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Case:
BVerfGE 36, 1 2 BvF 1/73 Grundlagenvertrag-decision East-West Basic Treaty
Date:
31 July 1973
Judges:
Seuffert, Dr. v.Schlabrendorff, Dr. Rupp, Dr. Geiger, Hirsch, Dr. Rinck, Wand
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. Article 59 (2) Basic Law requires, for all treaties which regulate political relations of the Federation or relate to matters of Federal legislation, parliamentary control in the form of the assenting act, irrespective of whether the State involved as contracting party is a foreign country according to the law of the Basic Law or not.

2. The principle of judicial self-restraint is aimed at keeping open the leeway for political action guaranteed by the Constitution for the other constitutional organs.

3. It is incompatible with the Basic Law's decision in favour of comprehensive constitutional jurisdiction for the executive to seek to out-manoeuvre proceedings pending before the Federal Constitutional Court.

Should a situation exceptionally arise, as in this case, where entry into force of a treaty before conclusion of the constitutional procedure seems unavoidably necessary in the view of the executive, then the constitutional organs responsible therefor must answer for any consequences that may arise.

4. It follows from the reunification precept that no constitutional organ of the Federal Republic of Germany may abandon restoration of national unity as a political goal, that all constitutional organs are obliged in their policy to work towards attaining this goal - which includes the requirement to maintain the claim to reunification alive domestically and vigorously defend it externally - and refrain from anything that might prevent reunification.

5. The Constitution forbids the Federal Republic of Germany from abandoning a legal title arising out of the Basic Law through which it may act towards realization of reunification and self-determination, or creating a legal title incompatible with the Basic Law, or involving itself with the establishment of any such legal title which may be held against it in its efforts towards this goal.

6. The Treaty has a dual nature: by its type it is an international treaty; by its specific content it is a treaty regulating above all inter se relationships.

7. Article 23 Basic Law forbids the Federal Government from entering by treaty into a dependency whereby it legally cannot any longer by itself, but only by agreement with its treaty partners, bring about the incorporation of other parts of Germany.

8. Article 16 Basic Law starts from the position that the "German citizenship" referred to also in Article 116 (1) Basic Law, is at the same time citizenship of the Federal Republic of Germany. German citizens within the meaning of the Basic Law are accordingly not only citizens of the Federal Republic of Germany.

9. A German, whenever he comes within the sphere of protection of the State order of the Federal Republic of Germany, is entitled to the full protection of the courts of the Federal Republic of Germany and to all guarantees of the fundamental rights under the Basic Law.

Judgement of the Second Senate of 31 July 1973 - on the oral proceedings of 19 June 1973 -- 2 BvF 1/73 -
in the proceedings on constitutional review of the Act on the Treaty of 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic of 6 June 1973 (BGBl. II p.421), petitioner: the Bavarian State Government, represented by the Minister President, Munich, State Chancellery, participant: the Federal Government, represented by the Federal Minister of Justice, Bonn, Rosenburg.

DECISION:

The Act on the Treaty of 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic of 6 June 1973 (Bundesgesetzbl. Part II p.421) is, in the interpretation resulting from the decision, compatible with the Basic Law.

EXTRACT FROM GROUNDS:

A.

-I.

On 8 November 1972 the Treaty negotiated between the Federal Republic of Germany and the German Democratic Republic on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic - hereinafter the Treaty - was initialled. It was published on the same day, along with a number of supplementary texts, in Bulletin no.115, p.1841 ff., with the indication (loc.cit. p.1853) that the Federal Government would "before signing the Treaty send a letter to the government of the German Democratic Republic setting out its objectives in the national question".

The Treaty is as follows:

Article 1
The Federal Republic of Germany and the German Democratic Republic will develop normal neighbourly relationships with each other on the basis of equality of rights.

Article 2
The Federal Republic of Germany and the German Democratic Republic will be guided by the aims and principles embodied in the Charter of the United Nations, in particular the sovereign equality of all States, respect for independence, autonomy and territorial integrity, the right of self-determination, the upholding of human rights and non-discrimination.

Article 3
In accordance with the Charter of the United Nations, the Federal Republic of Germany and the German Democratic Republic will resolve their disputes exclusively by peaceful means and refrain from the threat or use of force.

They affirm the inviolability of the frontier existing between them now and in the future and commit themselves to unrestricted respect for their territorial integrity.

Article 4
The Federal Republic of Germany and the German Democratic Republic take the position that neither of the two States can represent the other internationally or act in its name.

Article 5
The Federal Republic of Germany and the German Democratic Republic will promote peaceful relations among European States and contribute to security and cooperation in Europe. They support efforts towards reduction of forces and armaments in Europe, without disadvantages for the security of the parties being allowed thereby to arise.

The Federal Republic of Germany and the German Democratic Republic will, with the object of general and complete disarmament under effective international control, support efforts serving international security at limiting armaments and at disarmament, in particular in the area of nuclear weapons and other weapons of mass destruction.

Article 6
The Federal Republic of Germany and the German Democratic Republic base themselves on the principle that the sovereign power of each of the two States is confined to its State territory. They respect the independence and autonomy of each of the two States in internal and external affairs.

Article 7
The Federal Republic of Germany and the German Democratic Republic declare their readiness, in the course of normalization of their relationships, to regulate practical and humanitarian questions. They will conclude agreements, in order on the basis of this Treaty and for their mutual advantage to develop and promote cooperation in the area of the economy, science and technology, transport, legal relations, posts and telecommunications, health, culture, sport, environment protection and other areas. Details are regulated in the Additional Protocol.

Article 8
The Federal Republic of Germany and the German Democratic Republic will exchange permanent representations. They will be set up at the seats of the respective governments.

Practical questions connected with the setting up of the representations will be regulated subsidiarily.

Article 9
The Federal Republic of Germany and the German Democratic Republic agree that through this Treaty bilateral and multi-lateral international treaties and agreements formerly concluded by them or affecting them are unaffected.

Article 10
This Treaty shall require ratification and shall enter into force on the day following exchange of corresponding notes.

