Order of the Second Senate of 31 July 1973

Reasons:

A.

I.

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On 8 November 1972, the Treaty negotiated between the Federal Republic of Germany and the German Democratic Republic on Relations between the Federal Republic of Germany and the German Democratic Republic – hereinafter ‘the Treaty’ – was initialled. […]

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The Treaty reads as follows [English translation published by the Federal Press Office]:

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Article 1

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The Federal Republic of Germany and the German Democratic Republic shall develop normal, good-neighbourly relations with each other on the basis of equal rights.

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Article 2

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The Federal Republic of Germany and the German Democratic Republic will be guided by the aims and principles laid down in the United Nations Charter, especially those of the sovereign equality of all States, respect for their independence, autonomy and territorial integrity, the right of self-determination, the protection of human rights, and non-discrimination.

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Article 3

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In conformity with the United Nations Charter, the Federal Republic of Germany and the German Democratic Republic shall settle any disputes between them exclusively by peaceful means and refrain from the threat or use of force.

They reaffirm the inviolability now and in the future of the frontier existing between them and undertake fully to respect each other’s territorial integrity.

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Article 4

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The Federal Republic of Germany and the German Democratic Republic proceed on the assumption that neither of the two States can represent the other in the international sphere or act on its behalf.

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Article 5

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The Federal Republic of Germany and the German Democratic Republic shall promote peaceful relations between the European States and contribute to security and cooperation in Europe. They shall support efforts to reduce forces and arms in Europe without allowing disadvantages to arise for the security of those concerned.

The Federal Republic of Germany and the German Democratic Republic shall support, with the aim of general and complete disarmament under effective international control, efforts serving international security to achieve armaments limitation and disarmament, especially with regard to nuclear weapons and other weapons of mass destruction.

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Article 6

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The Federal Republic of Germany and the German Democratic Republic proceed on the principle that the sovereign jurisdiction of each of the two States is confined to its own territory. They respect each other’s independence and autonomy in their domestic and external affairs.

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Article 7

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The Federal Republic of Germany and the German Democratic Republic declare their readiness to regulate practical and humanitarian questions in the process of the normalization of their relations. They shall conclude agreements with a view to developing and promoting on the basis of the present Treaty and for their mutual benefit cooperation in the fields of economics, science and technology, transport, judicial relations, posts and telecommunications, health, culture, sport, environmental protection, and in other fields. The details have been agreed in the Supplementary Protocol.

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Article 8

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The Federal Republic of Germany and the German Democratic Republic shall exchange Permanent Missions. They shall be established at the respective Government's seat.

Practical questions relating to the establishment of the Missions shall be dealt with separately.

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Article 9

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The Federal Republic of Germany and the German Democratic Republic agree that the present Treaty shall not affect the bilateral and multilateral international treaties and agreements already concluded by them or relating to them.

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Article 10

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The present Treaty is subject to ratification and shall enter into force on the day after the exchange of appropriate notes.

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The Treaty was signed in Berlin on 21 December 1972 by the authorised representatives of the parties to the Treaty; an additional protocol agreed by the parties was attached to it. Moreover, there were [a number of notes, declarations and correspondence] made in connection with the Treaty:

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[…]

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Immediately prior to the signing of the Treaty, the Government of the German Democratic Republic received a letter from the Government of the Federal Republic of Germany dated 21 December 1972 on the issue of German unity.

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Following deliberation and discussion in the legislative bodies, the Act of 6 June 1973 on the Treaty of 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on Relations between the Federal Republic of Germany and the German Democratic Republic (Federal Law Gazette II p. 421) – hereinafter ‘the Treaty Act’ [...] – was passed:

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In accordance with the promulgation on its entry into force of 22 June 1973 (Federal Law Gazette II p. 559), the Treaty entered into force on 21 June 1973.

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[…]

II.

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1. On 28 May 1973, the Government of the Free State of Bavaria applied to the Federal Constitutional Court pursuant to Art. 93(1) no. 2 of the Basic Law (Grundgesetz – GG) in conjunction with § 13 no. 6 and § 76 no. 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) for a declaration that:

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

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[…]

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2. The Federal Government has applied for a declaration that:

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the Act on the Treaty of 21 December 1972 between the Federal Republic of Germany and the German Democratic Republic on Relations between the Federal Republic of Germany and the German Democratic Republic is compatible with the Basic Law.

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[…]

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3. […]

B.

I.

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Pursuant to the case law of the Federal Constitutional Court, to which the Senate adheres, the application is admissible (cf. in particular Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 4, 157 [161 ff.]). This applies even though, as set out below, the German Democratic Republic is not a foreign country under the Basic Law. This is because Art. 59(2) of the Basic Law requires parliamentary control in the form of an act of approval for all treaties that regulate the political relations of the Federation or relate to subjects of federal legislation, regardless of whether the treaty partner involved  is a foreign country under the Basic Law or not.

