Status of Int'l Law and Change of Governments?

[PFLB]

There is no specific rule saying it can be done. Nor is there any specific rule saying it can't. Therefore, yes it can be done. The whole of the law of belligerent occupation presumes that an occupying power may assume control of the administration of occupied territories. However, there are rules regarding the preservation of local laws and bureaucracies.

[David Thompson]

Panzermahn – You asked: (1)

Are there any legal provisions in international law that allows occupying nations to dissolved the legitimate government of Germany in May 1945 (the Flensburg Government under Grand Admiral Karl Dönitz which were appointed by Hitler in his last will and testament)

Not provisions, but principles and consequences. Once Germany surrendered unconditionally, the allies could do anything that wasn't prohibited by international law, according to the old principle "what is not forbidden is permitted."
(2)

I am no international law expert but isn't the normal convention that if the legitimate government of a sovereign nation was dissolved by external forces, that nation itself was de facto dissolved

No, because the nation is not the same thing as its government.

A nation is a group of people who share common history, culture, ethnic origin and language, often possessing or seeking its own government. . . . A nation is different from a country in that a country is the land that belongs to a nation, and from a state in that a state is the government of the nation and country.

http://en.wikipedia.org/wiki/Nation

[Hecht]

I admit, I was a bit intoxicated yesterday, but it's still unclear the issue here to me.

Hadn't signatory countries to give POWs of all signatory and non-signatory countries the rights assigned by the convention?
So, if Vichy did not sign, who cares?
The Allied did (USA and UK), so, being Le Clerc in full USA uniform, he was supposed to respect the Geneva Convention, am I wrong?

I may be, of course, just my two cents.

[PFLB]

It doesn't really make any difference in this instance, since executing POW's was prohibited by customary law anyway.

[Hecht]

It doesn't really make any difference in this instance, since executing POW's was prohibited by customary law anyway.

PFLB, thanks for reply.
May I ask you, then, if we are not talking about this, what's the relation between BR case and this thread?
I really can make it out, yeah, I seem stupid, but I'm not.

[phylo_roadking]

Hadn't signatory countries to give POWs of all signatory and non-signatory countries the rights assigned by the convention?
So, if Vichy did not sign, who cares?

Weeeeell...Vichy didn't hold POWs, it held "internees" There were a lot of post-Dunkirk evaders made it to Vichy - and were held there interned under virtual prison conditions...so not much difference for THEM, but a big difference in their legal position/protections

[David Thompson]

Hecht -- I think this thread is a spinoff from the Bad Reichenhall thread dealing with a side question, not a continuation of the original thread.

[PFLB]

Yes, I'm just pointing out that whether or not a state bears treaty obligations, it is still bound by customary law and general principles. Nowadays, one would scarcely have occasion to consider this issue with respect to any aspect of the treatment of POW's, because the rules of the 4th Geneva Convention are more or less entirely customary.

[Rob - wssob2]

Hi all –

I split this topic of because, as Dave Thompson said, it is tangential to the Bad Reichenhall thread – what happens to the status of international laws when the government that signed them disappears.

(and thanks Dave for your cogent answers)

It seems that things are a lot more clear since the 1969 Vienna Treaty; however PFLB wrote

The subjects of international law are states, not governments. A change of government does not affect the state's treaty obligations, just as changing the board of directors of a company does not affect its contractual obligations.

This sounds to me as if the seas may raise and the heavens may fall, but international treaties are omnipotent and last od infinitum. This sounds illogical to me, or at least ahistorical. For example, Iran under the Shah may have ratified the International Covenant on Civil and Political Rights (ICCPR), but Khomeini’s 1989 fatwa against Rushdie effectively nullified it.

Since the connection between the Bad Reichenall case and this thread is not clear enough to me, may I kindly ask, are we suggesting that since Vichy was considered an uncostitutional Government, then Vichy men serving in german units were not covered by the Geneva Convention?

