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Case:
BVerfGE 77, 137 2 BvR 373/83 Teso-Beschluß GDR-Citizenship
Date:
21 October 1987
Judges:
Zeidler, Dr.Dr.h.c. Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Grasshof
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. It follows from the precept of maintenance of the unity of German nationality (Articles 116 (1), 16 (1) Basic Law), which is a normative specification of the reunification precept contained in the Basic Law, that acquisition of the citizenship of the German Democratic Republic must within the limits of ordre public for the legal system of the Federal Republic of Germany be attributed the legal effect of acquisition of German nationality.

2. Only if separation of the German Democratic Republic from Germany came about through the exercise of the right of self-determination could the sovereign power exercised in the German Democratic Republic be regarded from the viewpoint of the Basic Law as a foreign State power separate from Germany.

3. The acquisition of German nationality following acquisition of the citizenship of the German Democratic Republic is not barred by obligations of the Federal Republic of Germany whether in general international law or from its treaty links with the German Democratic Republic.

4 The assessment in international law of Germany's legal position by the competent State organs of the Federal Republic of Germany could be opposed by the Federal Constitutional Court only were it plainly against international law (cf. BVerfGE 55, 349 [368 f.]).

Order of the Second Senate of 21 October 1987 - 2 BvR 373/83 -
in the proceedings on the constitutional complaint of T.
against
a) the judgment of the Federal Administrative Tribunal of 30 November 1982 - 1 C 72.78,
b) the judgment of the Cologne Administrative Tribunal of 4 February 1976 - 9 K 914/75,
c) the order of the Town Clerk of the City of Cologne of 10 December 1974 in the form of the ruling on objection of 24 March 1975

DECISION:

1. The order of the Town Clerk of the City of Cologne of 10 December 1974, the judgment of the Administrative Tribunal of Cologne of 4 February 1976 - 9 K 914/75 - and the judgment of the Federal Administrative Tribunal of 30 November 1982 - 1 C 72.78 - infringe the complainant's fundamental rights under Articles 16 (1), 116 (1) and Article 3 (1) taken together with Articles 8 (1), 9 (1), 11 (1) and 12 (1) of the Basic Law. The Federal Administrative Tribunal's judgment is set aside. The case is referred back to the Federal Administrative Tribunal.

2. The Federal Republic of Germany shall reimburse the necessary expenditure to the complainant.

EXTRACT FROM GROUNDS:

The present proceedings concern essentially the question whether naturalization in the German Democratic Republic (GDR) has the legal consequence that the naturalized person also thereby acquires German nationality within the meaning of Article 116 (1), 16 (1), Basic Law.

A.

I...

The Administrative Tribunal rejected the complainant's action for a finding that he possessed the nationality of the Federal Republic of Germany. On appeal the Administrative Appeals Tribunal for the Land of North Rhine Westphalia altered the judgment of the court of first instance and obliged the issue of a certificate of nationality to the complainant, suspending the contrary orders of the Town Clerk of the City of Cologne.

...

4. On an appeal on points of law by the defendant and the representative of the public interest, the Federal Administrative Tribunal restored the judgment of the court of first instance by judgment of 30 November 1982.

...

II.

With his constitutional complaint, directed against the decisions of the administrative authorities and Administrative Tribunal of Cologne and of the Federal Administrative Tribunal, the complainant petitions for issue to him of a certificate of nationality of the Federal Republic of Germany.

...

In justification he states that he acquired the citizenship of the German Democratic Republic at latest on delivery of the identity card of the German Democratic Republic for the German nationals on completion of his 14th year in 1954 in accordance with para.1 (c) of the Citizenship Act of the German Democratic Republic of 20 February 1967 taken together with para.3 of the Implementing Order of that Act. At the same time, "general German nationality" had been conveyed to him. The Federal Constitutional Court's judgment on the Basic Treaty had binding effect such that the citizenship provisions of the German Democratic Republic had to be recognized, within the limits of the telos of the Constitution and ordre public interpreted in a narrow sense. It was not necessary for the citizenship regulations of the German Democratic Republic to correspond with the Citizenship and Nationality Act. Both States in Germany should be recognized as having the right to regulate German nationality in their sphere of jurisdiction on an equal footing. The point of reference for competence was domicile or usual residence. Were one to focus exclusively on Federal German legislation as a criterion for acquisition of German nationality then this would be unlawful interference with the jurisdictional sovereignty of the other German State, denial of unitary German nationality and thus a contravention of the precept of reunification.

...

III.

The Federal Minister for the Interior regards the constitutional complaint as unjustified. The complainant had not become German even taking the citizenship law of the German Democratic Republic as a basis.

...

B.
....

C.

The constitutional complaint is justified. The decisions challenged infringe the complainant's fundamental rights under Article 16 (1), first sentence Basic Law, taken together with Article 116 (1) Basic Law, and his entitlement to equal treatment under Article 3 (1) Basic Law taken together with the fundamental rights pertaining to Germans.

The complainant was at the date of relevance for the decision a German national within the meaning of the Basic Law. Refusing to find that he was a German national would have the effect of deprivating him of his nationality.

I.

