Mahulena Hofmann

The Right to self-determination:
THE CASE OF GERMANY

Introduction

At the outset, it must be stated that, at present, the right to self-determination does not play a significant role in German constitutional law and practice: Subsequent to the restoration of German unity in 1990, German constitutional law as embodied in the 1949 Grundgesetz in its present version, does not refer to the right to self-determination; rather it could be said that the re-unification of Germany in 1990 is seen as the implementation of this right, held by the German people as a whole. Moreover, in view of the ethnic homogeneity of the population of the Federal Republic of Germany, it is not surprising that no ethnic groups in Germany – other than the German people - are presently considered to be holders of that right. Therefore, the views put forward by German scholars as to the holders, the contents and other aspects of the right to self-determination are to be understood as views of a more general nature which might, however, be applicable to situations in other countries; the same applies with regard to the pertinent practice of German state organs.

This was, however, fundamentally different before the restoration of German unity: During this period, the right to self-determination was of considerable relevance for the foreign policy of the Federal Republic of Germany. Therefore, it seems justified to present, by way of introduction, how this right was referred to by the government and other organs of the Federal Republic of Germany before addressing, one by one, the various questions identified by the organisers of this conference with regard to several aspects of the right to self-determination.

THE RESTORATION OF GERMAN UNITY AND THE RIGHT TO SELF-DETERMINATION

The right to – or principle of – self-determination played quite a significant role in the political efforts made by the various governments of the Federal Republic of Germany in order to bring about the reunification of Germany. In their pertinent practice, three different phases can be distinguished: The first one started in 1949 with the restoration of German statehood, i.e. the foundation of the Federal Republic of Germany and the German Democratic Republic, and ended in 1969 with the advent of the Ostpolitik; the second phase commenced with the initiatives resulting in the conclusion of the treaties between the Federal Republic of Germany and her Eastern neighbours, including the German Democratic Republic, and was terminated by the restoration of German unity on 3 October 1990; and the present phase in which the right to – or principle of - self-determination has ceased to be of relevance concerning the legal situation of Germany herself but is referred to in the context of other issues.

a) The first phase (1949 - 1969) was characterised, inter alia, by the political claim of the government of the Federal Republic of Germany to constitute the sole and only legitimate representative of the German people and of Germany as a whole (Alleinvertretungsanspruch); this position which was, at last in the 1950s, shared by the Western Allies, implied that the government of the German Democratic Republic was not considered as being entitled to represent the population of that territory which, moreover, in the opinion of the government of the Federal Republic of Germany, did not constitute a subject of public international law.

In such a situation, the restoration of German unity or re-unification (Wiedervereinigung) constituted one of the major political goals of any federal government in this period. From a domestic, constitutional law point of view it was based on the formulation of the Preamble to the Grundgesetz which clearly stated that this constitution was to be understood as a temporary, provisional document adopted by those parts of the German people which were able to participate in that process; it also stated that this constitution had been drafted with the resolve to safeguard the national and political unity of the German people and to restore unity and liberty of Germany by means of exercising free self-determination. This goal was also reflected in Article 23 of the Grundgesetz which provided for a right of accession, to the Federal Republic of Germany, by any part of Germany not part of the territory of the Federal Republic of Germany. This provision served, on 1 January 1957, as the legal basis for the accession of the Saar to the Federal Republic of Germany.

On the international plane, the government and other representatives of the Federal Republic of Germany, consistently invoked the right to self-determination, held by all peoples and enshrined, inter alia, in the Charter of the United Nations, as the legal basis, under international law, of this political goal to bring about the restoration of the unity of Germany.

b) In light of the factual developments in Europe and elsewhere, the government led by Chanceller Brandt gave up, in 1969, the claim to constitute the sole and only legitimate representative of the German nation. It initiated the process known as Ostpolitik which resulted in the conclusion, in 1970, of treaties with Poland, the Soviet Union, and Czechoslovakia, and, in 1972, with the German Democratic Republic (Grundvertrag) which, in 1973, paved the way for the membership of both German states in the United Nations and other international organisations.

However, in view of the clear wording of the Grundgesetz and in order to secure a parliamentary majority for the ratification of these treaties, the government developed a formula which came to be used, by all subsequent governments, as a standard formula until 1989: The government pledged that it was a primary goal of its policy to bring about a situation in Europe in which the German people would be in a position, by freely exercising its right to self-determination, to restore its unity.

It should also be noted that the government of the Federal Republic of Germany acted, on the international plane, to secure the applicability of the right to self-determination for the German people: Therefore, it declared, on 15 August 1980, as unacceptable a reservation made by India upon the ratification of the 1966 International Covenants of Civil and Political Rights, and of Economic, Social, and Cultural Rights respectively in which India had stated, with respect to Articles 1 of the Covenants that the exercise of the right to self-determination was limited to peoples under colonial occupation; the government of the Federal Republic of Germany stressed that the right to self-determination which was to be based upon the provisions of the Charter of the United Nations, was held by all peoples.