The GPRF government declared the Vichy government – and the laws it enacted - unconstitutional.

So if the Vichy government legislated that Frenchmen could serve in the Wehrmacht or SS, but the 1945 French government declares Vichy’s legislation unconstitutional, what happens to the status of Frenchmen captured in German uniform?

Interestingly enough, the GPRF relied on Articles 75-86 of the French Penal Code (revised in 1939 by the Third Republic, revised again by DeGaulle’s provisional government in 1944) regarding cases of treason – and specifying the death penalty. Serving in the uniform of a belligerent of France is, in short, treason. (For a good synopsis of the relevant articles of the French Penal Code, see The collaborator: the trial & execution of Robert Brasillach, p.78)

The Bad Reichenall case pits international law protecting POWs vs. national laws punishing treason. The multiple French governments in the 1939-45 time period further complicate the issue, IMO.

[PFLB]

I'm not talking about treaties, I'm talking about states. What you are referring to there is the abrogation of a treaty, not the extinction of a state. A state can always a abrogate a treaty, assuming that the treaty does not itself contain provisions against this. But until it does so, the treaty continues in force irrespective of any change in government.

[michael mills]

From the Wikipedia article on Germany's legal position linked by the moderator:

This was followed by the unconditional surrender of the German Wehrmacht on May 7th in Rheims and on May 8th in Berlin-Karlshorst (often incorrectly referred to as "Germany's surrender"), from which, due to its nature as a purely military capitulation, no legal consequences for the legal status of the German Reich arose.[2]

So there was never any formal surrender by the Government of the German State. There was only a series of surrenders of parts of German armed forces in various places (Luneburg Heath, Rheims, Berlin), which had been authorised by the Government of the German State.

The Allied Governments never called upon the Government of the German State to declare officially that it surrendered, and to sign an instrument of surrender. Instead, their armed forces overthrew the Government of Germany in a coup d'etat and arrested its members.

The Allied Declaration of 5 June 1945 in effect abolished the sovereign German State, and subjected the territory formerly possessed by that State to the sovereignty of the Allied States. The citizens of the former German State in effect became stateless persons, no longer under the protection of a sovereign power, but entirely subject to the will of the Allied Governments.

The situation created by the Allied Declaration of 5 June created a situation that was fundamentally different from a legal military occupation as defined by the international law applicable at the time. In the latter situation, a sovereign state whose territory is occupied in whole or in part by the military forces of an enemy does not cease to exist; rather, the occupying military force is permitted to administer the territory under its control on behalf of the Government of that territory, and is not permitted to change the legal system in the occupied territory. The occupying force is permitted to take measures to protect its own personnel eg to arrest citizens of the State whose territory is occupied if they pose an actual threat, but it is not permitted to punish citizens purely because of their belonging to a particular category of persons, such as members of a particular political party.

It is clear that the actions of the Allied Governments went beyond what was permissible under the international law of that time. For example, they made changes to the legal system, and punished individuals for membership in the National Socialist Party. They considered themselves entitled to take such measures on the basis that the German State had ceased to exist, that they now exercised sovereign power over the territory and population of that abolished state, and therefore could undertake any measure that a sovereign State may undertake in relation to persons subject to it.

The situation in defeated Germany was therefore quite different to that in defeated Japan. In the latter case, the Allied Governments called upon the Government of the Japanese State to accept terms of surrender (the Potsdam Declaration), which that Government eventually did, ordering its armed forces to surrender in the field. The Allied Governments did not then abolish the Japanese State, but rather went through a process of official acceptance of surrender by the Government of that State. The following Allied occupation of the territory of the Japanese State operated according to the international law of the time; the Japanese State and its Government remained in being, but with its sovereignty limited by the powers of the occupation administration. Such changes that the occupiers wished to make to the legal and administrative system were effected by agreement with the Government of the Japanese State.

