Maryland Law Review Volume 50 | Issue 3 Article 3 The onsC titutional Law of German Unification Peter E. Quint Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the International Law Commons Recommended Citation Peter E. Quint, The Constitutional Law of German Unification , 50 Md. L. Rev. 475 (1991) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol50/iss3/3 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. m@ :::z::::: :::::: ::: . : ' " ' ... 0... .. = . ... ..... .. .... ..... -'.'. :. ~......>.. -.., ....... .. ...... _ .- :i..:""- ............ .:!........ :. !!:"° S. ... .. .. MARYLAND LAW REVIEW VOLUME 50 1991 NUMBER 3 © Copyright Maryland Law Review, Inc. 1991 Articles THE CONSTITUTIONAL LAW OF GERMAN UNIFICATION PETER E. QUINT* TABLE OF CONTENTS MAP: GERMANY, 1945 INTRODUCTION .............................................. 476 I. UNION AND DISUNION IN GERMAN HISTORY ............. 478 II. THE LEGAL STATUS OF GERMANY, 1945-1989 .......... 480 III. POLITICAL REVOLUTION IN THE GDR, 1989-1990 ....... 483 IV. CONSTITUTIONAL REFORM IN THE GDR, 1989-1990 .... 488 A. Background: The 1968/74 Constitution of the GDR ... 488 B. Proposalsfor a New GDR Constitution-The Round Table Draft ....................................... 493 C. Amending the GDR Constitution-The Old Volkskammer and the Modrow Government ........................ 496 Copyright © 1991 by Peter E. Quint. * Professor of Law, University of Maryland. A.B., Harvard University, 1961; LL.B., 1964; Diploma in Law, Oxford University, 1965. For valuable comments on earlier drafts of this article I am grateful to Winfried Brugger, Thomas Giegerich, Eckart Klein, Alexander Reuter, William Reynolds, Edward Tomlinson, and Giinther Wilms. I learned much from their comments, but I remain fully responsible for all positions taken here and for any errors of law or of fact. For valuable research assistance, I am grateful to Cherylle Corpuz, Joan Gavigan, Nancy Hoffmann, Kristin Klein, and Gerk Oberman. Much of this article was written while I was a guest at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. I would like to express my gratitude to the directors, fellows, and staff of the Institute for their extraordinary kindness and hospitality on this as well as many other occasions. The map on the facing page is from A HISTORY OF MODERN GERMANY by Hajo Hol- born. Copyright © 1959 by Hajo Holborn. Reprinted by permission of Alfred A. Knopf, Inc. 475 476 MARYLAND LAW REVIEW [VOL. 50:475 D. Amending the GDR Constitution- The New Volkskammer and the de Maizire Government ..................... 501 V. METHODS OF UNIFICATION UNDER THE BASIC LAW ...... 506 A. Confederation ...................................... 506 B. Article 146 of the Basic Law . : ...................... 507 C. Article 23 of the Basic Law ......................... 510 D. A New Constitution Under Article 146 After Accession Under Article 23 ................................... 513 VI. THE STATE TREATY ................................... 516 VII. RECONSTITUTION OF THE STATES IN THE GDR .......... 524 VIII. THE UNIFICATION TREATY ............................. 530 A. Purpose and General Structure of the Treaty ........... 530 B. Problems Relating to Expropriated Property ............ 541 C. A bortion .......................................... 562 D. The Civil Service in Eastern Germany ................ 570 IX. CONSTITUTIONAL PROBLEMS OF THE FIRST ALL-GERMAN ELECTION ............................................ 581 X. THE LEGAL STATUS OF DIVIDED GERMANY AND THE ROLE OF THE WORLD WAR II ALLIES IN THE PROCESS OF UNIFICATION ...................................... 588 A. Reserved Rights of the Allies ......................... 589 B. The Oder-Neile Line ............................... 599 C. NA TO ............................................ 605 D. The Two Plus Four Treaty and the Legal Status of Germany .......................................... 611 XI. UNIFICATION AND THE EUROPEAN ECONOMIC COMMUNITY ........................................... 620 CONCLUSION ................................................ 624 APPENDIX A: CALENDAR OF EVENTS-THE BACKGROUND OF GERMAN UNIFICATION ......................... 629 APPENDIX B: CALENDAR OF EVENTS- 1989-1990 ............ 630 APPENDIX C: GLOSSARY OF FREQUENTLY USED TERMS ....... 