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Wolfgang Benz, Auftrag Demokratie. Jan Palmowski, Inventing a Socialist Nation. In this respect, the claim to damages differs from the claim under primary law of the persons involved that the prohibitions of humanitarian public international law are observed; this claim exists in the public-international-law relationship between the state occupying a territory and the population living in this territory.
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By the wording of the Land Warfare Convention and the practice of the states, the Federal Republic of Germany was not obliged to assert such claims towards the former occupying power. When these provisions were created, the creators believed that they had found in them an efficient means of enforcing the Hague law. In the practice of the law of war, however, this principle has not yet succeeded in establishing itself.
Instead, as a rule the victor demands the payment of compensation from the conquered reparations , although there was no unambiguous agreement to base this on violations of the law of war, and above all without the victor paying damages for the violations of law committed by itself. It cannot be concluded from the provisions of the Geneva Convention that the states are forbidden to waive claims under the Hague Land Warfare Convention in connection with entering into a peace treaty.
Any claims of the individuals protected by the Land Warfare Convention are burdened in advance by this authorisation of the occupying power and the sovereign to legislate and to waive, and they are also restricted by it. Nor can it be established that at a later date a rule of peremptory public international law arose that excludes ex nunc the possibility of treating the existing situation as lawful ius cogens superveniens. The institution of newly developed peremptory international law overtaking older law has been laid down in positive contract law. Under Article 53 of the Vienna Convention on the Law of Treaties, treaties that conflict with a peremptory norm of general international law are void.
Under Article 64 of the Convention, a treaty entered into earlier that to date has been unobjectionable becomes void if it is in conflict with a peremptory norm of general international law that comes into existence later. Accordingly, what is important is not so much the obligations to which the occupying power was subject in the period from to as the obligations to which the Federal Republic of Germany was subject when it entered into the Unification Treaty.
It is true that in the year , in Article Thus, under Article 26 of the ILC Articles, the general grounds of justification of a violation of public international law under Articles do not apply to a violation of a peremptory norm. The consent of the injured state does not justify the violation of a peremptory norm of public international law. The same applies to necessity Article 25 and force majeure Article Even when a state takes countermeasures that for all intents and purposes are justified against the violation of public international law of another state Article 22 , it may not violate peremptory law.
A breach is serious if it is gross or systematic in nature Article The states must cooperate in order to bring an end to any such breach Article In addition, no state may recognise as lawful a situation created by such a breach or render aid or assistance in maintaining it Article However, these provisions do not give rise to the legal consequence that the expropriations on the basis of sovereign acts by occupying powers — assuming they violated mandatory international law — are to be treated as void.
Instead, the legal consequence of voidness is laid down only to the extent that duties under treaties are directed precisely to performance that is prohibited by a peremptory norm. Apart from this, however, and all the more so if a factually established situation and differing political interests are involved, the states have merely a duty to cooperate with regard to the consequences.
Behind this duty of cooperation is the consideration that it is urgently necessary to create a situation that, while safeguarding the interests on both sides, does actually mitigate the breach of peremptory law as far as possible.
Department of History and Cultural Studies
There is no conflict here with the fact that the states, under public international law, may also have a duty not to recognise particular factual developments that have occurred in breach of fundamental principles of the international order. In this report, the International Court of Justice came to the conclusion that the rule of Namibia by the state of South Africa had become illegal by reason of the effective termination of the mandate under which South Africa had been entrusted with responsibility for former German South West Africa by the League of Nations.
In view of the occupation of the country, which was now unlawful, all states in the world had an obligation to regard the action of South Africa for or in relation to Namibia as invalid to the extent that such non-recognition was not contrary to the vital interests of the inhabitants of Namibia ICJ, loc. In this case too, however, the main emphasis was on the termination or removal of the situation. In consequence, the community of states also cooperated with South Africa when the occupation of Namibia came to an end. Only in this way did it create the de facto possibility, if not of undoing the situation created from to , yet of substantially correcting it, and at all events of softening its actual effects.
In this connection, the Federal Government was permitted to come to the conclusion that managing reunification cooperatively would be incompatible with treating the expropriations as void.
Such a duty in this case is not mandatorily directed to the regained assets being returned specifically to the former owners. Instead, it is required that the total amount of distribution is adequate and that when this is carried out, the state may continue to take account of further constitutional requirements see BVerfGE , Redeker, Wiedergutmachung auf Grund russischer Rehabilitierungsentscheidungen, Neue Juristische Wochenschrift , pp.
In this respect, the Equalisation Payments Act exercises the rights reserved by the Federal Government in number 1 sentence 4 of the Joint Declaration. For the basis of assessment, the Act refers to the relevant provisions of the Compensation Act. The Land Acquisition Ordinance was passed to supplement this. The equalisation arrangements made are compatible with the constitutional requirements of a state under the rule of law and the social welfare state and with Article 3.