The Treaty was signed in Berlin on 21 December 1972 by the authorized representatives of the Contracting Parties; an additional protocol on which the Contracting Parties had agreed was attached to the Treaty. Also connected with the Treaty were:

a protocol note to the effect that "in view of the differing legal positions on questions of assets...these could not be settled by the Treaty";
two "recorded declarations" of which the one given for the Federal Republic of Germany runs: "Nationality questions have not been regulated by the Treaty" and the one given for the German Democratic Republic runs: "The German Democratic Republic takes it as a basis that the Treaty will facilitate regulation of nationality questions";
two recorded declarations by the Contracting Parties on the application for membership of the United Nations;
a recorded declaration of both heads of delegation on the tasks of the Boundary Commission;
a recorded declaration by the head of delegation of the German Democratic Republic on administrative relations;
a declaration by both parties on the extension of agreements and settlements to Berlin (West);
a declaration by both parties on "political consultation";
recorded declarations in connection with the exchange of letters on possibilities of work for journalists;
a declaration by both parties on the extension of the agreement on possibilities of work for journalists to Berlin (West);
an exchange of letters of 21 December 1972 on reuniting of families, facilitation of travel and improvements in non-commercial movement of goods;
an exchange of letters of 21 December 1972 on the opening of (four) more border crossing-points;
an exchange of letters of 21 December 1972 containing the tenor of the notes of the Federal Republic of Germany to the three Western powers and of the German Democratic Republic to the Soviet Union on Article 9 of the Treaty;
an exchange of letters on posts and telecommnications;
an exchange of letters on the application for membership in the United Nations;
an exchange of letters on possibilities of work for journalists.
Immediately before signature of the Treaty, the government of the German Democratic Republic was sent a letter from the government of the Federal Republic of Germany on German unity of 21 December 1972.

Following discussion and consideration in the legislative bodies, the Act of 6 June 1973 was adopted, on the Treaty of 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic (BGBl. II p.421) - hereinafter the Treaty Act; its Article 1 runs:

The Treaty signed on 21 December 1972 on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic including
- the accompanying letter of the government of the Federal Republic of Germany on German unity to the government of the German Democratic Republic of 21 December 1972,
- the additional protocol to the Treaty,
- the protocol note on asset questions,
- the reservation on nationality questions by the Federal Republic of Germany,
- the exchange of letters of 21 December 1972 on reuniting of families, facilitation of travel and improvements in non-commercial movement of goods,
- the exchange of letters of 21 December 1972 on the opening of additional border crossing-points,
- the exchange of letters of 21 December 1972 containing the tenor of the notes from the government of the Federal Republic of Germany to the governments of the French Republic, the United Kingdom of Great Britain and Northern Ireland and the United States of America and the note of the government of the German Democratic Republic to the Government of the Union of Socialist Soviet Republics on Article 9 of the Treaty,
- the declarations relating to Berlin (West),
is assented to. The Treaty, the letter, the additional protocol, the protocol note, the reservation, the exchanges of letters and the declarations are published hereafter.
The Treaty entered into force following the promulgation on its entry into force of 22 June 1973 (BGBl. II p.559) on 21 June 1973 "following the exchange of corresponding notes between the government of the Federal Republic of Germany and the government of the German Democratic Republic, which took place on 20 June 1973 in Bonn".

II.

1. On 28 May 1973 the Bavarian State Government, pursuant to Article 93 (1) (2) Basic Law, taken together with para.13 (6) and para.76 (1) BVerfGG, petitioned the Federal Constitutional Court for a finding that:

The Act on the Treaty of 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on the bases of relationships between the Federal Republic of Germany and the German Democratic Republic is incompatible with the Basic Law and therefore null and void.

For admissibility of the petition it refers to the Court's case law to date.

On the justification for its petition, it states essentially that: the Treaty contravenes the precept of maintenance of the national unity of Germany. It is based on the legal view, rejected by the Basic Law, of the destruction of the German Reich and the re-emergence of two independent States on the territory of the old Reich. The Federal Republic would no longer be able to act for Germany as a whole. Nothing was altered in this by the letter on German unity, which referred neither to the right of self-determination nor to the right to reunification, but only to the political goal of seeking a change in the status quo through peaceful means. According to the Basic Law, German unity continued to exist not only in Allied rights of reservation, but also in the legal norms and organs of the Federal Republic of Germany.

The Treaty is alleged also to contravene the Basic Law's precept of reunification. It is said to recognize the German Democratic Republic as an independent, autonomous State having the same rights as the Federal Republic of Germany. The German Reich was replaced by two sovereign States mutually guaranteeing their existence; this would lead to the splitting of Germany. The Treaty made the existing demarcation line into a State border agreed voluntarily and by Treaty. This meant a deepening of the already existing split and contravened the precept of reunification. Accordingly, the Treaty could not be justified either on the ground that the situation it created was "closer to the Basic Law" than the previous one.

Moreover, the Treaty was incompatible with the Basic Law's provisions about Berlin: the Berlin clause of the Treaty Act already differed from the usual formula in providing only that the Act applied "insofar as the regulations of the system of treaties relate to Land Berlin, in Land Berlin also, insofar as Land Berlin determines the application of this Act". This meant that the clause covered only the declarations of both sides relating to Berlin (West). However, the system of treaties also regulated questions not concerning the status of Berlin, for instance improvement of non-commercial movement of goods, from which the Treaty Act ought not to exclude Berlin. Even the declaration relating to Berlin (West) itself was unconstitutional because all that had been agreed was that the agreements and settlements provided for in the additional protocol to Article 7 could be extended from case to case to Berlin (West); this would however depend in future on the attitude of the German Democratic Republic, and therefore it was no longer guaranteed and accordingly contravened Article 23 (1) Basic Law. Equally, the recognition of the sovereignty of the German Democratic Republic over Berlin (East) was incompatible with this provision.

Finally, the Treaty infringed the duty of care and protection rooted in the Basic Law, vis-à-vis Germans in the German Democratic Republic. The people living in the German Democratic Republic were Germans within the meaning of Article 116 Basic Law. But Article 6 of the Treaty legally prevented the Federal Republic of Germany from intervening in favour of Germans residing in the territory of the German Democratic Republic; in consequence, additional difficulties would have to arise where representations of the Federal Republic of Germany in third countries wished to provide assistance to Germans from the German Democratic Republic. Moreover, even if the Treaty had not regulated nationality questions, it had effects on the nationality law of the Basic Law. At any rate, a treaty ought only to be concluded with the German Democratic Republic if it bindingly agreed - as it were as a constitutional minimum - a right of outward travel for all Germans from the German Democratic Republic to the Federal Republic of Germany.

Taken all round, the Treaty had not succeeded in constituting a "special relationship" between the Federal Republic of Germany and the German Democratic Republic. Not even the unity of the nation was fixed by the Treaty. Nor could the Treaty be interpreted as a "modus vivendi", because it had been concluded without a time limit and without a denunciation clause and did not even contain a reservation regarding settlement through a peace treaty. The Treaty had not brought the German question closer to the aim of the Basic Law; this applied even considering the praiseworthy improvements in human terms connected with the entry into force of the Treaty.

The Bavarian State Government, in support of its view, further presented a legal expert opinion by Professor Wengler, Berlin.

