Law, College of

 

Date of this Version

3-1991

Comments

Published in MICHIGAN JOURNAL OF INTERNATIONAL LAW 12 (Spring 1991), pp. 510-557.

Abstract

The process of German unification, at least as far as its international legal aspects are concerned, is almost complete now. After the first Staatsvertrag, creating as of July 1, 1990, a monetary union between the Federal Republic of Germany ("FRG") and the German Democratic Republic ("GDR"), the second Staatsvertrag uniting the two States as of October 3 legally sealed the inter-German aspects of the unification.

At the same time, the September 12 Treaty between the four former occupation powers—the United States, the Soviet Union, Great Britain and France—and the two former occupied German States took care of the remaining international aspects, along with the Treaty of Friendship between the FRG and the Soviet Union and the German- Polish Treaty on boundaries and friendly relations.

Then on December 2, the first all-German free elections were held in realization of a much disputed article of the FRG's Constitution. The results confirmed in large measure the consent of the German people to the fact and modalities of unification. Now all that remains is the possibility of a referendum, to be held in the next few years, which could result in a new Constitution. Such a Constitution might lead to the replacement of the FRG, for all practical purposes, by a new state "Germany"—or "United Germany" or "United Federation of Germany" or whatever name would be given to the newly united states.

Does this mean, however, that the unification of Germany has taken place regardless of international law? The process, of course, had many important aspects unrelated to international law; however, the questions to be examined here are: What exactly were the international legal parameters of the unification process, and to what extent have they been acknowledged and incorporated into the legal instruments effecting the unification?

It seems that in situations of an extremely political character, such as the one concerning the (re)unification of Germany, public international law cannot provide one final, simple solution. International law is essentially a jus dispositivum: States can only be bound if they so choose or have so chosen in the past. If, however, only explicit choices were considered to have binding effect in international law, too many gaps would exist to make it a useful system; acquiescence thus plays a prominent role. Furthermore, building upon acquiescence, cases of estoppel or preclusion may sometimes arise.