II.

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1. These judicial review proceedings concern the Treaty Act of 6 June 1973 and the Treaty referred to therein, including the additional protocol. […]

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2. The relevant standard in judicial review proceedings is the Basic Law. It is for the Federal Constitutional Court to interpret the Basic Law in a binding manner. On this basis, there is no tension between political reality and the constitutional order that could be resolved by the consideration that the applicable constitutional order might be altered by treaty. A treaty does not create substantive constitutional law, nor can it be used to interpret the Basic Law. Rather, the converse is true: a treaty that contravenes applicable constitutional law can only be brought into compliance with the Basic Law through a corresponding constitutional amendment.

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That said, the general principle developed by the Federal Constitutional Court in consideration of the responsibility of the other constitutional organs within the free democratic state under the rule of law laid down by the Basic Law also applies to the constitutional review of a treaty: that among several possible interpretations, the interpretation to be chosen is the one according to which the treaty is valid under the Basic Law (cf. BVerfGE 4, 157 [168]). Another important principle of interpretation, particularly in connection with the constitutional review of treaties, is that when interpreting constitutional provisions regarding relations between the Federal Republic of Germany and other States, the boundary-setting character of such provisions, i.e. their function in establishing room for political manoeuvre, must not be disregarded. By setting limitations, the Basic Law sets legal boundaries for all political powers, including in the area of foreign policy; this is the essence of the rule of law established by the Basic Law. The Federal Constitutional Court is ultimately responsible for enforcing this constitutional order.

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The principle of judicial self-restraint, which the Federal Constitutional Court imposes on itself, does not mean a curtailment or weakening of the above mentioned powers, but rather forbearance from ‘engaging in politics’, that is, intervening in the space to freely shape policy that has been created and limited by the Constitution. It therefore aims to safeguard the constitutionally guaranteed leeway for the other constitutional organs to freely shape policy.

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It follows from the foregoing that it is of crucial importance that a decision in judicial review proceedings concerning a treaty be made before the treaty enters into force. All constitutional organs must take this into account consistent with the basic constitutional relationship existing among them. On the one hand, this means that the Federal Constitutional Court must complete its constitutional review as quickly as possible. On the other, it means that the other constitutional organs must include, in their considerations regarding the timing of the treaty ratification procedure, the jurisdiction of the Federal Constitutional Court to carry out a judicial review and also refrain from any action that could make it difficult or impossible for the Federal Constitutional Court to exercise its power of review in a timely and effective manner. It is incompatible with the comprehensive constitutional jurisdiction enshrined in the Basic Law for the executive to override proceedings that are pending before the Federal Constitutional Court. If, as in this case, an exceptional situation arises that, in the opinion of the executive, makes the entry into force of a treaty prior to the conclusion of Constitutional Court proceedings unavoidable, the constitutional organs responsible must answer for any possible consequences (cf. Federal Constitutional Court, Judgment of 18 June 1973, p. 6 f. - 2 BvQ 1/73 - ).

III.

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The Treaty governs the basic relations between the Federal Republic of Germany and the German Democratic Republic. In reviewing its terms, it is necessary to examine what the Basic Law says about Germany’s legal status:

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1. The Basic Law itself – and not just a mere scholarly theory of international and constitutional law – assumes that the German Reich survived the collapse of 1945 and did not cease to exist either with the capitulation, through the exercise of foreign sovereignty in Germany by the Allied occupying powers, or later; this follows from the Preamble and from Art. 16, Art. 23, Art. 116 and Art. 146 of the Basic Law. This is also consistent with the established case law of the Federal Constitutional Court, to which the Senate adheres. The German Reich continues to exist (BVerfGE 2, 266 [277]; 3, 288 [319 f.]; 5, 85 [126]; 6, 309 [336, 363]) and still has legal capacity, but is not itself capable of acting as an overall state due to a lack of organisation, in particular, due to a lack of institutionalised organs. The concept of a unified German body politic and unified German state authority is also ‘enshrined’ in the Basic Law (BVerfGE 2, 266 [277]). Responsibility for ‘Germany as a whole’ is – also – borne by the four powers (BVerfGE 1, 351 [362 f., 367]).