2. The Federal Government petitioned for a finding that:

The Act of 6 June 1973 on the Treaty or 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on the bases of the relations between the Federal Republic of Germany and the German Democratic Republic is compatible with the Basic Law.

In justification it adduced essentially the following.

On the case law of the Federal Constitutional Court to date on constitutional review of international treaties, it must first be required that the petition of the Bavarian State Government be convincing; part of this was that it take cognizance of the relevant observations of the Federal Government and parliamentary negotiations, and show that a contravention of the Constitution had to be taken seriously into consideration. For this, account had recognizably to be taken in the petition itself of the fact that in reviewing measures in international law and between States a high degree of justiciability and evidentiality was requisite. Should a petition not meet these indefeasible requirements, and were instead the care observed by the Federal Government and the legislative bodies in upholding constitutional law manifest, then a petition would not meet the requirements to be placed on detailed examination of the merits by the Federal Constitutional Court. It would then be evidently, or at least unambiguously, unjustified. In particular, it would have to fail because the Bavarian State Government would be reading its purely political conceptions into the Basic Law as legal principles, introducing its political assessments even into interpretation of the Treaty in one-sided fashion, because it would be leaving the initial political situation entirely out of account and because it would be denying the intentions pursued by the Treaty in accord with the elementary objectives of the Basic Law. against the unambiguous content of that Treaty.

There was no alternative to the Treaty. Comparing the position following entry into force of the Treaty with the one that would exist had it not been concluded, its advantages were clear. The Treaty de facto served the constitutional objective of guaranteeing peace, it served the constitutional goal of humanity by bringing people practical advantages, it maintained the continuing existence of Germany, in accord with the constitutional legislator, it was, in accordance with the conceptions of the constitutional legislator, a document for a policy oriented not to the interests of the Federal Republic but to those of the whole nation, and it kept the German question open.

The Basic Law contained no stipulation about the "identity thesis" but distinguished between the Federal Republic of Germany and Germany. Nor was the Treaty in contradiction with the precept of reunification. For the three Western powers remained bound to refer the Four-Power reservation to Germany as a whole; the Treaty did not renounce the continued existence of Germany as a legal subject; it avoided terming the German Democratic Republic a foreign country; it kept firmly to the unity of the German nation and to German nationality; nor did it contain any recognition in international law of the German Democratic Republic. With the Treaty, what was politically attainable had been attained. Yet it did not undermine reunification whether de iure or de facto, irrespective of the form in which it might one day be realized. But it brought improvements in both the political and the human sphere, and additionally laid a basis for claims to agreements that could lead to further improvements. The Treaty concluded nothing, regulated nothing definitively, but on the contrary kept the situation open for future improvements and created the basis for them.

The status of Berlin remained unaffected by the Treaty, if only because it was fixed by the Four-Power agreement, nothing of which the Contracting Parties were able to alter.

An obligation on the Federal Government to be responsible within the territory of the German Democratic Republic for protection and care of Germans who had their permanent residence there did not exist according to the Basic Law. The Treaty altered nothing, whether de iure or de facto, in the Federal organs' power of care and protection of Germans abroad. The granting of freedom of outward travel for all Germans from the German Democratic Republic was not a constitutional precondition for agreements aimed at securing specific improvements in human relationships.

3. The Court had inter alia been presented with all records of discussions of the legislative bodies concerning the Treaty, and also with the documents conceded to the parties to the proceedings in the oral hearing on the document presented in the oral hearing on reception of the letter on German unity.B.-I.
The petition is, according to the case law of the Federal Constitutional Court, which the Senate upholds, admissible (cf. esp. BVerfGE 4, 157 [161 ff]). This is so even though, as will be set forth below, the German Democratic Republic is not a foreign country according to the law of the Basic Law. For Article 59 (2) Basic Law requires, for all treaties regulating the political relationships of the Federation or relating to matters of Federal legislation, parliamentary control in the form of the assenting act, irrespective of whether the State involved as contractual partner is according to the law of the Basic Law a foreign country or not.

II.

1. The object of the constitutional proceedings is the Treaty Act of 6 June 1973 and the Treaty referred to in it, with its additional protocol. The parts of the system of treaties not referred to in Article 1 of the Treaty Act are a priori excluded as objects of review of constitutionality. They are of importance for the overall evaluation of the Treaty and can be adduced inter alia as material for interpreting the Treaty. Whether the further notes, reservations, declarations and letters referred to in Article 1 of the Act may be objects of constitutional review need not be gone into, since they are dependent on the Treaty, are in part of purely declaratory content and in other respects cannot by their content be incompatible with the Basic Law, as follows from the legal considerations regarding the Treaty given below. They are however important resources for interpreting the Treaty, as is the preamble to the Treaty itself.

2. The criterion in judicial review proceedings is the Basic Law. Its binding interpretation is a matter for the Federal Constitutional Court. On this basis there is no tension between political reality and constitutional order that could be removed by the consideration that the constitutional order in force might be altered by a treaty. It neither creates substantive constitutional law nor can be adduced in interpretation of the Basic Law. Instead the converse is true: a treaty in contradiction with the Constitution in force can constitutionally be brought into harmony with the Basic Law only through a corresponding constitutional amendment.

That said, the principle developed in general by the Federal Constitutional Court with regard to the responsibility of the other constitutional organs in the free democratic State under the rule of law set up by the Basic Law applies to constitutional review of a Treaty too: that among several possible interpretations, the one to choose is that through which the treaty can stand up to the Basic Law (cf. BVerfGE 4, 157 [168]). Among the interpretive principles important particularly in connection with the constitutional review of treaties is also that in interpreting constitutional provisions relating to the Federal Republic's relationships with other States, their demarcatory character, that is the room for manoeuvre they allow in policy making, ought not to be left out of account. In this demarcation the Basic Law sets legal limits to every political power, in the area of foreign policy too; this is the essence of the rule of law constituted by the Basic Law. The implementation of this constitutional order is incumbent ultimately on the Federal Constitutional Court.

The principle of judicial self-restraint that the Federal Constitutional Court imposes on itself does not mean a curtailment or weakening of its powers as just set out, but refraining from "playing politics", that is, intervening in the area of free policy making set up and demarcated by the Constitution. It accordingly aims at keeping the leeway for free policy making guaranteed by the Constitution for the other constitutional organs open.

