The Legal Status of Germany According to the Declaration of Berlin

Abstract

According to the Declaration made at Berlin on June 5, 1945, by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom, and the Provisional Government of the French Republic, these Governments have assumed “ supreme authority with respect to Germany including all the powers possessed by the German Government, the high command, and any state, municipal, or local government or authority.” This means that the German territory, together with the population residing on it, has been placed under the sovereignty of the four powers. It means further that the legal status of Germany is not that of “ belligerent occupation” in accordance with the Articles 42 to 56 of the Regulations annexed to the Hague Convention respecting the Laws and Customs of War on Land of 1907. After Germany's unconditional surrender and especially after the abolition of the last German Government, the Government of Grand Admiral Doenitz, the status of belligerent occupation has become impossible. This status presupposes that a state of war still exists in the relationship between the occupant state and the state whose territory is under belligerent occupation. This condition implies the continued existence of the state whose territory is occupied and, consequently, the continued existence of its government recognized as the legitimate bearer of the sovereignty of the occupied state. This is the reason why it is generally assumed that belligerent occupation does not confer upon the occupant power sovereignty over the occupied territory. By belligerent occupation the legitimate government is made incapable of exercising its authority and is only substituted for the period of occupation by the authority of the occupant power. The legitimate government of the occupied state, especially the head of the state, may be expelled from the occupied territory and may have established his seat on the territory of an ally; the government, and especially the head of the occupied state, may even be made prisoners of war. But the government must continue to exist and must be recognized as such by the occupant power. The latter must be willing to conclude with this government a treaty of peace and to hand back to it the whole or a part of the occupied territory.