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The establishment of the Federal Republic of Germany did not mean that a new West German state was founded, but that a portion of Germany was reorganised (see Carlo Schmid in the 6th session of the Parliamentary Council – official meeting minutes. p. 70). Accordingly, the Federal Republic of Germany is not the ‘legal successor’ of the German Reich, but as a state is identical to the state called the ‘German Reich’ – albeit only partially so in geographical terms, meaning that the identity does not lay claim to exclusivity in that regard. Thus, as far as its body politic and national territory are concerned, the Federal Republic accordingly does not encompass the whole of Germany, notwithstanding the fact that it recognises a unitary body politic of ‘Germany’ (German Reich) as the subject of international law, to which its own population belongs as an inseparable part, and a unitary territory of ‘Germany’ (German Reich), to which its own national territory belongs as an equally inseparable part. In terms of constitutional law, the Federal Republic confines its sovereign authority to the ‘area in which the Basic Law applies’ (cf. BVerfGE 3, 288 [319 f.]; 6, 309 [338, 363]), but it also feels responsible for the whole of Germany (cf. the Preamble to the Basic Law). At present, the Federal Republic consists of the Länder listed in Art. 23 of the Basic Law, including Berlin; the status of the Land Berlin of the Federal Republic of Germany is only derogated and encumbered by the ‘reservation of the governors of the Western powers’ (BVerfGE 7, 1 [7 ff.]; 19,377 [388]; 20, 257 [266]). The German Democratic Republic belongs to Germany and cannot be regarded as a foreign country in relation to the Federal Republic of Germany (BVerfGE 11, 150 [158]). That is why, for example, inter-zonal trade and the corresponding intra-German trade did not constitute foreign trade (BVerfGE 18, 353 [354]).

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2. The Federal Constitutional Court has made – and the Senate reaffirms –the following findings with regard to the reunification clause and the right to self-determination contained in the Basic Law: the Preamble to the Basic Law not only has political significance, it also has legal substance. Reunification is a constitutional imperative. However, it must be left to those organs of the Federal Republic called upon to take political action to decide which paths they regard as politically appropriate and expedient to bring about reunification. The constitutional organs, which are also obliged by the Basic Law to protect the free democratic basic order and its institutions, must decide whether an otherwise constitutional measure would legally hinder reunification or make it de facto impossible and, on that basis, must be refrained from. There is a broad scope for political discretion here, particularly for the legislative bodies. The Federal Constitutional Court can only oppose the legislator if it clearly exceeds the limits of this discretion, i.e. if its measure clearly stands in the way of peaceful reunification, either de jure or de facto (BVerfGE 5, 85 [126 f.]; 12, 45 [51 f.]).

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This requires the following further clarification: the first point that follows from the reunification clause is that no constitutional organ of the Federal Republic of Germany may abandon the restoration of German unity as a political aim; all constitutional organs are obliged to work towards the achievement of this aim in their policies –including the obligation to keep the claim to reunification alive domestically and to persistently defend it externally – and to refrain from doing anything that would prevent reunification. However, it is the Federal Government’s responsibility to decide the political ways and means to be used to achieve the aim of reunification, which is legally required under the Basic Law, or at least seek to bring that aim closer to fulfilment. It is up to the Federal Government and the parliamentary majority supporting it to assess its policies’ likelihood of success. In this respect, the Court must not criticise or express an opinion on the prospects of the policies. The political responsibility lies solely with the political authorities. However, one limit in the constitutional state of the Federal Republic of Germany which the Federal Constitutional Court must make clear, define and, where appropriate, enforce lies in the fact that the Constitution prohibits the Federal Republic of Germany from renouncing a legal title under the Basic Law with which it may work towards the realisation of reunification and self-determination, or from creating a legal title that is incompatible with the Basic Law, or from participating in the creation of such legal title which may be invoked against it in its pursuit of this aim. There is a difference between refraining from making political use of a legal title – as long as there is no risk of the legal title being forfeited – and not considering it suitable as a political instrument either at present or for the foreseeable future, i.e. accepting that it cannot be used to achieve political success and renouncing it in the legal sense. In this sense, it is therefore possible to come to terms with political realities. However, in doing so, the Basic Law requires that no legal title founded on its basis that might provide an argument to promote endeavours towards reunification either now or in the future be surrendered. The same applies in the converse: political conduct may later turn out to be a ‘miscalculation’ and might be invoked politically by others against the Federal Government in its efforts to achieve reunification; this situation – which the Constitutional Court shall not comment on at all – is significantly different from one in which the Federal Republic of Germany is involved in a legal instrument that others can invoke against it  in its efforts to achieve reunification. […]

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The Federal Constitutional Court has never commented on the political thesis of the ‘exclusive mandate’. It had and still has no reason to examine and decide whether the Basic Law can legally justify an exclusive mandate of the Federal Republic of Germany for the whole of Germany.