It follows from these considerations that it is of decisive importance for a decision in constitutional review proceedings concerning a treaty to be taken before the latter comes into force. This must be taken account by all constitutional organs, in accordance with the basic constitutional relationship existing between them. This means on the one hand that the Federal Constitutional Court must complete the constitutional review as speedily as possible. It means on the other hand that the other constitutional organs must include the Federal Constitutional Court's competence for review in their considerations on the timetable for the proceedings leading to ratification of the treaty and refrain from anything that might hamper the Federal Constitutional Court in timeous and effective exercise of its power, or make it impossible. The Basic Law's decision in favour of comprehensive constitutional jurisdiction is incompatible with attempts by the executive to out-manoeuvre proceedings pending before the Federal Constitutional Court. Should exceptionally a case some time arise, as in this case, in which the entry into force of a treaty before conclusion of the constitutional proceedings seems unobjectionably necessary in the executive's view, then the constitutional organs responsible for this must take responsibility for any consequences that may arise (cf. judgment of 18 June 1973, p.6 f. - 2 BvQ 1/73-)1.

III.

The Treaty regulates the bases of relationships between the Federal Republic of Germany and the German Democratic Republic. In assessing it is necessary to consider what the Basic Law has to say as to the legal status of Germany:

1. The Basic Law - not merely some proposition of the theory of international law or of constitutional law - takes it that the German Reich outlasted the collapse in 1945 and did not later perish either with the capitulation nor with the exercise of foreign sovereignty in Germany by the Allied occupation powers nor later; as follows from the preamble, from Article 16, Article 23, Article 116 and Article 146 Basic Law. It is also in accord with the consistent case law of the Federal Constitutional Court, which the Senate upholds. The German Reich continues to exist (BVerfGE 2, 226 [277]; 3, 288 [319 f.]; 5, 85 [126]; 6, 309 [336, 363]), continues to possess legal capacity, though it is as an overall State, from lack of organization, in particular for lack of institutionalized organs, not itself capable of action. The view of the overall German national people and the overall German State power is "anchored" also in the Basic Law (BVerfGE 2, 266 [277]). Responsibility for "Germany as a whole" is borne - also - by the Four Powers (BVerfGE 1, 351 [362 f., 367]).

With the setting up of the Federal Republic of Germany it was not a new West German State that was founded, but part of Germany that was newly organized (cf. Carlo Schmid at the 6th session of the Parliamentary Council - StenBer. p.70). The Federal Republic of Germany is accordingly not the "legal successor" of the German Reich, but is as a State identical with the State called the "German Reich" - though as far as its spatial extension is concerned "partially identical", so that to that extent the identity does not lay claim to exclusivity.

Accordingly, the Federal Republic does not, as far its national people and national territory are concerned, cover the whole of Germany, irrespective of the fact that it recognizes a unitary national people of the subject of international law "Germany" (German Reich), to which its own population belongs as an inseparable part, and a unitary State territory of "Germany" (German Reich) to which its own State territory belongs as an equally inseparable part. Constitutionally, it confines its sovereign power to the "area to which the Basic Law applies" (cf. BVerfGE 3, 288 [319 f.]; 6, 309 [338, 363]), but also feels itself responsible for the whole of Germany (cf. the preamble to the Basic Law). At present the Federal Republic consists of the Länder mentioned in Article 23 Basic Law, including Berlin; the status of Land Berlin of the Federal Republic of Germany is only reduced and burdened by the so-called reservation of the governors of the Western powers (BVerfGE 7, 1 [7 ff.]; 19, 377 [388]; 20, 257 [266]). The German Democratic Republic is part of Germany and cannot be regarded as a foreign country in relationship to the Federal Republic of Germany (BVerfGE 11, 150 [158]). Accordingly, for instance, inter-zonal trade was not foreign trade, and the similar German internal trade is not either (BVerfGE 18, 353 [354]).

2. On the precept of reunification and the right of self-determination contained in the Basic Law, the Federal Constitutional Court has so far recognized, and this Senate upholds it, that the preamble to the Basic Law has not only political importance but also legal content. Reunification is a constitutional command. It must however be left up to the Federal Republic's organs competent for political action to decide what ways to bring about reunification they regard as politically correct and expedient. The constitutional organs, for which too the Basic Law makes protection of the free democratic basic order and institutions a duty, have to decide whether a particular, otherwise constitutional measure could legally hinder reunification or make it de facto impossible and must for that reason be refrained from. There is broad room for political discretion here, particularly on the part of the legislative organs. The Federal Constitutional Court can oppose the legislator only once the limits of this discretion have been clearly overstepped, when the measure, that is, de iure or de facto clearly stands in the way of a reunification in freedom (BVerfGE 5, 85 [126 ff.]; 12, 45 [51 f.]).

This calls for one further clarification here, in the following sense. It follows first of all from the precept of reunification that no constitutional organ of the Federal Republic of Germany may abandon the restoration of national unity as a political goal, that all constitutional organs are obliged in their policy to work towards the securing of this goal - including the requirement to maintain the claim to reunification alive domestically and vigorously present it externally - and refrain from anything that might prevent reunification. The Federal Government has certainly to decide on its own responsibility what political means and what political pathways it will use to reach the goal of reunification legally commanded by the Basic Law, or at least seek to come closer to it. Estimation of the chances for its policy is for it and the parliamentary majority that sustains it. Here the Court has neither to exercise criticism nor express its view on the prospects for the policy. Political responsibility for it lies with the policy-making bodies alone. But one boundary that the Federal Constitutional Court does have to make clear, define and where appropriate enforce lies in the fact that in the Federal Republic of Germany as a constitutional State under the rule of law the Constitution forbids the Federal Republic from abandoning a legal title (legal position) based on the Basic Law through which it can work towards the realization of reunification and self-determination, or create a legal title incompatible with the Basic Law, or be involved in establishment of such a legal title, which may be held against it in its efforts towards that goal. There is a distinction between refraining politically from making use of a legal title - as long as there is no danger of the title being forfeited thereby - or at a given time or for the foreseeable future not regarding it as a serviceable political instrument and therefore putting up with the fact that no political success can be attained through it, and giving it up in the legal sense. In this sense, then, one can politically come to terms with realities. The Basic Law, however, requires that in so doing no legal title founded in it be sacrificed that could now or later offer an argument for promoting endeavours towards reunification. A similar position applies to the reverse case: political conduct may later prove to have been "miscalculated" and others may hold this against the Federal Government politically in their efforts at reunification; but this situation, on which the Constitutional Court has to say not a word, differs essentially from the other one where the Federal Republic of Germany cooperates in a legal instrument which may be used against it by others in its efforts at reunification. From this it follows, for instance, that it is the clear legal position of every government of the Federal Republic of Germany that they must start from the existence of Germany as a whole with an (all-) German people and an (all-) German State power, presupposed by the Basic Law and "anchored" in it. If today the "German nation" is spoken of, parenthetically for Germany as a whole, there is no reason for objecting to this if it is also to be understood as a synonym for the "German body politic", so that the legal position is maintained and another formula is used only from political considerations. Should however this new expression "German nation" cover only the concept of a linguistic and cultural unity present in the awareness of the population, then this would be legally the abandonment of an unrelinquishable legal position. The latter would be in contradiction with the precept of reunification as a goal to be aimed at by the Federal Government through all permissible means. The same would be the case were the reference to Four-Power responsibility for Germany as a whole to mean that in future they alone would be the (last) legal peg for the continued existence of Germany as a whole; all that is constitutional is - as the Federal Government itself understands too - that it constitutes a further legal basis for the Federal Government's efforts at reunification, namely one in "international law" alongside the constitutional one.