Nor can higher standards be derived from the constitutional duty to respect public international law. This applies on the one hand to the absolute amount of the equalisation payments made by the Federal Republic of Germany. But it also applies to the drafting of the provisions on the acquisition of land on favourable terms. The provisions make it possible for reorganisers and new organisers of agricultural and forestry operations in the area of the former German Democratic Republic and the successors in title of the former agricultural cooperatives to acquire land on favourable terms, with priority.
Here, a distinction is made between agricultural and forestry land. In the rules on acquisition of land on favourable terms, the legislature had two purposes: This is just as much in harmony with any goals required by public international law as it is with constitutional law.
In this connection it should also be taken into account that German unification is a process in which the Federal Republic of Germany may classify the treatment of individual topics — such as dealing with the land reform — as parts of an overall conception of the balancing of interests. The consequences of the Second World War, a period of rule under occupation and a post-war dictatorship must be borne by the Germans as a community of fate and also, within particular limits, as the individual experience of injustice, without it being possible in every case to obtain adequate compensation, to say nothing of restitution in kind.
For this reason too, it would be inappropriate to balance precisely the increased assets of the Federal Government as a result of reunification against the sums distributed to the persons affected. If the existing constitutional duties of the Federal Republic of Germany with regard to public international law are fulfilled, the exclusion of restitution under Article It need not, therefore, be decided whether and to what extent the constitutional duty to respect public international law also binds the constitution-amending legislature.
There is no violation of Article But this does not mean that there has been a violation of the right to a fair hearing, which is equivalent to a fundamental right. The interpretation of the law expressed in the decisions challenged with regard to the dual nationality of the predecessor in title of the second complainant is unobjectionable from the point of view of constitutional law.
In particular, there can be no objection, with regard to Article 3 of the Basic Law, to the opinion that the prohibition on expropriation of foreign assets pronounced by the Soviet occupying power does not apply to persons who had not only foreign but also German citizenship. An expropriation on the basis of sovereign acts by occupying powers is a measure that was formally undertaken on the basis of statutes, delegated legislation and other acts of state by German agencies, but which was carried out at the suggestion or wish of the occupying power or with its consent.
This applies above all to the expropriations in connection with the land reform and the expropriations carried out following SMAD Order no. It is not significant whether the expropriations were formally based on legal acts of the occupying power or of the German authorities established by that power. What is decisive, instead, is whether the measure was not merely accepted by the Soviet occupying power, but also coincided with its declared intention see BVerfGE 84, 90 , or whether the occupying power as a non-German state authority still had the highest sovereignty at the time of the expropriation see BVerfGE 94, 12 The only acts of expropriation that are to be regarded as German orders are those which lacked the decisive elements making them attributable to the occupying power, for example because the occupying power had expressly prohibited the expropriations by reason of their character or in the individual case.
Only a distinction on this basis between Allied decisions — whether under occupation law or on the basis of sovereign acts by occupying powers — and German orders does justice to the legal reality in the Soviet occupation zone see BVerfGE 94, 12 This conclusion is also unobjectionable from the point of view of public international law.
In the law of state responsibility, it is recognised that acts of the bodies of a state give rise to the responsibility of another state if they can be attributed to the latter see Article 18 of the ILC Articles on state responsibility, loc. Accordingly there are no objections to attributing the expropriations under public international law to the Soviet Union, in view of its overall responsibility as occupying power and its formative influence on the events.
No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties as promulgated in the amended version of the Convention of 4 November for the Protection of Human rights and Fundamental Freedoms of 17 May , Federal Law Gazette II, p. The European Convention for the Protection of Human Rights, in its conception of property, does not follow a specific national property and economic system shaped by civil law, but is based on the ideas of public international law.
By the established case-law of the European Court of Human Rights, however, Article 1 of the First Protocol protects not only property positions already existing under national law existing possessions , but also acquired claims on the realisation of which the claimant was rightfully entitled to rely legitimate expectations European Court of Human Rights, no.
This definition of property excludes reliance on the continuation in existence of earlier property rights that over a long period of time could not be effectively exercised European Commission on Human Rights, nos. The resulting decision was that the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols are, ratione temporis, not applicable to expropriations that took place before the Convention came into force.
With regard to expropriations by the Soviet occupying power in Germany, in addition, it was held that the Convention bodies were not competent, ratione personae, because the Federal Republic of Germany was not responsible for the expropriations in question and therefore was not obliged to permit any resulting claims to damages to be enforced against itself. Here, it is not significant for the legal assessment that the effect of an unlawful expropriation continued in existence even after the Convention came into force.
