Concept and legal status of the German Reich
Das German Reich is a historically and legally particularly complex term in German constitutional law. It appears in various eras, constitutions, and state orders, and has gained special legal relevance particularly after the end of the Second World War. The legal classification of the German Reich concerns questions of state identity, state succession, and the continued existence of state subjectivity.
Definition and historical development
The German Reich was founded as a nation state on January 18, 1871, with the proclamation in the Hall of Mirrors at Versailles. It initially included the period of the Empire (1871-1918), then the Weimar Republic (1919-1933), and finally the period of National Socialism (1933-1945). Developments after 1945 led to a special legal status shaped by the division of Germany and the founding of the Federal Republic of Germany as well as the German Democratic Republic.
Historical phases of the German Reich
- Empire (1871-1918): Constitutional monarchy; first constitution on April 16, 1871.
- Weimar Republic (1919-1933): Parliamentary democracy; Weimar Constitution came into force in 1919.
- National Socialist period (1933-1945): Authoritarian dictatorship; abolition of separation of powers through the Enabling Act of 1933.
- After 1945: Occupation period under Allied control; division into occupation zones.
The continued existence of the German Reich after 1945
From a legal perspective, the existence and continuation of the German Reich after the end of the Second World War is a central aspect of the discussion concerning the German state concept.
Decisions and legal views of the Allies
With the Berlin Declaration of June 5, 1945, the Allies assumed “supreme governmental authority” in Germany. However, the state structures of the German Reich were not formally declared ended. Rather, the Allies emphasized that the assumption of state power was not equivalent to annexation.
Judicature of the Federal Constitutional Court
Perhaps the most significant statement on the legal situation is contained in the judgment of the Federal Constitutional Court of July 31, 1973, on the Basic Treaty between the Federal Republic of Germany and the GDR (BVerfGE 36, 1). It states:
The German Reich continues to exist, but is not capable of acting as an overall state due to lack of organization and Germany’s division. The Federal Republic of Germany is not its legal successor but is identical with the German Reich as a state, limited to the scope of the Basic Law.
Thus, the Federal Constitutional Court holds the view of a continuing (latent) international legal subjectivity of the German Reich, which does not necessarily require a territorial, institutional, or personal continuation.
International legal classification
The concept of sovereignty
In international law, a distinction is made between the subject of international legal capacity and the effective exercise of state authority. The German Reich continued to be a subject of international law as a state, even when it no longer possessed its own functioning state apparatus. Since 1949, the Federal Republic of Germany has claimed the “identity-preserving partial legal capacity” of the German Reich within its borders.
Border issues and territory
The international borders of the German Reich as of 1937 were used as a reference within the meaning of Article 116 paragraph 1 of the Basic Law, particularly with regard to German citizenship. The issue of sovereignty and territorial status was finally settled in later treaties, especially in the Two Plus Four Treaty of 1990.
German Reich and the Federal Republic of Germany
Relationship between legal succession and identity
The question of whether the Federal Republic is the legal successor or identical to the German Reich is a central aspect of constitutional discourse. According to consistent jurisprudence and prevailing opinion:
- The Federal Republic of Germany is not the legal successor, but is identical (legal identity) with the German Reich, although limited to its respective territorial scope and its organization.
- The former organs of the German Reich were no longer capable of acting after 1945 due to the lack of legitimate representatives.
Citizenship
German citizenship (also called “Reich and citizenship”) was governed by various citizenship laws. After 1945, the Federal Republic adopted regulations regarding citizenship according to Article 116 GG, which refers to the Reich Citizenship Law.
Dissolution of the German Reich and the role of international treaties
The Two Plus Four Treaty
With the signing of the “Treaty on the Final Settlement with Respect to Germany” (Two Plus Four Treaty) on September 12, 1990, Germany definitively declared the final territorial status and confirmed the borders as established after the Second World War. Thus, the status of the German Reich as a state legal entity was considered definitively ended and state unity in the Federal Republic restored.
International legal confirmation
With the accession of the GDR to the Federal Republic on October 3, 1990, based on the Unification Treaty, the state unity of Germany within the borders of 1990 was established. The Two Plus Four Treaty created the legal basis under international law for full sovereignty and the termination of Allied reserved rights.
Legal effect and current significance
Current legal situation
According to legal assessment, the German Reich continues to exist, but has no state organs, no territory outside the Federal Republic, and no independent state authority. The Federal Republic of Germany has assumed the identity and legal continuity of the German Reich as a state entity under international law.