1. The complainant acquired German nationality neither by naturalization on the part of the Federal Republic of Germany nor directly in virtue of the Citizenship and Nationality Act which by Article 123 (1) Basic Law continues to apply in the sovereign territory of the Federal Republic of Germany. The fact that in 1970 an identity card and in 1972 a passport of the Federal Republic of Germany were issued to the complainant did not bring about naturalization. The Citizenship and Nationality Act does not have naturalization by mere delivery of a German identity card or passport.

2. The complainant acquired the citizenship of the German Democratic Republic, at least within the time of relevance for this decision. The Administrative Appeals Tribunal too assumed that it had been acquired; the Federal Administrative Tribunal did not question this assumption on grounds connected with points of law.

Accordingly, as far as the proceedings of constitutional complaint are concerned it need not be considered whether this acquisition took place directly in virtue of a statute.

...

Acquisition of the citizenship of the German Democratic Republic did at any rate take place in some way. For deciding the constitutional complaint, it makes no difference whether the complainant had acquired the citizenship of the German Democratic Republic directly under a statute of the German Democratic Republic or by an individual act of its authorities.

3. Acquisition of the citizenship of the German Democratic Republic by the complainant meant that he simultaneously acquired German nationality within the meaning of Article 16 (1), 116 (1) Basic Law. This legal effect did not arise in virtue or on the basis of one of the ways of acquisition in the Citizenship and Nationality Act; the mode whereby the complainant acquired the citizenship of the German Democratic Republic does not have anything corresponding to it in the modes of acquisition in the Citizenship and Nationality Act or other legal rules of the legal system in force in the sovereign territory of the Federal Republic of Germany. However, it follows from the precept of maintenance of the unity of German nationality (Article 116 (1), 16 (1) Basic Law), which is a normative specification of the reunification precept contained in the Basic Law, that acquisition of the citizenship of the German Democratic Republic is, within the limits of ordre public, to be attributed the legal effect for the legal order of the Federal Republic of Germany of acquisition of German nationality.

a) The Federal Constitutional Court has attributed legal significance to the preamble to the Basic Law and has in particular seen a constitutional "reunification precept" as being embodied therein (cf. BVerfGE 5, 85 [127 f.]; 36, 1 [17 f.]). The political organs are due broad freedom of action in working towards the objective of reunification; above all, the reunification precept cannot be taken as a basis for the demand that the organs of the Federal Republic take particular actions for this purpose (cf. BVerfGE 5, 85 [127 f.]). They must decide on their own responsibility by what political means and in what political ways they seek to reach that objective or at least come closer to it (cf. BVerfGE 36, 1 [18 ff.]). Thus, for instance, the Federal Constitutional Court could oppose the legislator only if a measure manifestly stood de iure or de facto in the way of reunification in freedom (BVerfGE 5, 85 [128]; 12, 45 [51 f.]; 36, 1 [17 ff.]).

b) The Senate has derived from the reunification precept, in addition to the obligation on the constitutional organs to "act through their policies to secure the objective" also a safeguard precept, namely to "refrain from anything that might jeopardize the reunification" (BVerfGE 36, 1 [18]). This safeguarding precept, specified for the sphere of nationality law applying in the Federal Republic of Germany in Articles 116 (1), 16 (1) Basic Law by the Constitution itself, has been overlooked by the Federal Administrative Tribunal in the present case.

The Parliamentary Council did not see the Basic Law as an act of new foundation of a State; it wanted to "give a new order to political life for a transitional period", until the "unity and freedom of Germany" in free self-determination was achieved (preamble to the Basic Law). The preamble and Article 146 Basic Law link the whole Basic Law to this objective: the constitutional legislator thereby made the will for Germany's national unity, threatened by the serious danger from the geo-political tensions that had arisen between the occupying powers, into a rule. The aim was to oppose the splitting of Germany into separate States as far as that was possible. It was the basic political decision of the Parliamentary Council, not to set up a new ("West German") State, but to understand the Basic Law as a reorganization of a partial area of the German State - its State power, its State territory, its State people. This concept of the political and historical identity of the Federal Republic of Germany is the basis for the Basic Law. The upholding of German nationality in Articles 116 (1), 16 (1) Basic Law and therefore of the existing identity of the State people of the German State is a normative expression of this conception and this basic decision.

c) It follows in particular from the safeguard precept that there is a constitutional duty to maintain the identity of the German State people. This duty is not restricted statically to the range of persons that were German nationals when the Basic Law came into force and to those that have later acquired German nationality under the Citizenship and Nationality Act and will still acquire it.

Article 116 (1), second phrase, Basic Law shows that the Basic Law assumes regulatory competence on questions of the German nationality of persons with a link with the territorial situation of the German Reich on 31 December 1937, that is, beyond the geographical area to which the Basic Law applies.

