property, and their future status as members of a minority in Poland.

C. Effects upon Nationality

The effect of the Warsaw Treaty upon nationality and the property of the German population had in fact been one of the main issues in the proceedings of the Federal Constitutional Court in 1975 on the Warsaw Treaty. Article 116 of the Basic Law defines a German within the meaning of the constitution `as a person who possesses German citizenship [usually acquired by descent] or who has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German stock or as the spouse or descendant of such person'. This concept may be described as an `open door' granting ethnic Germans who had taken refuge in the territory of the Reich of 1937 a right to move into Germany. As a result in the last two years 700,000 Germans of foreign citizenship have immigrated into the Federal Republic of Germany. The nationality concept is very much along the same lines.²⁸ According to Articles 16 and 116 of the Basic Law²⁹ all German citizens living in the former Eastern territories who had acquired by birth German citizenship even in the second or third generation have to be treated as German citizens regardless of the fact that the Federal Republic could not exercise protection as long as these persons remained within the jurisdiction of Poland or the Soviet Union.³⁰ The Federal Supreme Court decided in 1979 that the term `nationality of Sudeten-Germans' (Sudetenland is now a part of Czechoslovakia) is not affected by the German-Czechoslovakian treaty of 1973.³¹

The plaintiffs in the 1975 proceedings challenging the constitutionality of Warsaw and Moscow Treaties argued that the change of territorial status of the Eastern territories had - according to international law - terminated their German nationality. The Court rejected this argument by referring to the limited effect of the territorial provisions of the treaty and the declared intention of the Federal Government that the treaty was not intended to abridge rights granted by German laws and, in particular, German citizenship.

There is a diversity of opinions as to the effects of a transfer of territory on nationality.³² The view `that the population follows the change of sovereignty in matters of nationality' and that `the affected population will normally acquire the nationality of the successor state'³³ has been supported by a reference to the Versailles minority treaties and similar instruments concluded in connection with the peace treaties after World War I. Under these treaties German nationals automatically became Polish nationals unless they made a declaration stating that they abandon Polish nationality.³⁴ It is very doubtful, however, whether state practice and theory supports a rule of automatic change of nationality following a transfer of territorial sovereignty.³⁵ Even if one accepts the assumption that `the precedent value of such provisions is considerable in view of their uniformity and the international character of the deliberations preceding the signature of these treaties',³⁶ an automatic change of nationality implying a loss of the original nationality is not called for. The rule to be deduced from the state practice is rather the existence of a right of the successor state to confer its nationality upon the population of the newly acquired territory. This may even include an automatic acquisition of citizenship according to the law of the successor state. It does not, however, necessarily imply a loss of original nationality.

Concerning the question of an automatic change of nationality, state practice does not provide a consistent pattern of rules. In many cases a right to opt for the new or the old nationality has been granted. The Federal German Courts had to decide in many cases upon the effects of territorial changes upon nationality. They have constantly held that in recent times the idea has taken root in international law that in cases of acquisition and loss of nationality the manifested will of the person affected shall not entirely be disregarded. The Supreme Court held that:

Where territories are ceded it is becoming the practice to grant the population a right of option. This practice conforms to the more enlightened opinion that everybody has a right to the free development of his personality and that it would be incompatible therewith to regard individuals simply as an object of domestic legislation, international treaties, and rules of international law.³⁷

It is, however, left to individual states to adopt the rules they deem useful when entering into treaties and enacting municipal law.³⁸ Even more cautiously the Federal Constitutional Court has concluded that there is no general rule of public international law to the effect that the population affected by the creation of a new state by severance from an existing state must be given the option to choose between the nationality of the new state and the nationality of the old state.³⁹ Carefully analysing the existing state practice and theory on the subject, the Court came to the conclusion that international law does not recognize the existence of any general rules providing for a change of nationality in the case of territorial transfer.⁴⁰

The question, however, has to be solved whether there is still a legal basis for treating part of the German population in the former Eastern German territories as German nationals. Territory, as Brownlie has pointed out, is not an `empty plot' but connotes `population, ethnic groupings, loyalty patterns, national aspirations'.⁴¹ Similarly Weis, though very cautious in evaluating state practice, concludes that one may speak of a positive rule of international law on nationality to the effect that, under international law and provided the territorial transfer is based on a valid

title, the predecessor state is under an obligation vis-à-vis the successor state to withdraw its nationality from the inhabitants of the transferred territory if they acquire the nationality of the successor state.⁴² A very similar position has been taken by the Federal Supreme Court when deciding upon the effects of the reconstitution of the Austrian Republic. The Court held that the final abandonment of territorial sovereignty necessarily entails the severence of the ties between the resident population of the territory concerned and the old polity, because according to international law, nationality can be granted and consequently also maintained only by virtue of generally recognized connections with the state.⁴³ It follows that the transfer of German territory does not imply an automatic change of nationality. Rather, it entails a basic obligation to withdraw the right to claim German nationality from former German citizens who habitually reside on those territories.