This political goal became reality in autumn 1989 and spring 1990 when, subsequent to the „fall of the wall", the freely elected Volkskammer, the parliament of the German Democratic Republic decided to invoke Article 23 of the Grundgesetz as the legal basis for the accession of the German Democratic Republic to the Federal Republic of Germany. After most intensive negotiations held in 1990 between the two German states among themselves, and between them and the four Allied Powers, two treaties could be concluded, the Einigungsvertrag, regulating the internal legal aspects of the restoration of German unity, between the two German states, and the 2 + 4 -Treaty, regulating the external legal aspects thereof, concluded by the two German states and the four Allied Powers.

During this period, this process was consistently declared to reflect the free exercise of the right to self-determination by the German people.

c) Subsequent to the restoration of German unity, German authorities continued to refer to the right to self-determination - now, however, with respect to other situations. During the 1990s, they developed a formula which linked the right to self-determination with, in particular, the right to free elections as enshrined, inter alia, in Article 25 ICCPR and stressed that a balance had to be found between the right of any state to territorial integrity and the right of any people to self-determination; in most cases, this resulted in statements calling for establishment of cultural and other autonomies.

As regards Germany, it should be noted that the restoration of German unity resulted in three significant changes in the Grundgesetz which clearly indicate that Germany considers the process of unification to be finalised: This is reflected in the new wording of the Preamble since 1990; the fact that Article 23 of the Grundgesetz was repealed in 1990 and replaced, in 1992, by a wording which enabled Germany to ratify the Maastricht Treaty Establishing the European Union - so, the constitutional provision which served, in 1990, as the legal basis for the restoration of German unity now enables Germany to participate in the process of European integration; and finally the reference in Article 146, the final provision of the Grundgesetz.

THE MEANING OF A CONSTITUTIONAL RIGHT TO SELF-DETERMINATION

In the German doctrine of constitutional and international law, several forms of a manifestation of the right to – or principle of – self-determination can be distinguished:

In the broadest sense, this principle is conceived as a right freely to determine a people’s own state and social order, its internal political status and the direction of its economic, social and cultural development. This internal aspect of the right to self-determination is implemented in a continuous process of the daily political and legal life. One of the forms of the expression of these internal aspects of self-determination can be, e.g., the federal structure of a state or the establishment of an autonomy status within the framework of a territorial state, one of the models of granting autonomy being local or regional government.

Furthermore, this right to self-determination is also construed as a right to the comprehensive determination of a people’s own external status which may include the right to a single territory of that people. This might even include the right of a people to dissociate itself from an existing state, in other words the right to secession. As regards the implementation of this external aspect of the right to – or principle of – self-determination, the reunification of Germany in 1990 must be seen as one of the major "manifestations" thereof.

WHO CAN CLAIM THE RIGHT TO SELF-DETERMINATION?

In the German doctrine of international and constitutional law, three groups of holders of the right of self-determination can be identified: peoples including national minorities provided that they constitute peoples in the sense of international law, peoples under colonial or other foreign domination as well as the population of a sovereign state. However, the question as the exact definition of the holders of this right is controversial, as a matter of terminology as well as of substance.

It is beyond any doubt – and also supported by the wording of Articles 1 of both the 1966 UN Human Rights Covenants - that the main beneficiaries of the right to self-determination are "people" and "nation". However, the criteria for determining these notions are not clearly specified by international law. At least as concerns German doctrine and state practice – see in particular the above-mentioned formal declaration of the German government of protest against the reservation of the Indian Government to the UN Human Rights Covenants - it can be excluded that the right to self-determination should be considered as an exclusive right of peoples under colonial or other foreign domination.

On the other hand, if only linguistic, ethnic or cultural criteria were to be applied in order to define the beneficiary of the right to self-determination, the drawing of the line to define the bearer of this right in the framework of the German-language area in Europe would lead to unacceptable results: Thus, there can be no doubt that as concerns the population of Austria and of the German-speaking cantons of Switzerland do not form part of the German people; this clearly shows that also historical criteria have to be applied.

In the political context of Germany, the question as to the continued existence of only one, single German people was – as shown above - of considerable importance: During the period in which the government of the Federal Republic of Germany claimed to be the only legitimate representative of the German people (Alleinvertretungsanspruch), one argument supporting this policy of a single German people was derived from the view that the government of the German Democratic Republic lacked sufficient democratic legitimation. The second argument was based on an interpretation of the Grundgesetz which was said to be based on the continued existence of the German Reich in the borders of 1937. The critics of this approach stated, however, that a petrification of the beneficiary of this right by linking it to a particular date neglected the essentially historic character of the right to self-determination. Thus, as a result of the above-mentioned Ostpolitik, a pragmatic modus vivendi was agreed between the governments of the two German states which allowed for the establishment of improved bilateral relations without having to decide this question: This approach is best reflected in the wording of the Preamble to the 1972 Basic Treaty concluded between the Federal Republic of Germany and the German Democratic Republic (Grundvertrag) according to which this treaty was concluded "notwithstanding the different concepts of the Federal Republic of Germany and of the German Democratic Republic concerning fundamental questions, among those the national question."