The safeguarding duty contained in the reunification precept of the Basic Law also commands the lasting maintenance of the unity of the German people as the bearer of the right of self-determination in international law as far as possible, with an orientation to the future. The Federal Administrative Tribunal's static approach throws this unity of the whole German people in its composition at any particular time as the bearer of the right of self-determination into question in principle; it runs counter to the precept of the Basic Law to uphold the unity of German nationality.

d) Accordingly, acquisition of the citizenship of the German Democratic Republic, even in ways that do not have any correspondence in the Citizenship and Nationality Act of 1913, in principle simultaneously brings about acquisition of German nationality within the meaning of the Basic Law of the Federal Republic of Germany. This legal effect for the legal order of the Federal Republic of Germany arises equally on acquisition of the citizenship of the German Democratic Republic directly in virtue of a legal norm in force there or following an individual act conferring citizenship.

e) This legal effect for the legal order of the Federal Republic of Germany is not as the Federal Administrative Tribunal thinks countered by the fact that the sovereign power exerted in this respect in the German Democratic Republic is not subject to the Basic Law. The Senate has repeatedly stated that the Basic Law assumes the continued existence of the German State people (BVerfGE 36, 1 [16 ff., 29 ff.]) and that the Federal Republic does not as far as its State people and territory are concerned cover the whole of Germany. Even after conclusion of the Basic Treaty, the German Democratic Republic is "another part of Germany", so that, for instance, its courts are "German courts" (BVerfGE 37, 57 [64]). It is only if separation of the German Democratic Republic from Germany came about through free exercise of the right of self-determination that the sovereign power exercised in the German Democratic Republic could from the viewpoint of the Basic Law be termed a foreign power separate from Germany.

f) This legal effect of naturalizations in the German Democratic Republic for the legal order of the Federal Republic of Germany with the consequence of acquisition of German nationality within the meaning of Article 116 (1), 16 Basic Law is subject to a constitutional limitation, through the ordre public of the legal order of the Federal Republic of Germany.

aa) In its decision of 31 May 1960 (BVerfGE 11, 150 [158 ff.]) concerning the question of enforcement of a penal judgment of the Erfurt District Court of 2 February 1953 for continued offences against the Act to protect intra-German trade of 21 April 1950 in the Federal Republic of Germany, the Senate found that the Soviet occupation zone could not "be seen as a foreign country in relation to the Federal Republic of Germany" and that the Judicial Assistance Act of the Federal Republic took it that penal judgments of courts in that zone, "as judgments of German courts", could also have effect in the Federal Republic of Germany, "but that the protection guaranteed by the fundamental rights and constitutional order of the Basic Law to the individual against the public power enters in also in respect of allowing the enforcement of such judgments". By way of judicial assistance too, nothing can take place that contradicts the Basic Law; that is forbidden by ordre public (op.cit. p.158 ff.; cf. also BVerfGE 1, 332 [341, 345 ff.]).

In the Brückmann case too, concerning the handing over of the complainant to the prosecuting authorities of the German Democratic Republic, the Senate explicitly took ordre public as the constitutional criterion for the admissibility of such handing over under the Judicial Assistance Act (BVerfGE 37, 57 [64 ff., 66]).

bb) In the context of nationality law, the content and mode of operation of ordre public are primarily determined from the basic legal evaluations of this very area of law, and in particular from the reunification precept of the Basic Law. The present case offers no occasion to define more narrowly the bounds that ordre public can set to acquisition of German nationality as a result of acquisition of the citizenship of the German Democratic Republic; in the complainant's case there is no objection to such acquisition from the viewpoint of the ordre public of the Federal Republic of Germany.

II.

The acquisition of German nationality by the complainant in consequence of his acquisition of the citizenship of the German Democratic Republic is not countered by obligations of the Federal Republic of Germany, whether in general international law or through its treaty links with the German Democratic Republic.

1. In general international law the definition of the range of its nationals by a State is subject to certain limits arising among other things from the existence and personal sovereignty of other States. The State may in particular not link nationality with other matters not adequately connected with it (cf. BVerfGE 1, 322 [329]; BVerwGE 23, 274 [278]; BGHSt 5, 230 [234]; 9, 53 [59]). It is not overstepping these bounds for the Federal Republic of Germany to regard citizens of the German Democratic Republic as belonging to the set of German nationals within the meaning of the Basic Law, but always only to act on the status given thereby where these persons arrive in the sovereign territory of the Federal Republic of Germany and accept or request such naturalization. Such a link, which does not in any way actualize the relationships of rights and duties vis-à-vis Germans living in the German Democratic Republic as its citizens that arise from their nationality, is at any rate not forbidden to the Federal Republic of Germany by international law. Its objective point of reference lies in the existing legal position of Germany, in particular in the fact that the German people has since the defeat of the German State in the Second World War been denied the right to decide in free self-determination as to its political form.

a) The German State was not extinguished in international law either by the capitulation of its armed forces, the dissolution of the last Reich government in May 1945 nor the assumption of "supreme authority with respect to Germany" including all powers of the German State authorities, by the four main victorious powers on 5 June 1945 (see the Official Gazette of the Control Council in Germany, Supplement no.1, p.7 ff.); the Four Powers instead explicitly declared that the assumption of this authority and powers did not effect the annexation of Germany. At the Potsdam Conference in August 1945 the heads of State and government of Britain, the Soviet Union and the United States of America decided to set up a council of foreign ministers with inter alia the object of "preparation of a peace settlement for Germany to be accepted by the government of Germany when a government adequate for the purpose is established" (see Report on the Tripartite Conference of Berlin, II. 3. II., Official Gazette of the Control Council in Germany, op.cit. p.13; France later joined the Potsdam decisions). Thus, the settlement of territorial questions such as the "final delimitation of the western frontier of Poland" was left for a peace settlement (op.cit. IX.b). Attempts by the Soviet Union to treat the Potsdam resolutions as definitive decisions were opposed by the United States (cf. e.g. the statements by American foreign minister Marshall at the Moscow Foreign Ministers Conference in 1947, documents on American Foreign Relations, vol.IX, January 1 - 31 December 1947 [1949], p.49).