D. Effects upon Property and Reparations

International law prohibits arbitrary expropriation without compensation. Expropriations from German citizens living in the former Eastern German territories decided by Polish and Soviet authorities immediately after World War II without providing for any kind of compensation, regardless of any affiliation of the affected persons with criminal activities and exclusively on the basis of their German nationality, were manifestly illegal.

In the case concerning the constitutionality of the Moscow and Warsaw Treaties the plaintiffs argued that the Federal Republic had agreed to such expropriations and the following expulsion. The argument, however, was rejected by the Constitutional Court since the Federal Government could show that the treaties were not intended in any way as a recognition of the illegal measures undertaken by Polish or Soviet authorities against the German population. The Court left open whether `under the influence of the existing situation former property rights are replaced by claims of compensation or restitution'.⁴⁴ Such claims, the Court continued, referring to a statement of the Federal Government, could be deduced from general rules of public international law on state responsibility. State practice does not indicate whether the rules on protection of property, as well as those on basic human rights, are applicable when retaliatory measures are taken against the population of an aggressor state. It is, however, an established rule of public international law that the civilian population of a territory involved in a conflict may not be the target of retaliatory measures. This applies a fortiori when hostilities have ceased.

The confiscations of 1945-6, in combination with the expulsion of a large part of the German population, thus, have no basis in public international law and should not be recognized as legally valid for reasons of international justice.⁴⁵

The Federal Government therefore may exercise diplomatic protection in favour of those German nationals who have suffered measures violating recognized principles of public international law. It has been argued that claims arising from illegal expropriations have ceased to exist due to a mutual settling of accounts.⁴⁶ The Constitutional Court, however, in a very detailed analysis of all the relevant instruments relating to the Warsaw and Moscow Treaties, has shown that neither treaty allows any firm conclusions as to a settlement of accounts. There is not much which can be added to the arguments of the Court. When the Warsaw Treaty was signed, Poland and the Soviet Union had waived all claims for reparations against Germany as a whole by a declaration of August 23, 1953.⁴⁷ This waiver was based upon the agreement at the Potsdam Conference that Polish claims for reparations were to be satisfied by the Soviet share for reparation payments.⁴⁸ The declaration by the Polish Government stated that Germany had already paid substantial reparations and that the Polish Government therefore renounced all claims, in order to contribute to a peaceful solution of the German question. The waiver was explicitly confirmed in the negotiations between the two states on the Warsaw Treaty. Thus, Poland has, as a result of former reparation payments, waived all claims for reparations which may have been filed as a result of the German measures during World War II.⁴⁹

8 Bundesgesetzblatt 1990 II, 1317, also (1990) ILM, 1187.

9 British and Foreign State Papers, Vol. 145, 852.

10 For a survey see Ress, `Legal Status of Germany after World War II', 10 EPIL (Encyclopedia of Public International Law) (1987) 151.

11 Cf. Schweisfurth, `Ohne einen Friedensvertrag wird alles bleiben, wie es ist', in 2 Sicherheit und Frieden (1985) 76-80.

12 12 ILM (1973) 217.

13 Schweisfurth, `Germany, Occupation after World War II', 3 EPIL (1982) 197; Frowein, `Die Verfassungslage Deutschlands im Rahmen des Völkerrechts', 49 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (1990) 11.

14 Schweisfurth, `Ohne einen Friedensvertrag wird alles bleiben, wie es ist', in 2 Sicherheit und Frieden (1985) 196.

15 M. Virally, L'administration internationale de l'Allemagne (1948) 23, 26; cf. Schweisfurth, supra note 12, at 191, 196 (with further references).

16 Bulletin of the Federal Government of 16 November 1990, 1394.

17 See, e.g., Frowein, `Die Verfassungslage Deutschlands im Rahmen des Völkerrechts', 49 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (1990) 13, who refers to the right of self-determination while conceding at the same time a responsibility of the Four Powers relating to all `internationally relevant questions'.