On the political thesis of the "sole claim to representation", the Federal Constitutional Court has never pronounced. It has not had and does not now have either any occasion to consider and to decide whether the Basic Law can be taken as legally establishing a sole claim of representation by the Federal Republic of Germany for Germany as a whole.

3. The Treaty can be interpreted in such a way that it does not come into contradiction with any of the statements of the Basic Law set forth. No official utterance within the Federal Republic of Germany can be understood to the effect that in the interpretation of the Treaty it has left or is leaving this constitutional bedrock.

IV.

1. The Treaty can be appraised legally only by setting it in a broader context. It is one part of a more comprehensive policy, more precisely the Federal Government's Ostpolitik oriented towards détente, within which notably the Treaties of Moscow and Warsaw are outstanding milestones; these Treaties were just as much a pre-condition for conclusion of the Basic Treaty as the Basic Treaty itself was for the Federal Government a goal it hoped to achieve by concluding those two Treaties with the East. In this context the Basic Treaty takes on the same fundamental importance as the Moscow and Warsaw Treaties. It is not some arbitrarily correctible step, like many steps in politics, but constitutes, as the very name says, the basis for the new policy oriented towards the long term. Correspondingly, it contains neither a time limitation nor a denunciation clause. It constitutes a historical turning-point from which onwards the relationship between the Federal Republic of Germany and German Democratic Republic are to be reshaped. This context is of manifold importance for the legal assessment of the Treaty, as follows.

While, like the Basic Law (cf. the preamble, Article 23 and Article 146 Basic Law), it is not a definitive solution to the German question, at the same time it cannot be termed a mere "transitional solution" pending a later "definitive" redefinition of the relationship between the two States; it is not an agreed "modus vivendi" to be replaced in the foreseeable future by another fundamental redefinition of the relationship between these two States. It itself is the earnestly desired new basis for defining the relationship of the two States with each other - irrespective of the fact that the Contracting Parties are legally free to agree at any time to amend or supplement the Treaty in accordance with the legal principles in force for them.

From the political importance of the Treaty as set forth, there follows the further legal conclusion that as the basis for the new relationships between the two German States, there will necessarily emerge from it in the coming period a multiplicity of legal specifications of the new co-existence, indeed togetherness, of the two States (cf. Article 7 of the Treaty). Each of these further steps must not only be in accordance with the Treaty but also in accordance with the Basic Law. Accordingly, clarification is required right from today that everything that takes place in further legal steps based on the Treaty is not necessarily legally in order simply because the Treaty basis (the Treaty) cannot be objected to constitutionally. Accordingly, in these constitutional review proceedings, as far as can be foreseen the constitutional bounds are to be indicated that exist for the "fleshing out" of the Treaty by later agreements and accords.

2. The Treaty is embedded in more comprehensive and more specific legal relationships which also have to be taken into account in a legal assessment. This becomes particularly clear from the reference to the United Nations Charter in Article 2 and Article 3 of the Treaty and from the provision in Article 9 that "by this Treaty, bilateral and multilateral treaties and agreements formerly concluded" by the Contracting Parties "are not affected"; this means in particular the "Western Treaties" concluded by the Federal Republic - in particular, therefore, Article 7 of the German Treaty, whereby the Federal Republic and the three powers remain treaty-bound as before (clause 2) to work together "in order by peaceful means to secure their common goal: a reunified Germany with a free democratic constitution like that of the Federal Republic, integrated into the European Community" - as do the Moscow and Warsaw Treaties and the Four-Power agreements concerning Germany as a whole, but also, for instance, the border and friendship Treaty between the German Democratic Republic and the People's Republic of Poland, to the extent that it concerns Germany (as a whole). The meaning of the clause of Article 9 of the Treaty also becomes evident from the exchange of letters between the two negotiators, in which they inform each other of the notes to the ambassadors of France, Britain and the United States and to the ambassador of the Soviet Union, and in the "declarations by both parties relating to Berlin (West)", in which reference is made to the Four-Power agreement of 3 September 1971, concerning Berlin.

3. Taking the circumstances set forth into consideration, it becomes clear what importance attaches to the formulas used in the political debate, "existing special relationships between the two States" and "the Treaty has a special nature corresponding with these special circumstances": the German Democratic Republic is in the international-law sense a State and as such a subject of international law. This finding is independent of recognition in international law of the German Democratic Republic by the Federal Republic of Germany. Such recognition has not only never been formally pronounced by the Federal Republic of Germany but on the contrary repeatedly explicitly rejected. If the conduct of the Federal Republic of Germany towards the German Democratic Republic is assessed in the light of its détente policy, in particular the conclusion of the Treaty as de facto recognition, then it can only be understood as de facto recognition of a special kind.

The special feature of this Treaty is that while it is a bilateral Treaty between two States, to which the rules of international law apply and which like any other international treaty possesses validity, it is between two States that are parts of a still existing, albeit incapable of action as not being reorganized, comprehensive State of the Whole of Germany with a single body politic, the borders of which there is no need to define precisely here. There follows from this the special legal closeness of the two States to each other, and consequently the regulation in Article 8 whereby both States exchange not ambassadors, but permanent representations to the seat of their respective governments, and there follows also the special nature of the ratification procedure, which ends not with the exchange of instruments of ratification on the basis of authorization by the Federal President, but with the exchange of "corresponding notes", of which the one from the Federal Republic of Germany is drawn up by the Federal Government, and there follows, finally, the overall tendency of the Treaty to reach as close as possible cooperation between the Contracting Parties with a view to improving human relationships across the common border (6th Clause of the preamble, Article 7 of the Treaty and the additional protocol). Declaration no.1 in the additional protocol, on Article 7, that trade between the Federal Republic of Germany and the German Democratic Republic will be developed on a basis of the existing agreements, further makes it clear that this trade is agreed by the Contracting Parties not to be regarded as foreign trade. To that extent, the special feature of the Treaty can also be clarified by the formula that it regulates "inter se relationships". However, it does not regulate exclusively such relationships, and is therefore not outside the order of general international law, and thus does not belong to a specific, special order of law created by it and restricted in object. This interpretation is prevented by the arrangements in Article 2 and Article 3 of the Treaty, which for the relationship between the parties explicitly mention as essential the United Nations Charter. The Treaty therefore has a dual character: it is by its nature a Treaty under international law, but by its specific content a Treaty that above all regulates inter se relationships, Regulating inter se relationships in an international treaty may be necessary above all where a State legal order is absent, as is the case here because of the disorganization of the overall State. Even in the Federal State, regulations among member States are evaluated in accordance with the rules of international law should a provision be absent from the Federal Constitution (cf. the decision of the Constitutional Court for the German Reich, Lammers-Simons, I, 178 ff., 207 ff.; and the further development according to the law of the Basic Law: BVerfGE 1, 14 [51]; 34, 216 [230 ff.]). Accordingly the view that every "two State model" is incompatible with the order of the Basic Law is wrong.