As far as Germany's foreign affairs were concerned, the governments of the four main victorious powers themselves exercised "supreme authority in Germany" (cf. F.A.Mann, JZ 1967, p.585 ff.). Thus, agreements were concluded with a number of States that had remained neutral in the war as to the liquidation of German assets. The three Western powers acted here also in the name of the "Government of the German Reich" (see preamble and Articles XII, XV of the Agreement with Spain of 10 May 1948, United Nations Treaty Series, vol.140 [1952], p.130 ff., which came into force on the day of signature).

Again, in the context of international organizations that Germany had joined before the Second World War the occupying powers safeguarded Germany's legal position (cf. the negotiations at the Conference of the Universal Postal Union of 1947 in Paris, in: Union Postale Universelle, Documents du Congrès de Paris 1947, vol.II, [Berne 1948], p. LX, 902 ff., 906).

In Point 2c) of the Occupation Statute of the three Western occupying powers of 12 May 1949, the "foreign affairs, including international agreements made by or on behalf of Germany" were reserved for the occupying powers (AHC Official Gazette, annex no.1).

These legal proceedings show that the States involved assumed the continued existence of the German State up to that date.

b) The entry into force of the Basic Law for the Federal Republic of Germany on 23 May 1949 and the Constitution of the German Democratic Republic of 7 October 1949 altered nothing as to the continued existence of the German State; both processes failed to amount to a situation in international law of the disappearance of the State.

aa) Neither the Basic Law itself (C I 3 c above) nor the State organs of the Federal Republic of Germany set up on its basis have treated this process as the disappearance of the German State. The Federal Republic of Germany instead regarded itself from the outset as identical with the German Reich as a subject of international law. Nothing has been able to change this identity of subject in the fact that the territorially related sovereign power of the Federal Republic of Germany is restricted to the geographical area of application of the Basic Law. Even a definitive change in the status of parts of its territory does not in international law change the identity of a State subject of international law.

The identity of the Federal Republic of Germany - in these territory-related limitations - with the German State has been recognized at the level of international law by many States. For instance, the parties to the London Agreement on German External Debts of 27 February 1953 (BGBl. II p.333 ff.) take the position that the Federal Republic of Germany is liable for the commitments of "Germany" (see numerous recitals in the preamble) - it was not the assumption of debt or even merely liability for the commitments of a debtor State that had disappeared that was agreed. The re-application of many pre-war treaties with Germany practised by the Federal Republic of Germany with the Contracting Parties to these treaties interrupted by the Second World War is to be assessed in the same way; they did not mean the conclusion of a new treaty with the legal successor on the German side - as would have corresponded to the rules of succession to States in international law, apart from territorially rooted treaties and certain ones regarding status - but the continuation of it, of the same treaty relationship, which had merely been suspended, between the same original parties. Correspondingly, the re-application declarations by the State organs of the Federal Republic of Germany were not dealt with according to the constitutional rules for conclusion of international treaties (cf. Article 59 Basic Law). In other respects too, the State organs of the Federal Republic of Germany have continually presumed the identity as a subject of international law of the Federal Republic with the German State founded in 1871.

On this see the statements of the Federal Chancellor during the debates on the German Treaty in the German Bundestag (Session of 15 December 1954, Sten.Ber., p.3122 [B]; cf. also the government's explanatory statement on the Treaty in the version of 26 May 1952, BTDrucks. 3500, I. WP, Annex 4, p.6), the government statements of the Federal Chancellor of 22 and 23 September 1955 (Deutscher Bundestag, Sten.Ber., p.5643 ff. and 5659) and of the Federal Minister for Foreign Affairs of 28 June 1956 (Deutscher Bundestag, Sten.Ber., p.8412 ff., 8421) and the case law of the Federal Constitutional Court (BVerfGE 2, 266 [277]; 5, 85 [126]; 6, 309 [336, 363 f.]).

bb) The Soviet Union and the German Democratic Republic too started in 1949 from the basis of the continued existence of the German State. This is clearly indicated by the Constitution of the German Democratic Republic of 7 October 1949, in force until the Constitution of 9 April 1968.

It states, in Article 1 (1):
"Germany is an indivisible democratic republic; it is built up from the German Länder.";

in (4):
"There is only one German nationality"

and in Article 118 (1):
"Germany constitutes a single customs and trading area, surrounded by a common customs frontier."

The Decree of the Presidium of the Supreme Soviet of the USSR of 25 January 1955 on termination on the state of war with "Germany" states inter alia:
"1. The state of war between the Soviet Union and Germany is terminated, and peaceful relationships areinstituted between them.

. . .

3. The announcement of the termination of the state of war with Germany changes nothing as to its international obligations and does not affect the rights and duties of the Soviet Union arising out of the existing international agreements of the Four Powers concerning Germany as a whole" (translated from German translation in H.Mosler/K.Doehring, Die Beendigung des Kriegszustandes mit Deutschland nach dem Zweiten Weltkrieg [1963], p.397).

