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The Legal Status of Germany According to the Declaration of Berlin

Published online by Cambridge University Press:  25 April 2017

Hans Kelsen
Hans Kelsen*
Affiliation:
University of California
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Extract

According to the Declaration made at Berlin on June 5, 1945, by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom, and the Provisional Government of the French Republic, these Governments have assumed “ supreme authority with respect to Germany including all the powers possessed by the German Government, the high command, and any state, municipal, or local government or authority.” This means that the German territory, together with the population residing on it, has been placed under the sovereignty of the four powers. It means further that the legal status of Germany is not that of “ belligerent occupation” in accordance with the Articles 42 to 56 of the Regulations annexed to the Hague Convention respecting the Laws and Customs of War on Land of 1907. After Germany's unconditional surrender and especially after the abolition of the last German Government, the Government of Grand Admiral Doenitz, the status of belligerent occupation has become impossible. This status presupposes that a state of war still exists in the relationship between the occupant state and the state whose territory is under belligerent occupation. This condition implies the continued existence of the state whose territory is occupied and, consequently, the continued existence of its government recognized as the legitimate bearer of the sovereignty of the occupied state. This is the reason why it is generally assumed that belligerent occupation does not confer upon the occupant power sovereignty over the occupied territory. By belligerent occupation the legitimate government is made incapable of exercising its authority and is only substituted for the period of occupation by the authority of the occupant power. The legitimate government of the occupied state, especially the head of the state, may be expelled from the occupied territory and may have established his seat on the territory of an ally; the government, and especially the head of the occupied state, may even be made prisoners of war. But the government must continue to exist and must be recognized as such by the occupant power. The latter must be willing to conclude with this government a treaty of peace and to hand back to it the whole or a part of the occupied territory.

Type
Research Article
Information
American Journal of International Law , Volume 39 , Issue 3 , July 1945 , pp. 518 - 526
Copyright
Copyright © American Society of International Law 1945

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References

1 L. Oppenheim, International Law, 1940 (6th ed.), Vol. II, p. 467.

2 After the Spanish-American War Cuba was occupied by and placed under the sovereignty of the United States without being annexed by the latter. The case of Cuba differs however from that of Germany: 1. The occupation of Cuba took place in accordance with a treaty concluded between Spain and the United States, the Treaty of Paris of December 10, 1898; 2. The exercise of the United States’ sovereignty over Cuba was restricted to a definite purpose, the pacification of the island. The fourth point of the joint resolution of both houses of Congress of April 20, 1898, runs as follows: “that the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination when that is accomplished to leave the government and control of the island to its people.” This declaration was incorporated in the ultimatum forwarded to Spain. The Supreme Court characterized the relationship between the United States and Cuba by declaring that the island “is territory held in trust for the inhabitants of Cuba to whom it rightfully belongs.” ﹛Neeley v. Henkel, 180 U. S. 109, 120). This is a political rather than a legal definition of the status of Cuba. According to international law a territory “belongs” to a state, not to a people, that is to say, only a state, not a people, can be the territorial sovereign. During the occupation by the United States, Cuba was certainly not a sovereign state, neither was it no state's land. The only state under whose sovereignty the island could be, and actually was, placed was the United States; the self-imposed restriction, whether called trusteeship or otherwise, was of no legal importance for the status of Cuba from the point of view of international law.

3 See L. Oppenheim, International Law, 1937 (5th ed.), Vol. I, pp. 352 f.

4 Quoted from writer's article “The International Legal Status of Germany to be Established Immediately upon Termination of the War,” this Journal, Vol 38, No. 4 (October 1944), p. 689.

5 Same, p. 693. The legal status of Germany as established by the Declaration of Berlin is about the same as suggested in the article mentioned above.