V.

In detail, the following further observations are to be made regarding the constitutional assessment of the Treaty.

1. As set forth above, the precept of reunification in the Basic Law sets constitutional bounds to the freedom of action of the State organs, as follows: no legal position under the Basic Law which serves reunification on the basis of the free self-determination of the German people may be given up, nor may any legal instrument incompatible with the Basic Law be created with the involvement of the constitutional organs of the Federal Republic of Germany, which may be used against the Federal Government's efforts at reunification. In this context the Federal Government's letter on German unity to the government of the German Democratic Republic has its significance: following the outcome of the oral proceedings of 19 June 1973, it is clear that the essential content of the letter was announced before the negotiations were concluded and the letter delivered to the other party immediately before signature of the Treaty. It states that the Treaty is not in contradiction "with the political objective of the Federal Republic of Germany to work towards a situation of peace in Europe in which the German people will regain their unity in free self-determination".

This letter, to be understood in the light of the constitutional position set out above and the Treaty obligation under Article 7 of the German Treaty entered into earlier and cited above, merely confirms what follows from the interpretation of the Treaty itself, as follows.

The preamble to the Treaty uses the words: "irrespective of the differing views of the Federal Republic of Germany and the German Democratic Republic on questions of principle, among them the national question". The "national question" is for the Federal Republic of Germany more specifically the Basic Law's precept of reunification, to the effect of the "maintenance of the national unity of the German people". The preamble, read this way, is a decisive basis for interpreting the whole Treaty: it is not in contradiction with the Basic Law's precept of reunification. The Federal Government does not by the Treaty lose the legal title to be able, everywhere in international transactions, even vis-à-vis the German Democratic Republic, to continue to promote the national unity of the German people through free self-determination and in its policy to pursue this goal by peaceful means, in accordance with the general principles of international law. The Treaty is not a Treaty of division, but a Treaty which does not either today or for the future rule out the Federal Government's at all times doing everything possible to ensure that the German people can reorganize its national unity. It may be a first step in a longish process, initially ending with one of the many variants of confederation known to international law, that is, a step in the direction of the accomplishment of the reunification of the German people in a State, that is, the reorganization of Germany.

2. In Article 3 (2) of the Treaty the Contracting Parties confirm "the inviolability of the border between them now and in the future, and commit themselves to unrestricted respect for their territorial integrity". There are borders of differing legal quality: administrative borders, borders of demarcation, borders of spheres of interest, a border of the area to which the Basic Law applies, the borders of the German Reich as at 31 December 1937, national borders, and among these in turn those enclosing a whole State and those which within a whole State separate member States (e.g. the Länder of the Federal Republic of Germany) from each other. The fact that Article 3 (2) means a border in national law follows unambiguously from the remaining contents of the Treaty (Articles 1, 2, 3 (1), 4, 6). For the question whether recognition of the border between the two States as a State border is compatible with the Basic Law, the decisive aspect is the terming as a border in national law between two States, the "special feature" of which is that they exist on the basis of the still existing State "Germany as a whole", that is, that it is a border in national law similar to those between the Länder of the Federal Republic of Germany. This qualification of the border is compatible on the one hand with the agreement that the two States will develop "normal good-neighbourly relationships with each other on the basis of equal entitlements" (Article 1 of the Treaty), the agreement whereby both States will be guided by the principle of a "sovereign equality of all States", embodied in the United Nations Charter (Article 2 of the Treaty) and the agreement that both States will base themselves on the principle that the sovereign power of each of the two States is confined to its State territory and that they will respect the independence and autonomy of each of the two States in internal and external affairs (Article 6 of the Treaty). On the other hand, this qualification of the State border in Article 3 (2) of the Treaty takes account of the Basic Law's claim that the national question, that is, the demand to attain the national unity of the German people, remains open.

Where Article 3 (2) of the Treaty uses the word "confirms", it cannot be deduced from this that this refers only to an arrangement arrived at elsewhere - in the Moscow Treaty - that has given the border the nature of a border in national law, that is, that the Treaty provision is to have no constitutive significance. Borders may be recognized and guaranteed by treaty as State borders many times. And this is of legal importance, because the fate of the various treaty recognitions may be different. Accordingly, without it being necessary to investigate what legal importance attaches to the corresponding provision in the Moscow Treaty, it should be taken as a basis that Article 3 (2) of the Treaty contains a new and additional treaty recognition of the border between the Federal Republic of Germany and the German Democratic Republic, and constitutively guarantees this border. It is, in the qualification given above (and only with this qualification) compatible with the Basic Law.

The fact that by the rules of international law applying to the Treaty the agreement in Article 3 (2) of the Treaty too on the existence and course of the border does not stand in the way of a future change by mutual agreement goes without saying.

3. In Article 6 the Contracting Parties agree that they shall base themselves on the principle that the sovereign power of each of the two States be confined to its State territory and that they will respect the independence and autonomy of each of the two States in domestic and foreign affairs. This agreement too is compatible with the Basic Law only if interpreted to the effect that for the Federal Republic of Germany the basis of this Treaty is the continued existence of Germany, which has according to the Basic Law to be recognized as a State (albeit not organized and therefore not capable of action), and that accordingly the mutual restriction of sovereign power to the territory of the State and respect for the independence and autonomy of each of the two States in domestic and foreign affairs has its reference to the special situation in which both States find themselves vis-à-vis each other as sub-States of Germany as a whole.