After 1949 too, the Soviet Union continued towards the German Democratic Republic to maintain its legal positions arising out of four-power status in relation to Germany as a whole and Berlin, and in relation to a peace settlement for Germany.

Thus in the Soviet government's declaration on the granting of sovereignty to the German Democratic Republic of 25 March 1954 (von Münch, Dokumente des geteilten Deutschland, vol 1 [1968], p.329); in the preamble of the treaty on relationships between the German Democratic Republic and the Union of Socialist Republics of 20 September 1955 (GBl. DDR 1955 I p.198); in Article 9 of the Treaty of Friendship, Mutual Assistance and Cooperation between the German Democratic Republic and the Union of Soviet Socialist Republics of 12 June 1964 (GBl. DDR 1964 I p.132 ff.), in Article 10 of the Treaty of 7 October 1975 between the two States (GBl. DDR 1975 II p.238). Likewise in the preamble to the Four-Power Berlin Agreement of 3 September 1971 (von Münch op.cit., vol.2 [1974] p.102 ff. and in the Four-Power Declaration of 9 November 1972 on membership of the two German States in the United Nations (cf. International Legal Materials, vol. III, 1973, p.217), Germany's four-power status is reserved.

cc) The three main Western victorious powers also continued to take the continued existence of the German State as a basis. The New York Declaration of 18 September 1950 states that they

"regard the government of the Federal Republic of Germany as the only German government freely and legitimately constituted and therefore entitled to speak for the German nation in international affairs". An unpublished "interpretative minute" produced at the same time (on this see Mann, op.cit., p.622 and Bathurst/Simpson, Germany and the North Atlantic Community [1956] p.188) states that the declaration "was based on the premise that the German state continues to exist; that the formula recognised the provisional character of the Federal Republic by stating that the status which is recognised is 'pending the peaceful reunification of Germany'; and that it did not therefore constitute recognition of the Government of the Federal Republic as the de jure government of all Germany".

The Western powers too ended the state of war with Germany, in the course of 1951. Their legal view that Germany continued to exist as a subject of international law is attested in many other procedures.

An example is the statement by American Foreign Minister Herter at the Geneva Foreign Ministers' Conference of 1959 (Department of State Bulletin 1959, vol.40, p.819 ff.). In their declaration of 26 June 1964 on the Treaty between the GDR and the USSR of 12 June 1964 on friendship, mutual assistance and cooperation (GBl.DDR 1964 I p.132 ff.), the Three Powers stated inter alia that:

"2. West Berlin is not an 'independent political unit' . . .
3. The Three Governments consider that the Government of the Federal Republic of Germany is the only German government freely and legitimately constituted and therefore entitled to speak for the German people in international affairs. The Three Governments do not recognize the East German regime nor the existence of a state in eastern Germany. As for the provisions related to the 'frontiers' of this so-called state, the Three Governments reiterate that within Germany and Berlin there are no frontiers but rather a 'demarcation line' and the 'sector borders' and that, according to the very agreements to which the agreement of June 12 refers, the final determination of the frontiers of Germany must await a peace settlement for the whole of Germany" [Dept. of State Bull., vol 51, 1964, No.1307, p.44 f.].

In 1985 the British foreign minister gave the following formal declaration in re The Queen v. Secretary of State for Foreign Affairs - Ex parte Günther Trawnik and Louise Reimelt (QBDCF 59/85):
"I, Sir Richard Edward Geoffrey Howe, Knight, Her Majesty's Principal Secretary of State for Foreignand Commonwealth Affairs hereby certify pursuant to section 21 of the State Immunity Act 1978, that Germany isa state for the purposes of Part I of the State Immunity Act 1978, and that the persons to be regarded for thepurposes of Part I of the said Act as the Government of Germany include the members of the Allied Kommandanturaof Berlin, including the British Military Commandant . . ."
[Cited from W.Heidelmeyer, Immunität und Rechtsschutz gegen Akte der Besatzungshoheit in Berlin, ZaöRV vol. 46 (1986), p.520 ff., 530].

dd) The three Western powers have until today continued, especially in their relationship with the Soviet Union and with the Federal Republic of Germany and the German Democratic Republic, to uphold their legal positions in relation to Germany as a whole and Berlin.

E.g. vis-à-vis the Federal Republic of Germany in Articles 2 and 4 of the German Treaty, with the simultaneous obligation under Article 7; vis-à-vis the Soviet Union e.g. in the Resolution of the Four Powers and the NATO States of 14 and 16 December 1958 and the US note to the Soviet Union of 31 December 1958 in connection with the Berlin crisis of the time (cf. Documents on Germany; 1944-1959 [Washington, GPO, 1959], p.333, 347 ff.; cf. also Statement by the Department of State, on Legal Aspects of the Berlin Situation, 20 December 1958, op.cit., p.336; in the statement by the foreign ministers of the three Western powers of 28 September on the occasion of signature of the Treaty between the GDR and the Soviet Union of 20 September 1955 (op.cit. p.158) and their declaration of 26 June 1964 (op.cit.). Cf. also the exchange of notes with the Federal Republic of Germany in connection with the negotiations on the Federal Republic of Germany's treaties with the Soviet Union of 12 August 1970 (BGBl. 1972 II p.354 [356 f.]) and with Poland of 7 December 1970 (BGBl. 1972 II p.362 [364 ff.]) and the Four Power Declaration of 9 November 1972 on UN membership of the two German States (op.cit.).

