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A European Peace Order and the German Question: Legal and Political Aspects Michigan Journal of International Law Volume 11 Issue 3 1990 A European Peace Order and the German Question: Legal and Political Aspects Jost Delbrueck Institute of International Law at the University of Kiel Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the European Law Commons, Legal History Commons, and the Military, War, and Peace Commons Recommended Citation Jost Delbrueck, A European Peace Order and the German Question: Legal and Political Aspects, 11 MICH. J. INT'L L. 897 (1990). Available at: https://repository.law.umich.edu/mjil/vol11/iss3/8 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A EUROPEAN PEACE ORDER AND THE GERMAN QUESTION: LEGAL AND POLITICAL ASPECTS Jost Delbrueck* I. INTRODUCTION: THE PROBLEM OF A EUROPEAN PEACE ORDER IN HISTORICAL PERSPECTIVE The post-World War II political setting in Europe was marked by the stable posture of two tightly structured opposing bloc-systems. In military terms, the Warsaw Pact and the North Atlantic Treaty Or- ganization, and in the economic sphere, the Eastern European Council for Mutual Economic Cooperation and the Western European Eco- nomic Communities, represented the stark distinctions of the Cold War. This stable posture has definitely come to an end. Due to the rapid decline of the Communist regimes in Eastern Europe, there is a growing concern in various political quarters about an emerging polit- ical instability in Eastern and Central Europe brought about by the Eastern European States' reassertion of their political independence. The primary source of concern over a possible instability in Central Europe - and elsewhere - is, however, the issue of an imminent (re-) unification of Germany. This concern has a special sense of urgency about it because the re-emergence of a unified Germany, now taken for granted, might come about so rapidly as to not allow for a careful restructuring of the European state system. Such restructuring is nec- essary in order to avoid the risks of general political instability, and the risk of a renewed threat to the security of the European nations in particular, on the part of a unified Germany. As the emphasis on a renewed German threat already indicates, the problem of a European Peace Order which safeguards the security of all European states and accommodates German interests in gaining or simultaneously re-es- tablishing a unified national state, is not a new one. In order to get a clear and sober assessment of the needs which a lasting European Peace Order must meet in the light of historical experience, including a solution to the notorious "German Question," a short review of the * Dr. iur.habil., LL.M (Indiana), Professor of Constitutional and International Law, Direc- tor of the Institute of International Law at the University of Kiel, Federal Republic of Germany, currently Visiting Professor at Indiana University School of Law; the following article is the slightly revised and edited version of a paper presented by the author as a fellow of the Institute for Advanced Study at Indiana University on Febraury 14, 1990. Michigan Journal of InternationalLaw [Vol. 11:897 problem of a European Peace Order may be helpful as a prelude to the following discussion of the possible course of events, and the adequate strategies to influence that course. 1. The European State System as a Peace Order after the Breakdown of the Holy Roman Empire In 1815, the Congress of Vienna was faced with the restructuring of the European State System. The Holy Roman Empire had dis- integrated following Napoleon's failed attempts to build a European Order under French hegemony at the turn of the 19th Century. The result was a balance of power system which came to be known as the Concert of Europe which was, in a sense, the non-institutionalized forerunner of the League of Nations system.' The Concert of Europe system basically rested on the guarantees and responsibilities of the then existing Great Powers (France, Britain, Russia, Austria and Prussia), and successfully secured a stable order in Central Europe for over half a century. It did not, however, provide for a unified Ger- many as part of the system, despite strong national ambitions on the part of the rising German bourgeois class. The German Confedera- tion (der Deutsche Bund) created by the Vienna Congress fell far short of creating a united German nation-state. Revolutionary attempts by the liberal bourgeoisie and more radical groups in 1848-49 to set up a united Germany under a constitutional monarchy which, once estab- lished, would have had to be a part of the Vienna Congress system, did not succeed either. Although an impressive Constitution was drawn up by an elected National Assembly (the so-called FrankfurterPauls- kirchen Verfassung) the system could never be enforced after the polit- ical and military breakdown of the revolution. The eventual unification of Germany, excluding Austria, by Bismarck in 1870-71 came too late to accommodate the diverse interests of the European states within the framework of the Concert of Europe, and the newly created "German Reich" - formed after Bismarck stepped down - proved to be ill adapted to the ailing Concert system. Later developments are well known: Europe plunged into the abyss of the First World War - with Germany playing a major role - which proved so fatal to the European Order and the political sta- tus of the European powers. 