The expropriation is seen as a non-recurring act without a permanent effect in the legal sense see European Commission on Human Rights, loc. The complainants attempted without success to obtain restitution on the basis of relevant legislation of the year The Senate replies to questions that are not raised in the case with constitutional principles that are not contained in the Basic Law. My objections do not relate to the way the Senate dealt with this question.
Before the Federal Administrative Court, the second complainant, as far as is apparent from the documents submitted, even pursued the restitution claim he asserted exclusively with reasons relating to the point of view just mentioned. It should therefore have been examined whether the challenges with which the second complainant now generally proceeds against the constitutionality of the exclusion of restitution in the proceedings before the Federal Constitutional Court were admissibly made.
Admittedly, the case-law on admissibility developed by the Senates and Chambers of the Federal Constitutional Court under the aspects of subsidiarity and substantiation needs discussion. However, deviations from it may not be tacitly made in the individual case but must, where they are necessary, be openly set out and thus also be made a basis of case-law in future cases. Apart from this, both complainants, supporting their arguments by considerations of public international law, challenge the fact that the decisions proceeded against regarded provisions of applicable nonconstitutional law as constitutional and applied them, although by these provisions the complainants are neither owners of the disputed plots of land nor entitled to restitution.
In order to decide on the present constitutional complaints, therefore, it is necessary only to determine whether the fundamental exclusion of a return of the plots of land expropriated under occupation law or on the basis of sovereign acts by occupying powers — and the treatment included in this of the disputed expropriations as effective — violates fundamental rights of the complainants. The question as to whether these expropriations are to be reversed is answered by the Basic Law itself Article Consequently, the Federal Constitutional Court can only examine, as the First Senate correctly held, whether the requirements that Article It was necessary to examine whether the exclusion of restitution laid down in Article This question has already been answered in the negative by decisions of the First Senate.
The First Senate — taking account of all fundamental rights, the violation of which the complainants also assert, and taking account of public-international-law points of view —established that Article However, in this case it must proceed from the right question — the question as to a potential violation of the core of human dignity of fundamental rights of the complainants. If the Senate had asked the original question in this way, it would have directly become obvious that public-international-law aspects, such as those adduced by the complainants, are not capable of casting doubt on the correctness of the decisions of the First Senate.
Consequently, the case gave no occasion to undertake more detailed discussion of the position under public international law. Even if there had been occasion to consider the position under public international law, the Senate would have had to confront the charge that in doing this it went far beyond what was necessary for the decision. This would have sufficed, assuming that matters of public international law had been of any relevance whatsoever.
All other arguments on the situation under public international law, on the constitutional duties of enforcement and correction to which the German state is subjected in connection with breaches of public international law by other states, and on the question whether the Federal Republic of Germany distributed any enrichments from the expropriations carried out to those affected in a manner complying with these duties are not relevant to the issue, for the disputes relate solely to the duty of restitution or to the associated question as to the effectiveness of the expropriations at issue.
In all questions above and beyond this, the Senate could even have held the opposite to what it did without this being of any relevance to the result of the decision. The novel constitutional principles which the Senate nevertheless developed on the basis of the present constitutional complaints have no foundation in the constitution.
Friedrich-Meinecke-Institut
There will be no further consideration here of the question as to how far the Basic Law, above and beyond the specific contents of Article 1. Moreover, it is misleading to introduce obligations of this kind as partial elements of a duty to respect public international law, for they decidedly aim at more than mere respect.
This statement is impossible to refute or confirm, for it has no definable legal content. The situation is different with regard to the consequences that the Senate derives from this, despite the fact that the conditions mentioned are not defined and the scope of the area of German responsibility is not clarified. It is not clear in what way the situation is qualified because this principle is to apply to the German state only in accordance with its responsibility; at all events, the Senate assumes that in the specific case of the expropriations in the course of the land reform concrete duties would arise with regard to compensation and distribution of any enrichment if — and this is left open — these expropriations were to be seen as breaches of peremptory public international law.
But for this case too, duties of compensation and distribution under public international law certainly do not exist on constitutional duties under the principle of the social welfare state see BVerfGE 84, 90 ; , , with further references.
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Public international law does not contain a general rule to the effect that states have a duty to enforce public international law against breaches on the part of other states or to mitigate and compensate the consequences of such breaches, nor does it contain principles that create such duties in the present situation. The draft articles of the International Law Commission on state responsibility quoted by the Senate do contain a provision Article The case-law on which this draft provision is based, according to the comments on the draft articles by the International Law Commission, relates to the recognition of annexations and occupations of foreign territory in breach of public international law.
Over and above the specific situation in the present case, which has a number of unusual features, public international law contains no general duty of third-party states to work towards a closer accord with the status quo ante where situations in the world with regard to property, to files of the State Security Service of the German Democratic Republic or to any other matter have come about in breach of public international law. Nor does the Senate itself claim that a duty under public international law to this effect exists; it does not present the duty as one under public international law, but as one under constitutional law.