18 Article 5, paragraph 3.

19 Bulletin of the Federal Government of 17 October 1990, No. 123, 1284.

20 Bulletin of the Federal Government of 17 October 1990, No. 123, 1281.

21 See protocol No. III of 23 October 1954 on the control of armaments to the West European Union Treaty, Annex I, Bundesgesetzblatt 1955 II, 266.

22 Bulletin of the Federal Government of 15 November 1990, No. 133, 1379, 1382, 1387.

23 For the text of both treaties see Bundesgesetzblatt 1972 II, 354, 362; cf. Ress, supra note 9, at 191; Klein, `Viermächteproblematik und Rechtsstellung der deutschen Ostgebiete', in Meissner and Zieger (eds), Staatliche Kontinuität unter besonderer Berücksichtigung der Rechtslage Deutschlands, 129; for a Polish view see Skubiszewski, `Poland's Western Frontier and the 1970 Treaties', 67 AJIL (1973) 23.

24 Tomuschat, `Die staatliche Einheit Deutschlands: Staats- und völkerrechtliche Aspekte', in Friedrich-Ebert-Stiftung (ed.), Recht und Politik (1990) 25; Schreuer, `The Legal Status of the Polish Boundaries', paper presented at the conference on `The Changing Political Structure of Europe, Aspects of International Law' (Amsterdam 14th and 15th December, 1990).

25 40 BVerfGE 141, 169 (decisions of the Federal Constitutional Court).

26 Rauschning, `Beendigung der Nachkriegszeit mit dem Vertrag über die abschließende Regelung in bezug auf Deutschland', 75 Deutsches Verwaltungsblatt, 1281 with further references.

27 See Schreuer, `The Legal Status of the Polish Boundaries', supra note 23.

28 See Hailbronner, `Citizenship and Nationhood in Germany', in R. Brubaker (ed.), Immigration and the Politics of Citizenship in Europe and North America (1989) 67.

29 Article 16 prohibits any deprivation of German citizenship.

30 36 BVerfGE 1, 30; 40 BVerfGE 141, 175.

31 BGHZ 75, 32 (decisions of the Federal Supreme Court).

32 Cf. Randelzhofer, `Nationality', 8 EPIL (1985) 420.

33 I. Brownlie, Principles of Public International Law (4th ed 1990) 661, 558.

34 Laws Concerning Nationality (1954) 586.

35 See Randelzhofer, supra note 31.

36 I. Brownlie, Principles of Public International Law 662.

37 BGHSt 9, 175 (decisions of the Federal Supreme Court in Penal Matters); see 4(1970) Fontes Iuris Gentium, Series II, Sectio II, 75 (Decisions of the Superior Courts of the Federal Republic of Germany relating to public international law, ed. by Max Planck Institute of Comparative Public Law and Public International Law, Heidelberg).

38 1 BVerwGE 213 (decisions of the Federal Administrative Court); see 4(1970) Fontes Iuris Gentium, Series II, Sectio II, 74

39 4 BVerfGE 322; 4(1970) Fontes Iuris Gentium, Series II, Sectio II, 75.

40 1 BVerfGE 322; 4(1970) Fontes Iuris Gentium, Series II, Sectio II, (see footnote 36), 73.

41 I. Brownlie, Principles of Public International Law 664.

42 F. Weis, Nationality and Statelessness in International Law (2nd ed. 1979) 143.

43 BGHSt. 9, 175 (decisions of the Federal Supreme Court in Penal Matters); 4(1970) Fontes Iuris Gentium, Series II, Sectio II, 77.

44 40 BVerfGE 141, 167; see Blumenwitz, `Die vermögensrechtlichen Folgen der Ostverträge', XIII Jahrbuch für Ostrecht (1971) 179, 196.

45 Cf. for a different view Czaplinski, `Vermögensrechtliche Probleme in den Beziehungen' VRP-BRD', 7 Polnische Weststudien (1988) 96, 134.

46 Kimminich, Juristenzeitung (1971) 485, 489.

47 Declaration of the Polish People's Republic, 9 Zbior Documentow (1953) 1830, quoted in: 49 BVerfGE 169.

48 See part IV of the Potsdam Conference Protocol of 2 August 1945, Official Bulletin of the Allied Control Council, suppl. No. 1, 13.

49 See Rumpf, `Die deutsche Frage und die Reparationen', 33 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1973) 344, 351.

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