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3. The Treaty can be interpreted in a way that it does not come into contradiction with any of the aforementioned principles of the Basic Law. No official statement within the Federal Republic of Germany can be understood to mean that, when interpreting the Treaty, the Federal Republic has departed or is departing from this constitutional basis.

IV.

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1. A legal assessment of the Treaty is only possible by placing it in a broader context. It is part of a broader policy, one that is closer to the German government’s policy of détente towards the East (Ostpolitik), within which the Moscow and Warsaw Treaties in particular are key milestones; these Treaties were just as much a prerequisite for the conclusion of the Treaty as the Treaty itself was a goal for the Federal Government, which it hoped to achieve by concluding those two treaties with the East. In this context, the Treaty takes on the same fundamental significance as the Moscow and Warsaw Treaties. It is not a step that, like many other political steps, can be corrected at will, but rather, as the name suggests, forms the basis for a new policy that is intended for the long term. Accordingly, it contains neither an expiration date nor a denunciation clause. It plots a historical course from which the relations between the Federal Republic of Germany and the German Democratic Republic are to be redefined. This context is significant in several ways to the legal assessment of the Treaty:

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Much like the Basic Law (cf. the Preamble, Art. 23 and 146 of the Basic Law), the Treaty does not constitute a definitive solution to the German question. However, it cannot be qualified as a mere ‘transitional solution’ pending a later ‘final’ redefinition of the relations between the two states; it is not an agreed modus vivendi that is to be replaced in the foreseeable future by another fundamental redefinition of the relations between these two states. The Treaty itself is the genuinely intended new basis for determining the relations between the two states, without prejudice to the fact that the parties to the Treaty are legally free to agree at any time to amend or supplement the Treaty in accordance with the legal principles applicable to it.

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The political significance of the Treaty set forth above gives rise to the legal conclusion that, as the basis for the new relations between the two German states, the Treaty will necessarily give rise to a number of legal provisions specifying the new coexistence and cooperation between the two states over the coming period (cf. Art. 7 of the Treaty). Each of those further legal steps must not only be in accordance with the Treaty, but also with the Constitution. It is therefore necessary to clarify now that any further legal steps taken with reference to the Treaty are not legally permissible solely because the contractual basis (the Treaty) is not objectionable under constitutional law. For this reason, the constitutional limits that exist when ‘fleshing out’ the Treaty through subsequent agreements and understandings must be – insofar as they are obvious at this stage – pointed out in these judicial review proceedings.

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2. The Treaty is embedded in more comprehensive and more specialised legal relationships, which must also be taken into account in its legal assessment. This is made particularly clear by the reference to the Charter of the United Nations in Art. 2 and Art. 3 of the Treaty and by the provision in Art. 9, according to which ‘this Treaty does not affect the bilateral and multilateral international treaties and agreements previously concluded by the parties to the Treaty or concerning them’; these are in particular the ‘Western treaties’ (Westverträge) concluded by the Federal Republic – thus, above all, Art. 7 of the General Treaty (Deutschlandvertrag) remains unaffected, according to which the Federal Republic and the Three Powers remain contractually obliged (para. 2) to work together ‘to realise their common goal by peaceful means, namely a reunified Germany with a free and democratic constitution similar to that of the Federal Republic and which is integrated into the European Community’ – as well as the Moscow and Warsaw Treaties and the Four Powers Agreements concerning Germany as a whole, but also, for example, the Border and Friendship Treaty concluded between the German Democratic Republic and the Polish People’s Republic, insofar as it affects Germany (as a whole). […]

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3. Taking into account the context described above, the significance attached to the wording used in the political debate, namely, ‘existing special relations between the two States’ and ‘the Treaty has a special nature which corresponds to these special circumstances’ becomes clear. The German Democratic Republic is a state for purposes of international law and thus a subject of international law. This finding is independent of any recognition of the German Democratic Republic by the Federal Republic of Germany under international law. Not only has the Federal Republic of Germany never formally declared such recognition, on the contrary, it has repeatedly expressly rejected it. If the conduct of the Federal Republic of Germany towards the German Democratic Republic in the course of its policy of détente, in particular the conclusion of the Treaty, is regarded as de facto recognition, then it can only be understood as de facto recognition of a special kind.