ee) Having regard to these procedures and legal positions, it is not possible to see a position in international law of termination of the State from which it could be concluded that the German State had disappeared in 1949 on formation of the Federal Republic of Germany or enactment of the Constitution of the German Democratic Republic.

c) However the legal status of the German Democratic Republic in the subsequent years up to the conclusion of the Basic Treaty with the Federal Republic of Germany and its incorporation in the United Nations Organization may be assessed, this status and its development cannot in international law change anything in the Federal Republic of Germany's identity as a subject with the German State. Even were this development to constitute complete secession in international law from the German State association - which is ruled out, if only by the continuing Four-Power status of Germany as a whole - this could not have ended the continued existence of the German State; the secession of part of the territory does not end the identity as a subject of the remaining part insofar as that statehood remains in existence - which is indisputable in the case of the Federal Republic of Germany.

d) The decisive argument that it is not against general international law for the legal order of the Federal Republic of Germany to include in German nationality within the meaning of the Basic Law also citizens of the German Democratic Republic in the form described above is, however, the fact that the splitting of Germany is not covered by the right of self-determination of the German people. Instead, the German people in overwhelming majority, in both the Federal Republic of Germany and the German Democratic Republic, hold fast to the desire to overcome the splitting of Germany in peaceful fashion and restore complete State unity.

aa) After the Second World War, the right to self-determination was recognized as a principle of universal international law. This basis for validity is attested in particular in many treaty stipulations and in many statements as to the practice of States outside treaty contexts.

In Article 1 (2) and Article 55 of the United Nations Charter it is mentioned as a "principle". The two UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, both of 19 December 1966 (BGBL. 1973 II p.1534 and p.1570), state, in each case in Article 1 (1):

"All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
(see also the Declaration of the General Assembly of 24 October 1970 on the principles of international law, UN-GA res.2625 [XXV]).

bb) The Federal Republic of Germany has from the outset asserted the right to self-determination of the whole German people, not least in connection with conclusion of the "Ostverträge" [treaties with Eastern European countries].

The notes on German unity handed to the Soviet government and the GDR government on conclusion of the treaties in each case state that these treaties are not in contradiction with the Federal Republic of Germany's political objective of "working towards a state of peace in Europe in which the German people will regain its unity in free self-determination". The Federal Minister for Foreign Affairs, in his speech to the General Assembly of the United Nations on 27 September 1979 (Bulletin der Bundesregierung 1979, p.1057) and the Secretary of State of the Foreign Office at the conclusion of the CSCE follow-up meeting in Belgrade in March 1978, insisted on this right (Bull.1978 p.253); on the occasion of the 25th anniversary of the entry into force of the Paris Treaties of 5 May 1955, the foreign ministers of the Federal Republic of Germany, France, Britain and the US gave an assurance in an exchange of notes that it remained their policy to "work towards a state of peace in which the German people will secure its unity in free self-determination" (Bull.1980, p.417 f.); the same formulation can be found in the communiqué of the meeting of ministers of the North Atlantic Council of 25/26 June 1980 (Bull. 1980, p.648).

The Federal Government has additionally, even after conclusion of the Basic Treaty, upheld the right to self-determination of the German people vis-à-vis the German Democratic Republic.

Thus, on the occasion of the official visit of the Chairman of the Council of State of the German Democratic Republic to the Federal Republic of Germany, the Federal Chancellor stated on 7 September 1987:
"This visit can and will alter nothing as to the differing views of both States on questions of principle, including the national question. For the Federal Government, I repeat: the Preamble to our Basic Law is not up for discussion, since it corresponds to our conviction. It wishes a united Europe, and it calls for the whole German people to complete the unity and freedom of Germany in free self-determination" (Bull. 1987, p.705 f.).

cc) The German people is the bearer of the right to self-determination within the meaning of general universal international law. It is not an improper basis in accordance with international law for nationality-law regulations of the Federal Republic of Germany to guarantee the legal form and shape of this people as bearer of the right of self-determination until such time as free exercise of that right becomes possible for it. It may here be left open how this right is to be exercised, in order to meet the requirements for its free exercise.

In its report of 3 January 1975 on the Western Sahara, the International Court of Justice explicitly stressed that in safeguarding the right of self-determination the "freely expressed will of peoples" and the "wishes of the people concerned" should be taken into account (cf. International Court of Justice, Reports 1955, p.3 ff., [33]; see also the Un General Assembly Declaration of 24 October 1970 on the principles of international law, UN-GA Res. 2625 [XXV]).

Nor is there any infringement of the Treaty on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic of 21 December 1972 or of any other treaty between these two parties.

a) As its preamble states, the Basic Treaty was concluded between the parties inter alia "in the awareness that the inviolability of frontiers and respect for the territorial integrity and sovereignty of all States in Europe within their present boundaries is the basic condition for peace", and "on the basis of the historical facts and irrespective of the differing views of the Federal Republic of Germany and the German Democratic Republic on questions of principle, including the national question".