631 INTRODUCTION In the mid-summer of 1989 the German Democratic Republic- known as the GDR or East Germany-was an autocratic state led by an entrenched Communist Party, a loyal member of the Warsaw Pact and, in many ways, a haughty counterpart of the Federal Re- public of Germany (West Germany), which it confronted with a mix- ture of hostility and grudging accommodation across the divide created by the Cold War. Over the following year and a half, a dra- 1991] CONSTITUTIONAL LAW OF GERMAN UNIFICATION 477 matic process of change transformed the political system of East Germany and culminated in the GDR's "accession" to the Federal Republic itself. At the same time, the division of Europe, which the division of Germany came to symbolize, had largely ceased to exist. Viewed as a social and economic process, German unification was by no means completed when the GDR acceded to the Federal Republic on October 3, 1990. The two economic systems remain distinctly-even startlingly-different, and the sharp psychic divi- sions of four decades, which some Germans refer to as the "Wall in the head," will probably continue to divide the two regions for years to come. The unification of October 3, therefore, represented primarily an achievement in the realm of politics and law-the culmination of a series of agreements and legislative provisions developed within a highly articulated constitutional framework that was drafted more than forty years ago with such an occurrence in mind. In the rapid events of 1989-90, the legal and constitutional development seemed to be one aspect of the process of unification that-unlike more un- ruly economic and social phenomena-was subject to a measure of deliberation and rational control. The constitutional structure that emerged reflected both anxi- ety and optimism; its drafters sought to diminish baneful legacies of the past while opening opportunities for future social, political, and economic development. Like many great constituent acts, this con- stitutional structure will provide guidelines for the development of more complex and difficult social processes, and one measure of its success will be whether it can channel and guide those processes or whether, in the end, it will be overwhelmed by them. This Article seeks to explain the major events of German unifi- cation from the constitutional perspective. In this overview, consti- tutional law will be understood in a broad sense-7including not only the interpretation of constitutional texts by co~irts, scholars, and governments, but also extending to important international ar- rangements that help define the nature of a state, as well as certain central statutes, regulations, and practices that give concrete mean- ing to the underlying principles of a constitutional system. Although this review will outline the developments of 1989-90, it will also illustrate how the issues of unification once again raised critical disputes between left and right that have been present throughout the history of the Federal Republic and even, in several cases, have their roots in earlier German history. In many instances these political issues were not resolved upon unification. Indeed 478 MARYLAND LAW REVIEW [VOL. 50:475 they remain-along with numerous economic and social problems- as part of the continuing program of political debate for coming years. Longstanding political disputes in Germany have affected the course of unification, but the fact of unification itself-and the terms upon which it was accomplished-will have its own substantial im- pact on the further development of these important political issues. I. UNION AND DISUNION IN GERMAN HISTORY Unification is one of the great themes of modern German his- tory. Unlike England and France-which had formed unified na- tion-states in the Middle Ages-Germany came into the nineteenth century a variegated collection of kingdoms, duchies, city-states, and other principalities, loosely held together in the political league of the Holy Roman Empire. The Empire was dissolved in 1806 at Napoleon's order and, following the Congress of Vienna and Napo- leon's final defeat in 1815, the "Germanic Confederation" arose in its place. Like the Holy Roman Empire, however, this was more in the nature of a treaty community (Staatenbund) than any sort of real political union. But it and the early nineteenth century Customs Union were steps in that direction. In the early nineteenth century-in sharp contrast with twenti- eth century movements-political progressivism and nationalism were often allied in Germany. A first attempt at an all-German con- stitution was the Paul's Church Constitution of 1849, drafted under the impetus of the 1848 Revolution. Although this document never went into effect, it reflected the view that basic rights and a measure of popular control could be more readily expected from a unified Germany than from the absolutist monarchs and princes who con- trolled most