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The special feature of this Treaty is that, although it is a bilateral treaty between two states to which the rules of international law apply and has the same validity as any other treaty under international law, it is between two states that are parts of a still existing, albeit incapable of action due to a lack of reorganisation, comprehensive state of Germany with a unified body politic, and the frontiers of which need not be defined in more detail here. This means that there is a special legal closeness between the two states, which logically leads to the provision in Art. 8, according to which both states do not exchange ambassadors, but have permanent representations at the location of each respective government. This results in the special nature of the ratification procedure, which does not end with the exchange of instruments of ratification on the basis of the authorisation of the Federal President, but with the exchange of ‘corresponding formal notes’, one of which is executed by the Federal Government on behalf of the Federal Republic of Germany. Finally, this also results in the overall tendency of the Treaty to achieve the closest possible cooperation between the parties to the Treaty with the aim of improving human relations across the common frontier (6th paragraph of the Preamble, Art. 7 of the Treaty and additional protocol). The declaration in no. 1 of the additional protocol to Art. 7, which provides that trade between the Federal Republic of Germany and the German Democratic Republic will be developed on the basis of the existing agreements, also makes it clear that the parties to the Treaty agree that this trade shall not be regarded as foreign trade. In this respect, the special nature of this Treaty can also be illustrated by stating that it regulates ‘inter se relations’. However, it does not exclusively regulate such relations and therefore does not fall outside the order of general international law; that is to say, it does not belong to a specific, special order of law that is restricted in object and created entirely by the Treaty. This interpretation is precluded by the provisions in Art. 2 and Art. 3 of the Treaty, which expressly refer to the Charter of the United Nations as essential to the relations between the parties. Accordingly, the Treaty has a dual character; it takes the form of a treaty under international law while its specific content is that of a treaty that primarily regulates relations inter se. It may be necessary to regulate inter se relations in a treaty under international law, especially if there is no constitutional order, as is the case here due to the lack of organisation of the overall state. Even in a federal state, in the absence of a provision in the Federal Constitution, relations between the member states are governed by the rules of international law ([...]). The view that every ‘two-state model’ is incompatible with the constitutional order is therefore incorrect.

V.

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The following further observations are made regarding the constitutional assessment of the Treaty:

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1. As set out above, the reunification clause in the Basic Law sets constitutional limits on the freedom of action of state organs. No legal position under the Basic Law that is conducive to reunification on the basis of the free self-determination of the German people may be relinquished and, conversely, no legal instrument incompatible with the Basic Law may be created with the involvement of the constitutional bodies of the Federal Republic of Germany that may be invoked against the Federal Government’s efforts to achieve reunification. The Federal Government’s letter on German unity addressed to the government of the German Democratic Republic is significant in this context. Based on the oral hearing of 19 June 1973, it is clear that the essential content of the letter was announced before negotiations were concluded and that the letter was delivered to the other party immediately prior to the signing of the Treaty. The letter states that the Treaty does not contradict ‘the political aim of the Federal Republic of Germany to work towards a state of peace in Europe in which the German people regains its unity in free self-determination’.

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This letter, which must be understood in light of the constitutional position outlined above and the obligation under Art. 7 of the General Treaty quoted above, merely confirms what follows from the interpretation of the Treaty itself.

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The Preamble of the Treaty reads as follows: ‘without prejudice to the differing views of the Federal Republic of Germany and the German Democratic Republic on fundamental issues, including the national question’. For the Federal Republic of Germany, the ‘national question’ refers more specifically the reunification clause under the Basic Law, which refers to the ‘preservation of the state unity of the German people’. Read in this way, the Preamble is a key basis for the interpretation of the entire Treaty. It is not in contradiction with the Basic Law’s reunification clause. The Treaty does not deprive the Federal Government of the right to continue to demand the state unity of the German people by way of its free self-determination in all international relations, including vis-à-vis the German Democratic Republic, and to pursue this goal in its policies by peaceful means and in accordance with the general principles of international law. The Treaty is not a treaty of partition, but a treaty that does not rule out, either today or in the future, that the Federal Government will at all times do everything in its power to enable the German people to reorganise their state unity. It can be a first step in a longer process whose first phase ends with one of the different variants of a confederation known to international law, that is, a step towards the realisation of the reunification of the German people in one state, namely towards the reorganisation of Germany.