According to Article 2 of the Treaty the parties will be "guided by the aims and principles embodied in the Charter of the United Nations, in particular those of the sovereign equality of all States, respect for independence, autonomy and territorial integrity, the right to self-determination, the protection of human rights and non-discrimination".

According to Article 6, they start "from the principle that the sovereign power of each of the two States is limited to its State territory. They respect the independence and autonomy of each of the two States in domestic and foreign affairs"

By Article 9, they agree "that bilateral or multinational international treaties and agreements concluded by them previously or concerning them shall not be affected by this Treaty".

At the same time, when the Treaty was signed, the Federal Republic of Germany stated in a protocol: "Nationality questions have not been regulated by the Treaty". The German Democratic Republic stated in a protocol: "The German Democratic Republic presumes that the Treaty will ease settlement of nationality questions".

In connection with signature of the Basic Treaty, the Federal Minister without Portfolio in the Federal Chancellery sent a letter on 21 December 1972 to the Secretary of State to the Council of Ministers of the German Democratic Republic, in which the government of the Federal Republic of Germany states
"that this Treaty is not in contradiction with the political objective of the Federal Republic of Germany to work towards a state of peace in Europe in which the German people will regain its unity in free self-determination".

The effect in international law of these protocol declarations of the Federal Republic of Germany and the letter on German unity is that the Federal Republic of Germany has not by concluding the Basic Treaty taken on any obligations vis-à-vis the German Democratic Republic that are in contradiction with this declaration and this letter.

b) Attributing to acquisition of the citizenship of the German Democratic Republic the legal effect for the legal system of the Federal Republic of Germany of acquisition of German nationality within the meaning of the Basic Law contradicts neither the Federal Republic of Germany's protocol declaration nor its letter on Germany unity. The German Democratic Republic was aware when the Treaty was concluded that the Basic Law held to a single German nationality.

c) Even irrespective of this declaration and this letter, the legal effect at issue here for the legal system of the Federal Republic of Germany does not contravene any obligations on the Federal Republic of Germany from the Basic Treaty. It does not contradict the independence and autonomy of the German Democratic Republic to be respected in accordance with the Basic Treaty.

It neither questions the aims and principles that the parties take in Article 2 as a guide nor means exercise of sovereign power of the Federal Republic of Germany on the territory of the German Democratic Republic nor disregard for its independence and autonomy. It does not prevent or restrict the German Democratic Republic from regulating the nationality of its population. Nor does it mean that the Federal Republic of Germany is entitled to claim duties on German nationals resulting from this status within the area of sovereignty of the German Democratic Republic.

d) The German Democratic Republic was aware when the Treaty was concluded also of the Federal Republic of Germany's different view "on the national question" mentioned in the preamble to the Treaty. It was aware that the Federal Republic of Germany approaches this question on the basis of the existence in Germany of two States which are not foreign countries for each other.

In the period before, and also after, the conclusion of the Basic Treaty, Federal Governments have repeatedly declared that conclusion of this Treaty could not be seen as recognition in international law of the German Democratic Republic by the Federal Republic of Germany.

Cf. the Federal Chancellor's government statement of 28 October 1969; his statements to the Chairman of the Council of Ministers of the German Democratic Republic at the Erfurt and Kassel meetings in March and May 1970 (Bull. 1970, p.377 ff.; 681 ff.)

In the Federal Government's answer to the Bundesrat's opinion on the occasion of discussion of the Basic Treaty in legislative procedure

BTDrucks. 7/153, p.23, Annex 3,
B. II, III on 3 and 4.
the Federal Government stated that it had always stressed that the States in Germany were not foreign countries in their relationship to each other. It was a matter purely for the sovereign will of the Federal Republic of Germany not to recognize the German Democratic Republic. It had made this will clear in the Treaty negotiations from the outset; it had also been incorporated in the set of treaties.

The Committee on Intra-German Relationships supported this position (cf. BTDrucks. 7/500, p.4).

Nor was simultaneous accession by the Federal Republic of Germany and the German Democratic Republic to the United Nations treated by the Federal Government as recognition of the German Democratic Republic. The Bundestag Foreign Affairs Committee's report on the draft law on accession to the United Nations (report by Deputies Dr. Carstens and Dr. Corterier) states:
"On the question whether accession by the two States in Germany implies recognition of the GDR in international law by the Federal Republic of Germany, the Foreign Affairs Committee has taken note of the Federal Government's statement that according to prevailing doctrine and practice in international law no conclusion can be drawn from the accession of two States to an international organization such as the United Nations to the recognition in international law of one State by the other. The Federal Government has additionally declared that it in no way binds up with the UN accession agreed with the GDR the intention to recognize the GDR in international law. Nor does it regard the existing twofold statehood in Germany as a definitive solution to the German question. It will also continue to uphold the Federal Republic of Germany's political objective of working towards a state of peace in Europe in which the German people will regain its unity in free self-determination" (cf. BTDrucks. 7/502).