4. Article 23 Basic Law states: "For the time being, this Basic Law shall apply in the territory of the Länder....in other parts of Germany it shall be put into force on their accession". The fact that this provision is intrinsically connected with the reunification precept is plain. But that is not the point here. The provision has its own significance, and is by its content among the central provisions which give the Basic Law its special character. It states that this Federal Republic of Germany regards itself as territorially incomplete, that it is obliged, as soon as it becomes possible and the willingness of other parts of Germany to accede is present, to do what it can towards this in virtue of this constitutional provision, and that it will not "completely" be what it wishes to be until the other parts of Germany belong to it. This "legal openness" to the desired growth lies specifically in the fact that it, the Federal Republic, is legally sole master of the decision on incorporating the other parts as soon as these have decided in favour of acceding. Accordingly, this provision prohibits the Federal Government from becoming involved through treaty in a dependency, whereby legally it could no longer alone, but only in agreement with its treaty partner, bring about the incorporation. This is something different from the political, de facto dependency of any Federal government of at the moment having a chance to incorporate a further part of Germany only if the parts of Germany that have in the interim taken on a different State organization create the preconditions for "incorporation", in accordance with their constitutional law.

Article 23 Basic Law has neither been overtaken by political developments nor for any other reason otherwise become legally obsolete. It continues to apply unchanged.

"Other parts of Germany" have, to be sure, since found their State form in the German Democratic Republic. Organized in this way, they can express their wish to unite with the Federal Republic (their "accession") only in the form permitted by their constitution. The pre-condition for bringing about accession, then, is a constitutional procedure in the German Democratic Republic, not accessible to legal influence by the Federal Republic. This does not however affect the described constitutional obligation contained in Article 23 Basic Law, to keep accession open for other parts of Germany. Nor has the Treaty altered anything in this. In other words, the dependency on the legal will of the German Democratic Republic in bringing about the incorporation of other parts of Germany accepted in the Treaty is nothing other than an affirmation of what was in any case legally the case, now that other parts of Germany have organized themselves into a State, the "German Democratic Republic". This does, though, at the same time mean that none of the Treaty provisions can be interpreted to the effect that the readiness of (and the requirement on) the Federal Government to bring about that which is by Article 23 Basic Law made a duty on it was anti-constitutional conduct. This incorporation of the other parts of Germany into one free German State, which must also remain legally possible after the entry into force of the Treaty, is the legal view laid down by the Basic Law, which is to be opposed to the political conception of the German Democratic Republic that there ought to be unification only in a future German Communist State.

5. As far as the compatibility of the Treaty with the Basic Law's citizenship regulations in Article 16 and 116 (1) Basic Law is concerned, the position is as follows. The Federal Republic has stated in a protocol that: "Citizenship questions have not been regulated by the Treaty." But the fact that a regulation of citizenship questions has not been arrived at does not remove the question whether the Treaty might not have effects on citizenship within the meaning of Article 16 and Article 116 (1) Basic Law, and which of these effects might be in contradiction with the provisions mentioned of the Basic Law.

Article 16 Basic Law takes it that the "German citizenship", referred to in Article 116 (1) Basic Law, is at the same time the citizenship of the Federal Republic of Germany. A German citizen within the meaning of the Basic Law is, accordingly, not only a citizen of the Federal Republic of Germany. For the Federal Republic of Germany, a German does not lose this German citizenship by the fact that another State denies it. Such denial may not be legally recognized by the Federal Republic of Germany; for it, it is without effect.

The status within the meaning of the Basic Law of a German possessing this German citizenship established in the Basic Law, may not be reduced or curtailed by any measure attributable to the Federal Republic of Germany. This follows from the obligation on the home country of protection which follows from the status of having citizenship. In particular, it is part of this that a German, whenever he comes within the area protected by the State order of the Federal Republic of Germany has - unless he renounces it - an entitlement to seek his rights according to the law of the Federal Republic of Germany before its courts. For that reason the Federal Constitutional Court has allowed ordre public to be enforced even in respect of judgments by courts in the Federal Republic of Germany, which is not a foreign country (BVerfGE 11, 150 [160 f.]). The further consequences may be left out of account for the moment. At any rate, were the Treaty to be understood to the effect that citizens of the German Democratic Republic were no longer to be treated as Germans within the meaning of Article 16 and Article 116 (1) Basic Law in the area to which the Basic Law applies, then it would clearly be in contradiction with the Basic Law. Accordingly, in order to be constitutionally proper, the Treaty requires the interpretation that the German Democratic Republic has not after entry into force of the Treaty become a foreign country for the Federal Republic of Germany, in this connection too. The Treaty requires further the interpretation that - irrespective of any regulation of citizenship law in the German Democratic Republic - the Federal Republic of Germany treats every citizen of the German Democratic Republic who arrives in the area protected by the Federal Republic and its Constitution as a German within the meaning of Article 116 (1) and 16 Basic Law, like every citizen of the Federal Republic. Accordingly, where he arrives in the area in which the Basic Law applies, he also enjoys the full protection of the courts of the Federal Republic, and all guarantees of the fundamental rights under the Basic Law, including the fundamental right under Article 14 Basic Law. Any curtailment of constitutional protection of rights accorded by the Basic Law through the Treaty or an agreement to implement the Treaty would be anti-constitutional.

6. The same applies to interpretation of the protocol note: "Because of the differing legal positions on asset questions, these could not be settled by the Treaty".

7. From the special nature of the Treaty set forth, it follows that the Treaty is not incompatible either with the duty imposed on the Federal Government by the Basic Law to provide all Germans within the meaning of Article 116 (1) Basic Law with care and protection. It is empowered as before, within the area to which the Basic Law applies, through all its diplomatic representations and on all international bodies of which it is a member to raise its voice, assert its influence and act for the interests of the German nation, to protect Germans within the meaning of Article 116 (1) Basic Law and also to provide assistance to any of them who approaches an office of the Federal Republic of Germany with a request for effective support in defence of rights, particularly fundamental rights. Here in the future too there will continue to be no legal distinction between citizens of the Federal Republic of Germany and "other Germans". The peculiar characteristic of the Treaty is precisely in the fact that it itself as a "Basic Treaty" alongside the legal bases that already underlay the legally special relationship between the Federal Republic of Germany and the German Democratic Republic - the legal basis of Germany as a whole, which had not disappeared though not organized, and Four-Power responsibility for this Germany as a whole - an additional new legal basis linking the two States in Germany closer to each other than do normal international treaties between two States.

8. The Treaty changes nothing in the legal position of Berlin, as always defended by Bundestag, Bundesrat and Federal Government, Länder of the Federal Republic and the Federal Constitutional Court jointly, further to the Basic Law. The Basic Law continues in future to oblige all constitutional organs in Federation and Länder to assert this legal position without restriction and to engage themselves on its behalf. It is only in this context that the declarations of both sides in relation to Berlin (West) can be interpreted and understood.