Significance in legal application
The term “German Reich” still plays a role in certain statutory interpretations (particularly regarding citizenship) as well as in historical examination and constitutional law literature. However, in present legal transactions, the term is essentially used only in historical and constitutional contexts.
Summary
The German Reich is a complex and immensely significant concept in German legal history. Its legal continuation as a subject of international law despite a lack of actual state organization, and its transfer into the structure and legal identity of the Federal Republic of Germany, represent a special case of state continuity in international law. The currently relevant rules of international and constitutional law were conclusively clarified in the course of German reunification and with the Two Plus Four Treaty. The German Reich now exists only as a historical-legal entity, not as an independently capable state. The Federal Republic of Germany is its continuing state, assuming all rights and obligations under international law.
Frequently asked questions
Does the German Reich still exist under current German law?
According to the predominant opinion in German legal scholarship, the German Reich continues to exist, but solely as a subject of international law without its own state authority or organs. The Federal Constitutional Court has established in several rulings, particularly in the so-called ‘Germany decision’ of 1973 (BVerfGE 36, 1), that the German Reich has not perished, but has been legally incapable of acting since 1945. The Federal Constitutional Court emphasizes that the Federal Republic of Germany is ‘not a legal successor, but identical with the German Reich as a state’ insofar as this concerns those territories within which it exercises sovereignty. This means that the Federal Republic, as the modern state, stands in the legal continuity of the German Reich, so that international treaties as well as rights and obligations have been assumed, as far as they can be applied to today’s German territory. The former territory of the German Reich, on the other hand, was definitively determined by international treaties, particularly the Two Plus Four Treaty of 1990.
What role does the Basic Law play in relation to the German Reich?
The Basic Law, established in 1949 as a provisional constitution for the Federal Republic of Germany, stands in the context of the continued existence of the German Reich as the prevailing and sole constitutional order on current German territory. The Basic Law was expressly designed by the Parliamentary Council as a transitional solution pending the possibility of an all-German constitution. However, since the Unification Treaty of 1990, the Basic Law now serves as the constitutional order for the entire German people, and therefore de facto and de jure as the constitution for united Germany. This marks a break from the former Reich constitutions and serves as the exclusive legal basis for state action in Germany.
Does the German Reich still have claims to the former eastern territories?
With the Two Plus Four Treaty of 1990 and the subsequent recognition of the Oder-Neisse line as Germany’s final eastern border, all possible territorial claims of either the German Reich or the Federal Republic of Germany to the so-called ‘German eastern territories’ have been extinguished under international law. The Two Plus Four Treaty explicitly states that united Germany makes no territorial claims to areas outside its borders (Art. 1(2)), so there is no longer a legal basis in favor of the German Reich. The international community, especially neighboring states Poland and Russia, view these territorial issues as finally resolved.
Can private individuals in legal transactions rely on the German Reich?
In German law, private individuals have no possibility of relying on the German Reich in legal transactions. Authorities and courts recognize only the Federal Republic of Germany as a legally capable and sovereign state. Attempts to evade legal obligations or laws of the Federal Republic by referring to the German Reich are, according to current jurisprudence, unfounded and may have criminal consequences, especially in cases of forgery, resistance against law enforcement officers, or incitement of the people if associated with anti-constitutional ideology.
What legal significance do Reich identity cards, Reich governments, or pseudo-authorities claiming the German Reich have?
The use of so-called ‘Reich identity cards’ or the invoking of self-styled ‘Reich governments’ and similar pseudo-authorities is not legally recognized and may constitute a criminal offense. According to § 132a StGB (‘Abuse of titles, professional designations and medals’) and other relevant regulations, both the issuance and use of such documents is prohibited. Courts and authorities generally regard such organizations as denialist and therefore extremist, which may result in measures under the law on associations and further criminal or administrative penalties.
Are there still valid laws from the time of the German Reich?
Some laws enacted during the time of the German Reich still apply, in part, in Germany today, as long as they have not been explicitly repealed or amended. Examples include the Civil Code (BGB), the Criminal Code (StGB), or the Code of Civil Procedure (ZPO), which—albeit frequently modernized—continue to serve as central codes in the German legal system. Pursuant to Article 123(1) of the Basic Law, laws from the former territory of the Reich remain in force unless they contradict the Basic Law or have been replaced by new law.
Can the German Reich still conclude international treaties today?
As the German Reich has not possessed functioning organs since 1945, it cannot conclude treaties or act effectively under international law. The sole subject of international law today is the Federal Republic of Germany, which is regarded as identical with the German Reich insofar as it concerns today’s territory. All international obligations, rights, and duties are exercised under international law by the Federal Republic of Germany and not by a distinct German Reich.