These statements are not mere verbal reservations, which would not be able to change anything in the actual position regarding recognition in international law; instead, they maintain the legal standpoint of the Federal Republic of Germany that its legal relationship with the German Democratic Republic does not - even after conclusion of the Basic Treaty - depend exclusively on international law. The sovereignty of the two States in relationships with third States is not affected or questioned by this.

3. The State organs of the Federal Republic of Germany competent for foreign policy and German policy have from the outset held to the continued existence of the German State even following defeat in the Second World War, to the Federal Republic of Germany's identity as a subject with the German State and to a single German nationality. At least since conclusion of the Basic Treaty, they assume the existence of two States in Germany that are not foreign countries for each other, and the continued existence of the Four-Power status of Germany as a whole. They have asserted the German people's claim to free self-determination before the international community. The assessment of Germany's position in international law, and that of its parts, may be disputed among States; the assessment in international law of Germany's legal position by the competent State organs of the Federal Republic of Germany could be opposed by the Federal Constitutional Court only if it were manifestly contrary to international law (cf. BVerfGE 55, 349 [367 f.]).

This cannot be the case here.

III.

Accordingly, the complainant possesses German nationality. The decisions challenged contravene his basic right under Article 16 (1) taken together with Article 116 (1) Basic Law and in his basic right to equal treatment under Article 3 (1) Basic Law taken together with Articles 8 (1), 9 (1), 11 (1), 12 (1) Basic Law. The judgment of the Federal Administrative Tribunal is therefore overruled, and the case referred back to the Federal Administrative Tribunal.

The Federal Republic of Germany shall reimburse the complainant for the necessary expenses, para.34 (4) BVerfGG.

D.

This decision has been taken by six votes to two.

Judges: Zeidler, Dr.Dr.h.c. Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Grasshof I do not agree with this decision.
Zeidler

Dissenting opinion of
Judge Niebler
on the ruling of the Second Senate
of 21 October 1987
- 2 BvR 373/83 -

I cannot agree with the Senate's decision, in the outcome and in part also in the argumentation.

1. a) I share with the Senate the view that it follows from the reunification precept rooted in the preamble to the Basic Law that all action must be refrained from that could jeopardize reunification (C I 3 a and b of the decision). I also affirm the constitutional duty to uphold the identity of the German nation (C I 3 c of the decision).

b) It should not however be concluded from the constitutional duties set out above that every statutory regulation in the German Democratic Republic, with its effects in individual cases, must be recognized unconsidered by the courts and authorities of the Federal Republic of Germany, up to the limit of ordre public.

According to the Federal Constitutional Court's case law to date, it must certainly be assumed that the single German nationality continues, that for the Federal Republic of Germany in particular it has not been affected by the nationality legislation of the German Democratic Republic and that the status of a German within the meaning of Articles 16, 116 (1) Basic Law has not, for someone "who was a German within the meaning of this Basic Law", been reduced or curtailed by the Basic Treaty even if he is a citizen of the German Democratic Republic. There can be no doubt that citizens of the German Democratic Republic as a general rule possess according to the nationality law of the Federal Republic of Germany the status of a German within the meaning of Articles 16, 116 (1) Basic Law (cf. e.g. Hailbronner, JuS 1981, 712 [713]).

c) Acquisition of German nationality within the meaning of the Basic Law of the Federal Republic of Germany undoubtedly occurs where acquisition in the German Democratic Republic has come about on the basis of circumstances corresponding to the Citizenship and Nationality Act which after 1945 initially continued in force in both German States. It need not here be gone into whether circumstances which on application mutatis mutandis of the provisions of the Act would justify recognition also suffice.

However, recognition of circumstances of acquisition in the German Democratic Republic that depart essentially from the Citizenship and Nationality Act is not called for by the Basic Law. This would mean in the upshot that the German Democratic Republic could by appropriate statutory amendments or practice in granting citizenship extend the range of Germans within the meaning of the Basic Law almost without limit, with fully binding effect for the Federal Republic of Germany!

I share with the Federal Administrative Tribunal the view that that can be deduced neither from any legal principle of the Federal Republic of Germany nor from the reunification precept of the Basic Law.

d) I do not regard the ordre public limits set by the Senate as sufficient.

It need not be discussed here whether in penal law, which concerns interference with the freedom of the individual by enforcement of penal judgments and in which differentiated solutions, appropriate to the individual case, are possible through reduction of penalties, ordre public may be capable of leading to proper results.

In the area of nationality there is only a "yes" or a "no". Here ordre public can in my view not prevent results that may be hard or impossible to reconcile with the basic ideas of the legal order of the Federal Republic of Germany.

2. The requirements for acquisition of German nationality according to the Citizenship and Nationality Act have indisputably not been met by the complainant.

Whether the complainant's meeting of the conditions for acquisition of German nationality within the meaning of the Basic Law could have been affirmed on a generous application mutatis mutandis of the provisions of the Act is not a constitutional question; it has to be investigated and decided in each case by the specialist courts in interpreting the Act.

Constitutionally, therefore, the challenged decision of the Federal Administrative Tribunal cannot in my view be objected to.

Moreover, in hard cases that might arise, remedies could, in addition to generous application of the individual Acts, be found also by naturalization. In this there would surely have been no problems for the complainant.
Prof.Dr.Dr.h.c.Niebler

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