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2. In Art. 3(2) of the Treaty, the parties to the Treaty reaffirm ‘the inviolability now and in the future of the frontier existing between them and undertake fully to respect each other’s territorial integrity’. There are frontiers various legal qualities: administrative borders, demarcation lines, borders of spheres of interest, a boundary of the area of application of the Basic Law, the borders of the German Reich as of 31 December 1937, constitutional frontiers and, among these,  some that encompass the entire state and those that separate member states (e.g. the Länder of the Federal Republic of Germany) from one another within an overall state. The fact that Art. 3(2) refers to a state frontier is unambiguous given the other content of the Treaty (Art. 1, 2, 3(1), 4, 6). As to whether the recognition of the frontier between the two states as a state frontier is compatible with the Basic Law, the key factor is whether it qualifies as a state frontier between two states whose ‘special feature’ is that they exist on the foundation of the still existing state of ‘Germany as a whole’, in other words, that it is a state frontier similar to those between the Länder of the Federal Republic of Germany. The qualification as a state frontier is compatible with the agreement that the two States shall develop ‘normal, good-neighbourly relations with each other on the basis of equal rights’ (Art. 1 of the Treaty), that both states will be guided by the principle of ‘sovereign equality of all States’, which is laid down in the United Nations Charter (Art. 2 of the Treaty) and that both states proceed on the principle that the sovereign jurisdiction of each of the two states is confined to its own territory and that they respect each other’s independence and autonomy in their domestic and external affairs (Art. 6 of the Treaty). This qualification as a state frontier in Art. 3(2) of the Treaty also takes account of the aspiration of the Basic Law that the national question, namely the demand to achieve State unity of the German people, remains achievable.

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The use of the word ‘reaffirm’ in Art. 3(2) of the Treaty does not imply that it merely refers to a provision made elsewhere – in the Moscow Treaty – that gave the frontier the character of a state frontier, that is to say, that the Treaty provision has no constitutive meaning whatsoever. Frontiers can be recognised and guaranteed in multiple treaties as state frontiers. And this is legally significant because the fate of the various treaty recognitions can be different. It can therefore be assumed, without it being necessary to analyse the legal significance of the corresponding provision in the Moscow Treaty, that Art. 3(2) of the Treaty contains a new and additional contractual recognition of the frontier between the Federal Republic of Germany and the German Democratic Republic and constitutively guarantees this frontier. It is compatible with the Basic Law when subject to above (and only as so qualified).

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It goes without saying that, according to the rules of international law applicable to the Treaty, the agreements made in Art. 3(2) of the Treaty on the existence and demarcation of the frontier do not preclude a mutually agreed change in the future.

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3. In Art. 6, the parties to the Treaty agree that they shall proceed on the principle that the sovereign jurisdiction of each of the two states is confined to its own territory and that they respect each other’s independence and autonomy in their domestic and external affairs. This agreement, too, is only compatible with the Basic Law if interpreted to mean that, for the Federal Republic of Germany, the basis of this Treaty is the continued existence of Germany as a state (albeit one that is not organised and therefore incapable of acting), which the Federal Republic must recognise in accordance with the Basic Law, and that therefore the reciprocal restriction of sovereign jurisdiction to each state’s own territory and the respect each other’s independence and autonomy in their domestic and external affairs relate to the special relationship in which both states stand alongside of each other as constituent states of the whole of Germany.

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4. Art. 23 of the Basic Law provides: ‘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.’ It is obvious that this provision is intrinsically linked with the reunification clause. That is beside the point here. This provision has its own significance and, given its content, is one of the central provisions that give the Basic Law its special character. It states that this Federal Republic of Germany views itself as territorially incomplete and that, as soon as it is possible and other parts of Germany are willing to join, it is obliged to do what is necessary by virtue of this constitutional provision; that it will only ‘completely’ be what it wants to be when the other parts of Germany have become part of it. This ‘legal openness’ to the desired accession lies specifically in the fact that it, the Federal Republic, is the sole legal master of the decision on the admission of the other parts once they have decided to join. This provision thus prohibits the Federal Government from entering into a contractual dependency pursuant to which it can no longer legally bring about incorporation on its own, but only with the consent of the other party to the Treaty. This is different from the political, de facto dependency of every Federal Government in which it presently only has the opportunity to admit another part of Germany if those parts of Germany that are currently otherwise organised as states create the conditions for ‘admission’ under their constitutional law.

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Art. 23 of the Basic Law has not been superseded by political developments, nor has it become legally obsolete for any other reason. It continues to apply.

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However, the ‘other parts of Germany’ have since found their statehood in the German Democratic Republic. Given that they are organised in this way, they can only express their will to unite with the Federal Republic (their ‘accession’) in the form permitted by their constitution. The prerequisite for bringing about accession is therefore a constitutional process under the law of the German Democratic Republic, which is not open to legal influence by the Federal Republic. However, this does not affect the constitutional obligation contained in Art. 23 of the Basic Law to keep accession open to the other parts of Germany. The Treaty has not changed that fact. Put differently, the dependence on the legal will of the German Democratic Republic in the realisation of the admission of the other parts of Germany, which is accepted in the Treaty, is nothing more than a confirmation of the existing legal position after the other parts of Germany have organised themselves into a state called the German Democratic Republic. However, this also means that none of the Treaty provisions can be interpreted to mean that the readiness of (and the demand on) the Federal Government to fulfil its duty under Art. 23 of the Basic Law could constitute conduct that contravenes the Treaty. The inclusion of the other parts of Germany in a free German state, which must remain legally possible even after the Treaty comes into force, is the legal interpretation required by the Basic Law that must be used as a counter argument against the political understanding of the German Democratic Republic that unification may only take place in a communist German state of the future.