The Allied occupation of Japan might be compared with the German occupation of Denmark, where the Danish State remained in being, its existing Government remained in office, and the Head of State, the King, remained in the country and continued to reign (there were even parliamentary elections during the German occupation).

I have compared the legal status of Germany after the Allied Declaration to that of Poland at the end of 1939, after the surrender of that country's armed forces and the flight of the members of its Government to Romania and their internment there. In that case the two victor powers, Germany and the Soviet Union, declared the abolition of the sovereign State of Poland and their assumption of the sovereign power over the territory and population of that former state. In the view of the German and Soviet Governments, their subsequent actions in the territory of the abolished Polish State were not subject to the international law of the time governing the occupation of enemy territory, since they now exercised full sovereign power over that territory and its population, and they were permitted to carry out any act which a sovereign power was entitled to undertake in relation to the population subject to it.

[PFLB]

Ah yes, your pet obsession. Rather than selective interpretation of abstractions, we can resolve the issue from the outset simply by considering state practice and opinio juris sive necessitatus. Many countries did not recognise the Polish state as extinguished but continued to treat the Polish government-in-exile as exercising sovereignty. Declarations such as St James and Moscow, the formation of the UNWCC and the London Agreement itself express or imply that Poland was treated as being under belligerent occupation. On the other hand, no state disputed that the Four Powers assumed sovereignty over Germany. That's the orthodox legal position, as I have said.

And finally, what exactly does your long-winded post have to do with the point raised by the OP? Are we to assume that you will be copying and pasting this into every thread where there is a remote possibility that it will be relevant?

[David Thompson]

PFLB - Please avoid personal remarks about other posters, and address the merits or demerits of the argument.

[PFLB]

I think I did in fact do that, in brief form - brief because someone has already responded to exactly the same arguments in another thread.

[michael mills]

So, PFLB, you accept that the only difference between the abolition of the Polish State by Germany and the Soviet Union in 1939, and the assumption by the Governments of those two States of sovereign power over the territory and population of the abolished Polish State, and the abolition of the German State by the Allied Governments in 1945 and their assumption of sovereign power, was that in the former case the abolition was disputed by the two powers at war with Germany, Britain and France (and later also by the Soviet Union, at least in respect of the Polish territorey it had not itself annexed), whereas in the latter case there was no power that disputed the abolition of German sovereignty.

That is exactly the point I made in another thread.

But the basic point that I was making, that is relevant to this thread, is that there was no formal surrender by the Government of the sovereign German State, neither did that Government agree, through a formal legal process, to the transfer of the sovereign powers of the German State to the Allied Governments. The Allied Governments simply seized the sovereign power over the territory and population of the German State by force, through the defeat by their armed forces of the armed forces of the German State; the Allied Declaration of 5 June 1945 explicitly based the extinction of the sovereignty of the German State on the military victory of the Allied armed forces.

In that respect, the situation in Germany in 1945 paralleled that in Poland in 1939, where there was no formal surrender by the Government of the Polish State, nor any negotiated transfer of the sovereign powers of that State to Germany and the Soviet Union.

The title of this thread is in fact slightly misleading. What happened in Germany in 1945 was not a "change of government", the replacement of of one government of a sovereign State by another government, but rather the abolition of the State itself, and the subjection of its territory and population to the sovereignty of other States.

Subsequently, two new States were created by the Allied Governments on the remaining territory of the abolished German State, the Federal Republic of Germany and the German Democratic Republic, but the legal connection of those States to the German Reich abolished in 1945 seems to be unclear. It is noteworthy that the Government of the GDR always claimed that it was not a successor to the former German Reich, but rather an entirely new sovereign State created on territory that did not belong to any State , and therefore it was not bound by any obligations of the former German Reich, eg it had no legal obligation to pay reparations for damage caused by the former German Reich.

The Government of the FRG did accept obligations arising from the actions of the former German Reich, but that was at the insistence of the Western Allied Governments, which wanted a legal basis for claiming reparations.