International law, Sixth edition
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International Law MALCOLM N. SHAW
Germany 1945
With the defeat of Germany on 5 June 1945, the Allied Powers assumed ‘supreme authority’ with respect to that country, while expressly disclaim- ing any intention of annexation. 155 Germany was divided into four occu- pation zones with four-power control over Berlin. The Control Council established by the Allies acted on behalf of Germany and in such capacity entered into binding legal arrangements. The state of Germany continued, however, and the situation, as has been observed, was akin to legal rep- resentation or agency of necessity. 156 Under the 1952 Treaty between the three Western powers and the Federal Republic of Germany, full sovereign powers were granted to the latter subject to retained powers concerning the making of a peace treaty, and in 1972 the Federal Republic of Germany and the German Democratic Republic, established in 1954 by the Soviet Union in its zone, recognised each other as sovereign states. 157 However, following a series of dramatic events during 1989 in Cen- tral and Eastern Europe, deriving in essence from the withdrawal of 151 ICJ Reports, 1971, pp. 52–8. 152 17 ILM, 1978, pp. 762–9, and DUSPIL, 1978, pp. 38–54. See Security Council resolution 435 (1978). See also Africa Research Bulletin, April 1978, p. 4829 and July 1978, p. 4935. 153 See S/14459; S/14460/Rev.1; S/14461 and S/14462. 154 See 28 ILM, 1989, p. 944. 155 See Whiteman, Digest, vol. I, pp. 325–6, and R. W. Piotrowicz, ‘The Status of Germany in International Law’, 38 ICLQ, 1989, p. 609. See also Crawford, Creation of States, p. 523. 156 Brownlie, Principles, p. 107. See also Whiteman, Digest, p. 333, and I. D. Hendry and M. C. Wood, The Legal Status of Berlin, Cambridge, 1987. 157 12 AD, p. 16. Note also Kunstsammlungen zu Weimar v. Elicofon 94 ILR, p. 135. Both states became members of the UN the following year. See Crawford, Creation of States, pp. 523–6, and F. A. Mann, Studies in International Law, Oxford, 1973, pp. 634–59 and 660–706. 228 i n t e r nat i o na l l aw Soviet control, the drive for a reunified Germany in 1990 became un- stoppable. 158 A State Treaty on German Economic, Monetary and Social Union was signed by the Finance Ministers of the two German states on 18 May and this took effect on 1 July. 159 A State Treaty on Unifica- tion was signed on 31 August, providing for unification on 3 October by the accession to the Federal Republic of Germany of the L¨ander of the German Democratic Republic under article 23 of the Basic Law of the Federal Republic, with Berlin as the capital. 160 The external obstacle to unity was removed by the signing on 12 September of the Treaty on the Final Settlement with Respect to Germany, between the two German states and the four wartime allies (UK, USA, USSR and France). 161 Under this treaty, a reunified Germany agreed to accept the current Oder–Neisse border with Poland and to limit its armed forces to 370,000 persons, while pledging not to acquire atomic, chemical or biological weapons. The Agreement on the Settlement of Certain Matters Relating to Berlin between the Federal Republic and the three Western powers on 25 Septem- ber 1990 provided for the relinquishment of Allied rights with regard to Berlin. 162 Condominium In this instance two or more states equally exercise sovereignty with re- spect to a territory and its inhabitants. There are arguments as to the relationship between the states concerned, the identity of the sovereign for the purposes of the territory and the nature of the competences in- volved. 163 In the case of the New Hebrides, a series of Anglo-French agree- ments established a region of joint influence, with each power retaining sovereignty over its nationals and neither exercising separate authority 158 See e.g. J. Frowein, ‘The Reunification of Germany’, 86 AJIL, 1992, p. 152; Schrike, ‘L’Unification Allemande’, p. 47; Czaplinski, ‘Quelques Aspects’, p. 89, and R. W. Piotrowicz and S. Blay, The Unification of Germany in International and Domestic Law, Amsterdam, 1997. 159 See Keesing’s Record of World Events, p. 37466 (1990). See also 29 ILM, 1990, p. 1108. 160 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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