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5. As far as the compatibility of the Treaty with the constitutional provisions on citizenship in Art. 16 and 116(1) of the Basic Law is concerned, the following applies: the Federal Republic of Germany has declared on the record that ‘the Treaty does not address any questions of citizenship.’ However, the fact that the Treaty does not address questions of citizenship does not eliminate the question of whether the Treaty might indeed have effects on citizenship within the meaning of Art. 16 and Art. 116(1) of the Basic Law and which of these effects might contravene the aforementioned constitutional provisions.

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Art. 16 of the Basic Law assumes that ‘German citizenship’, which is also referred to in Art. 116(1) of the Basic Law, also includes citizenship of the Federal Republic of Germany. German citizens within the meaning of the Basic Law therefore include, but are not limited to citizens of the Federal Republic of Germany. For the Federal Republic of Germany, a German does not lose this German citizenship because another state denies it. The Federal Republic of Germany may not legally recognise such a denial; it has no effect.

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The status of a German within the meaning of the Basic Law, who possesses German citizenship stipulated in this Basic Law, must not be derogated or curtailed by any measure attributable to the Federal Republic of Germany. This follows from the home state’s obligation of protection associated with the status of citizenship. In particular, this means that whenever a German comes within the scope of protection of the state order of the Federal Republic of Germany, they are entitled to seek justice before its courts in accordance with the law of the Federal Republic of Germany, unless they waive this right. For this reason, the Federal Constitutional Court has also allowed the ordre public doctrine to prevail against judgments by courts of the German Democratic Republic, which is not a foreign country (BVerfGE 11, 150 [160 f.]). Other consequences need not be addressed at this stage. At any rate, if the Treaty were construed to mean that the citizens of the German Democratic Republic could no longer be treated as Germans within the meaning of Art. 16 and Art. 116(1) of the Basic Law in the area in which the Basic Law applies, this would clearly contravene the Basic Law. In order to conform with the Basic Law, the Treaty must therefore be interpreted to mean that in this respect the German Democratic Republic did not become a foreign country vis-à-vis the Federal Republic of Germany after the Treaty came into force. The Treaty must also be interpreted to mean 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 comes within the scope of protection of the Federal Republic and its Constitution as a German in accordance with Art. 116(1) and 16 of the Basic Law, in the same way as every other citizen of the Federal Republic. Citizens of the German Democratic Republic therefore enjoy the full protection of the courts of the Federal Republic of Germany and all guarantees of the fundamental rights of the Basic Law, including the fundamental right under Art. 14 of the Basic Law, insofar as they come within the area of application of the Basic Law. Any curtailment of the constitutional protection granted by the Basic Law through the Treaty or an agreement made to implement the Treaty would contravene the Basic Law.

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6. The same applies to the interpretation of the note ‘due to the different legal positions on property-related issues, these could not be covered by the Treaty’.

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7. It follows from the special nature of the Treaty described above that the Treaty is also not incompatible with the duty incumbent on the Federal Government under the Basic Law to provide protection and care for all Germans within the meaning of Art. 116(1) of the Basic Law. The Federal Government remains empowered to raise its voice within the area of application of the Basic Law through all its diplomatic missions and in all international bodies of which it is a member, to exert its influence and to stand up for the interests of the German nation, to protect Germans within the meaning of Art. 116(1) of the Basic Law and to also provide assistance to any individual German who turns to an office of the Federal Republic of Germany with a request for effective support in the defence of their rights, especially their fundamental rights. In this respect, the Federal Republic of Germany will continue to make no legal distinction between citizens of the Federal Republic of Germany and ‘the other Germans’. The singular aspect of this Treaty lies precisely in the fact that, as a ‘Basic Treaty’, it itself forms an additional new legal basis alongside of those that have already established the special legal relations between the Federal Republic of Germany and the German Democratic Republic – the legal situation of the not defunct, but not organised Germany as a whole, and the Four Powers’ responsibility for this Germany as a whole – which binds the two states in Germany more closely to one other than normal international treaties between two states.

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8. The Treaty does not change the legal position of Berlin, which has always been jointly defended by the Bundestag, the Bundesrat and the Federal Government, the German Länder and the Federal Constitutional Court with reference to the Basic Law. The Basic Law continues to require all constitutional organs at the federal and Land level to assert this legal position without restriction and to stand up for it in the future. It is only in this context that the declarations of both sides in relation to Berlin (West) can be interpreted and understood.