1. See Delbrueck, I, in G. DAHM, J. DELBRUECK, R. WOLFRUM, I VOELKERRECHT 13 (2d ed. 1989) (citing I. CLAUDE, SWORDS INTO PLOWSHARES: THE PROBLEM AND PROGRESS OF INTERNATIONAL ORGANIZATION (1956)). Spring 1990] European Peace Order And The German Question 899 2. The Inter- War Period The question of a European Peace Order was again the subject of an international forum comparable to the Vienna Congress during the Versailles Peace Conference of 1919. This conference, however, never intended to create a new order for Europe which would include Ger- many as an integral part of a respective political system. Rather, the Versailles Conference took two different directions. First, inspired by the ideas of the peace movement emerging at the end of the 19th Cen- tury and leading to, among others, the Hague Peace Conferences of 1899 and 1907, the diplomats at Versailles established the League of Nations. The League was designed as a universal institution for the maintenance of international peace. This step represented the first at- tempt by the international community of states to internationalize re- sponsibility for the maintenance of peace among states under the auspices of an international organization. 2 Second, the Versailles Con- ference provided for a separate legal regime over Gemany - the ac- tual peace treaty arrangements. The defects of these two different decisions (i.e., setting up the League system and, separately, the peace settlement for Germany), formally forged together in one treaty instrument,3 were manifold and proved to be disastrous in the end. Although, in theory, the League at that time probably best resembled the Confederation of the Republi- can States envisaged by Immanuel Kant in his tract Perpetual Peace,4 in practice, only a small number of its members proved to be "Repub- lican States" in the Kantian sense. Furthermore, the League was neither universal in membership nor in political perception. In fact, it was, for the most part, Eurocentric. Yet, the League excluded from its ranks and agenda the geographical center of Europe - Germany - which was not to become a member of the League during the first years of its existence. 5 A temporary trend toward redressing some of 2. For a more detailed analysis of these developments see id. at 13; see also Delbrueck, Peace Through Emerging InternationalLaw, in THE QUEST FOR PEACE: TRANSCENDING COLLECTIVE VIOLENCE AND WAR AMONG SOCIETIES, CULTURES AND STATES 127 (R. Vaeyrynen ed. 1987). 3. See Treaty of Peace with Germany (Versailles Peace Treaty), 66th Cong., 1st Sess., SEN. DOC. No. 85 (1919). For the official German source, see 1919 REICHSGESETZBLAT-r (OFFICIAL GAZETTE OF THE GERMAN REICH) 688 (texts in the authentic English and French languages as well as in the official German translation). 4. See I. KANT, PERPETUAL PEACE 59 (L.W. Beck ed. 1959). 5. The lack of universality was due, first, to the fact that the United States - though one of the major initiators of the League - did not become a member because the U.S. Senate refused to agree to the ratification of the Versailles Peace Treaty, and secondly, the newly established Soviet Union - the first Socialist state to come about - was not yet recognized internationally. It was, therefore, not admitted to League membership. Thus, three large powers were not part of the League system at the outset. Michigan Journal of International Law [Vol. 11:897 these defects, evidenced by admitting Germany (1926) and the Soviet Union (1934), as well as tying the United States to the League System through the Pact for the General Renunciation of War (Briand/Kel- logg Pact) of 1928,6 did not persist. In the mid-1930s, the League rapidly declined in political relevance and did not even function as an effective control mechanism over an ever more menacing former en- emy state - Hitler's National-Socialist Germany. 7 The institutional approach taken by the Versailles Conference to solve the problem of how to safeguard international peace under the responsibility of the international community of states was a sound one.
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