Germany: Preserve Past, Build Future

The lawyers' role in shaping a unified Germany

By , A. Bradley Shingleton practices international law from Washington, D.C. and Ronald Bee is director of Research for Access, a Washington international affairs group.

WITH East Germany deciding to unite with West Germany on Oct. 3, 1990, the rapid movement toward German unification has left not only diplomats, but also lawyers, struggling to keep pace. While the diplomatic challenge of developing a new political structure for a unified Germany has absorbed much energy and attention, the immense challenge of revamping existing legal structures has received only sporadic international attention. A unification treaty between the two Germanys governing legal and political issues was signed last Saturday. This treaty will do much to clarify the legal uncertainties surrounding the unification process, but much will remain to be done: the moral and structural rehabilitation of the legal system in East Germany, the resolution of legal questions that are impeding economic development, and the termination of the unique legal regime that has given the Four-Powers responsibility for ``Germany as a whole'' for the past 45 years.

The legal issue of greatest importance for the economic revival of East Germany is that of property titles. This issue reflects the convolutions of recent German history. It involves the legal effect of Nazi expropriations, Four-Power reparation seizures, and several expropriation decrees of the East German Communist regime. As a result of the legal confusion caused by these past acts, the ownership of much desirable property in East Germany has been unclear, and badly needed investment has been impeded.

It is not surprising that the negotiations toward the unification treaty addressing these issues contributed to the virtual collapse of the East German governing coalition. While that government has no desire to defend the legal structures implemented by its Communist predecessors, it understandably sought fair treatment of its citizens in a period of difficult transition. This goal has been difficult to achieve not only because of West Germany's much greater political and economic weight in the negotiations, but also because of real sociological differences separating the two societies.

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On abortion, for example, West Germany's ruling Christian Democratic Party reflects its Roman Catholic origins in its restrictive stance on abortion, while East Germany, with far fewer Catholics, views the situation differently. With regards to abortion, at least, the two Germanys have agreed to disagree, with both existing abortion laws remaining valid, at least for a provisional time, in East and West.

Another problem is the collapse of the East German judicial system. Many judges, who had been paid less than factory workers and were evaluated according to their socialist rigor, are uncertain of their fate. Proposals were made to retrain East German judges in a judicial academy in West Germany, but critics compared this to the shameful times when former Nazi judges were accepted into the West German judiciary in the immediate postwar period simply on the grounds of pressing economic and social need.

As hard as it is to merge two widely different legal and judicial systems (until recently, there were only 600 lawyers in East Germany), clarification of the international legal obligations of a unified Germany is no less difficult. West Germany says a unified Germany will honor existing contracts of East Germany.

East Germany has said it will honor all existing contracts with the Soviet Union and the East bloc's Council for Mutual Economic Assistance. But what if the terms of those agreements conflict with existing West German or European Community (EC) law? Will the Soviets now receive hard currency deutsche marks for their energy exports to the ``Eastern part of Germany''?

The legal regime of the new Germany is not a matter of mere academic curiosity. Commercial and real estate laws that regulate investment by United States, European, and other foreign businesses in the eastern part of Germany will directly influence the economic pace and success of German unification. The political and economic effects will, in turn, be felt throughout Central and Eastern Europe, as well as in the Soviet Union. The first step toward a Europe ``whole and free'' should take place in Germany. In any event, lawyers, for better or worse, will be integral in forming the structures to support a democratic and unified Germany. A nation of laws, and not individuals, could have it no other way.

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