83-85

[…]

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9. Everything that has been said thus far on the interpretation of the Treaty applies mutatis mutandis to the conclusion of the subsequent treaties and agreements with the German Democratic Republic that is provided for in the additional protocol to Art. 7 or otherwise conceivable in the implementation of the Treaty. This means, for example:

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a) The Postal and Telecommunications Agreement (Post- und Fernmeldeabkommen) provided for in the additional protocol to Art. 7 no. 5 may not contain a curtailment or relaxation of the guarantee of the privacy of correspondence, posts and telecommunications (Art. 10 of the Basic Law) for Germans in the Federal Republic of Germany or for Germans in the German Democratic Republic, or any restriction of the freedom of expression and dissemination of opinions and information that is not provided for in Art. 5 of the Basic Law. Further, the trade between the Federal Republic of Germany and the German Democratic Republic referred to in the additional protocol to Art. 7 no. 1 based on existing agreements may not become foreign trade in the course of future developments; i.e. no customs frontier may be agreed in this area.

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b) With regard to television and radio, which are independent of the state in their programming, it must be made clear that there is no change in this status under the Treaty, and that, in particular,  the Treaty does not provide a legal basis for preventing programmes that are undesirable to the German Democratic Republic by means of corresponding legal or administrative measures. [...] In other words, the fundamental right under Art. 5 of the Basic Law cannot be restricted by invoking the Treaty, even if the other side asserts that certain programmes contradict the content and spirit of the Treaty […].

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c) The same applies to the fundamental right of freedom of association. […]

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d) Nor should the Treaty be read as releasing the Federal Government and all other organs of the Federation and the Länder from their constitutional duty to keep the public aware of not only the existing similarities, but also of the ideological, political and social differences between the way of life and legal order of the Federal Republic of Germany and the way of life and legal order of the German Democratic Republic. […]

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e) Finally, it must be clear that the current practice at the frontier between the Federal Republic of Germany and the German Democratic Republic, namely, the wall, the barbed wire, the no-man’s land known as the ‘death strip’ and the standing order to shoot, is absolutely incompatible with the Treaty. In that respect, the Treaty provides an additional legal basis for the Federal Government to do everything in its power to fulfil its constitutional duty to change and bring about the abolition of these inhumane conditions.

VI.

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Finally, the following remarks are necessary to clarify the significance of these reasons for the judgment:

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1. The above reasons treat the Treaty as a law enacted by the federal legislator, thus leaving aside the fact that there are also specific limits to the interpretation of the Treaty. They are taken into account by this consideration: all statements on the constitutional interpretation of the Treaty can be traced back to the one fundamental dissent referred to by the Treaty itself in the Preamble that the parties to the Treaties agree that they disagree on the ‘national question’ ­ quite literally,  ‘without prejudice to the differing views of the Federal Republic of Germany and the German Democratic Republic on fundamental issues, including the national question’. In this case, it is therefore in line with the special rules on the interpretation of treaties if the judgment draws on all of the consequences from this dissent for the interpretation of the Treaty that the Federal Republic of Germany must claim for itself under the Basic Law as a party to the Treaty.

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2. It follows from the foregoing that the Treaty, which is a treaty that is intended to be implemented, is of key legal significance, not only due to its existence and content, but above all as a framework for future related treaties. All statements in the reasons for the judgment, including those that do not relate exclusively to the content of the Treaty itself, are necessary and are therefore part of the reasons supporting the decision within the meaning of the case-law of the Federal Constitutional Court.

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3. Before the Treaty came into force (20 June 1973), the German Democratic Republic had full knowledge of the proceedings pending before the Federal Constitutional Court, of the jurisdiction of the Federal Constitutional Court and the binding nature its decisions on  the Federal Government and all constitutional organs, courts and authorities of the Federation and the Länder. It was also familiar with the legal arguments of the Federal Government in the legislative process, which in substance do not contradict the legal opinion that has become binding as a result of this judgment, and the full text of the Treaty Act published in the Federal Law Gazette, including the letter on German unity announced when the Treaty was initialled, and had been repeatedly reminded by the Federal Government – without contradiction from the other side – that it could only conclude the Treaty if it was compatible with the Basic Law. These circumstances are also suitable for giving the Treaty the interpretation required by the Basic Law in the event of a dispute under international law, in particular vis-à-vis the other party to the Treaty. This is in line with a principle of general customary international law that is important in state practice on whether, exceptionally, one party to a Treaty can invoke the fact that the other could and should have recognised that the Treaty is contrary to domestic constitutional law in a particular interpretation.

VII.

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This decision was taken unanimously.