This means inter alia that the agreement in Clause 1 of the declarations, whereby the extension of agreements and arrangements provided for in the additional protocol on Article 7 in accordance with the Four-Power agreement of 3 September 1971 to Berlin West can in every case be agreed, in no way restricts the duty under the Basic Law on agencies acting for the Federal Republic of Germany to insist in the case of every agreement and every accord with the German Democratic Republic which by its content could be extended to Land Berlin and its citizens on that extension to Berlin and to conclude it only where the legal position of Berlin and its citizens by comparison with the legal position applying in the area to which the Basic Law applies - subject to the Allied reservation applying to Berlin and "in accord with the Four-Power agreement of 3 September 1971" - is not curtailed.

The same applies to the agreement in Clause 2 whereby the permanent representation of the Federal Republic of Germany in the German Democratic Republic will represent the "interests" of Berlin (West).

Finally, it should be noted that the possibility provided for in Clause 3 of "agreements between the German Democratic Republic and the Senate" does not free Land Berlin from compliance with the order of the Basic Law.

9. Everything so far said on interpretation of the set of Treaties applies analogously to conclusion of the additional treaties provided for in the additional protocol on Article 7 and otherwise conceivable in implementation of the Treaty, and similar agreements with the German Democratic Republic. This means for instance that:

a) The post and telecommunications agreement provided for in the additional protocol to Article 7 (5) may not contain a curtailment or relaxation of the guarantee of secrecy of letters, post and telecommunications (Article 10 Basic Law) nor a restriction on the free exchange of opinions and information provided for in Article 5 Basic Law, whether for Germans in the Federal Republic of Germany or for those in the German Democratic Republic. And the trade between the Federal Republic of Germany and the German Democratic Republic referred to in the additional protocol on Article 7 (1), based on existing agreements, may not in the course of future developments become foreign trade; that is, no customs frontier may be agreed in this area.

b) As far as television and broadcasting are concerned, being independent of the State as far as the shaping of programmes is concerned, it is to be clearly stated that nothing is altered by the Treaty here either, that in particular the Treaty does not provide any legal basis for forbidding broadcasts undesired in the German Democratic Republic by corresponding statutory or administrative measure. Whatever is broadcast in the Federal Republic of Germany within the general guidelines for the various institutions and within the context of the existing Acts on the organization of the institutions cannot be regarded as incompatible with the Treaty; the Federal Republic of Germany may certainly not enter into an agreement whereby this freedom of the institutions would be restricted. In other words, the fundamental right under Article 5 Basic Law cannot be restricted by referring to the Treaty even where the other side works with the assertion that certain broadcasts contradict the content and spirit of the Treaty because they are intervention in the internal affairs of the Treaty partner and ought therefore to be forbidden in compliance with the obligation undertaken by the Treaty.

c) The same applies to the fundamental right of freedom of association. The formation of associations undesirable to the other party because of their programme can, as long as they keep to the order of the Basic Law, not be restrained if the Treaty partner finds their goals and propaganda incompatible with the content and spirit of the Treaty and calls for them to be banned for alleged intervention in internal affairs of the German Democratic Republic.

d) Nor can the Treaty be understood to the effect that it dispenses the Federal Government and all other organs in Federation and Länder from the constitutional obligation to keep the public consciousness alive not only to the existing common features but also to the ideological, political and social distinctions that exist between the way of life and legal order of the Federal Republic of Germany and those of the German Democratic Republic. Any attempt to limit the Federal Government in this sphere in its freedom and in its constitutional defence of the interests of the free democratic basic order with the assertion that it infringed the spirit and content of the Treaty and was intervention in internal affairs of the German Democratic Republic and therefore in conflict with the Treaty would itself be contrary to the Treaty.

e) Finally, it must be clear that the present practice at the border between the Federal Republic of Germany and the German Democratic Republic is simply incompatible with the Treaty, that is the wall, barbed wire, free-fire zones and the order to shoot. To that extent, the Treaty provides an additional legal basis for the Federal Republic to do everything it can to carry out its duty under the Basic Law to change and bring about the abolition of these inhuman conditions.

VI.

In conclusion, to clarify the meaning of these grounds of judgment, some further observations are required.

1. The present grounds deal with the Treaty as an Act enacted by the Federal legislator, accordingly leaving aside the fact that there are also specific limits on interpreting the Treaty. They have been taken account of by the consideration that all statements on the interpretation of the Treaty in conformity with the Constitution can be led back to the single basic dissent that the Treaty itself sets out in the preamble: the Contracting Parties are agreed that they have not agreed on the "national question"; verbatim, it says: "irrespective of the differing views of the Federal Republic of Germany and the German Democratic Republic on questions of principle, including the national question". It is therefore in this case in line with the special rules for interpreting treaties for the judgment to draw from this dissent all the consequences for the interpretation of the Treaty that the Federal Republic of Germany as Treaty partner must in accordance with the law of the Basic Law lay claim to for itself.

2. From what has been said so far it follows that the Treaty, as a Treaty really meant to be fulfilled, is of extreme importance legally and not only because of its existence and content but above all as a framework for future follow-up treaties. All statements in the grounds of judgment, including those not referring exclusively to the content of the Treaty itself, are necessary, and are therefore within the meaning of the case law of the Federal Constitutional Court part of the grounds underpinning the decision.

3. The German Democratic Republic took full cognizance before the entry into force of the Treaty (20 June 1973) of the proceedings pending before the Federal Constitutional Court, of the powers of the Federal Constitutional Court, of the fact that the Federal Government and all constitutional organs, courts and authorities of Federation and Länder are bound by the decisions of the Federal Constitutional Court, it knew the legal positions taken by the Federal Government in legislative procedures not in substance contradicting the legal view that has through this judgment become binding, and knew the full text of the Treaty Act published in the Federal Gazette, including the letter on German unity already announced when the Treaty was initialled, and had been continually been reminded by the Federal Government - without being contradicted by the other side - that it could conclude the treaty only insofar as it was compatible with the Basic Law. These circumstances are on an international-law approach too and in particular vis-à-vis the Treaty partner able to give the Treaty the interpretation required according to the Basic Law. This is in harmony with a principle of general customary international law of importance in the practice of States, where the question is whether exceptionally one party to a treaty may vis-à-vis the other appeal to the fact that the latter could and must have recognized the fact that the treaty, on a particular interpretation, was in conflict with domestic constitutional law.

VII.

This decision was taken unanimously.

Judges: Seuffert, Dr. v.Schlabrendorff, Dr. Rupp, Dr. Geiger, Hirsch, Dr. Rinck, Wand

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