Moreover, in a judgement handed down on 21 October 1987, the Bundesverfassungsgericht explicitly relied on the right to self-determination as an argument to support its conclusion that every acquisition of the citizenship of the German Democratic Republic had, for the legal order of the Federal Republic of Germany, the legal effects of the acquisition of German nationality in the sense of the Grundgesetz. This result which, according to the Bundesverfassungsgericht, was mandatory under the Grundgesetz, was – in the court’s view - also compatible with international law: The then existing quadripartite status of Germany as a whole and Berlin prevented a unilateral secession of the German Democratic Republic from Germany from being legally effective; moreover, as long as the division of Germany was not based upon a free expression of the internationally protected right to self-determination held by the German people, the Federal Republic of Germany was entitled, under international law, to maintain the concept of a uniform German nationality.

Concerning national minorities as one of the beneficiaries of the right to self-determination it has to be mentioned that, at present, there is no legal definition of the notion of a "national minority" neither in the German legal order, nor in the international law instruments binding upon Germany; this was particularly spelled out in the Explanatory Report to the 1995 Council of Europe Framework Convention for the Protection of National Minorities which constitutes, at least in the European context, the most important international instrument in the field of protection of national minorities. In its Comments on the Opinion of the Advisory Committee on the implementation of this Framework Convention of July 2002, the German government stressed the absence of such a definition. Thus, Germany considers national minorities to be groups of the population who meet the following five criteria: Their members are German nationals; they differ from the majority population insofar as they have their own language, culture and history, in other words, they have their own identity; they wish to maintain this identity; they are traditionally resident in Germany and they live in the traditional settlement areas. For the purposes of the application of the Framework Convention, the Danes, Frisians, Sorbs, and Sinti and Roma are considered to fulfil this criteria.

It is, however, essential to note that, according to the predominant view not only in German doctrine, not all groups constituting a national minority are holders of the right to self-determination: This is so because the holder of this right under current international law is a people, but not a minority. Therefore, international minority rights law does not deal with nor includes a right to self-determination but consists of rules concerned with the protection and promotion of the rights of persons belonging to national minorities. It is, however, quite possible that a group of persons which, for purposes of international minority law, constitutes a national minority, is, at the same time, a people in the sense of the international law concept of the right to self-determination. Again, one is faced with the problem that there does not exist any universally accepted definition of the term people under international law – notwithstanding the many efforts undertaken by the United Nations. Most authors concur, however, in stating that a group of persons which constitute a national minority and is as such characterised by common objective criteria relating to culture, history, language, and religion, and subjective criteria such as the common wish to belong to a distinct group of persons and to preserve their distinct identity, must, in order to be considered as a people enjoying the right to self-determination, constitute the numerical majority in a geographically defined territory. So, some national minorities may, according to this opinion, indeed justifiably claim to constitute a people and, thus, to be the holder of the right to self-determination.

Applying these criteria in the German context, it is clear that none of the groups generally recognised as national minorities constitute peoples in the sense of the concept of the right to self-determination.

Under which circumstances can this right be claimed?

The answer to this question depends on who are the holders of this right, the particular historical situation and on the fact whether they are aiming at the implementation of their right to internal or external self-determination:

Starting with divided peoples or nations, the right to self-determination can be exercised by the whole population of the formerly unified state in order to offer the possibility of reunification; the question arises, however, whether the principle of formal democracy requires a decision by a majority of the whole of both parts together, or whether each part of a divided nation may decide its own political destiny. If the division of a nation has already resulted in the establishment of two sovereign and self-organised states, as was the case with Germany and still is as concerns Korea, each of them must be considered as having obtained its own "defensive" right of self-determination, so neither of them would be entitled to decide en lieu of the other. It should be noted that this condition was met in the context of German unification which was based upon a bilateral treaty concluded by the two German states and ratified by their freely elected parliaments.

On the other hand, this implies that – in the context of Germany - the claim for reunification could not be regarded as an interference in the internal affairs of the German Democratic Republic or the Allied Powers. The Federal Constitutional Court stated in this regard: "Other parts of Germany have, meanwhile, found their statehood in the German Democratic Republic. Being organised in this way, they can express their will for reunification with the Federal Republic of Germany only in a form which is admissible according to their own constitution." This position was of particular reference because the former Article 23 of the Grundgesetz which allowed for the accession of "other parts of Germany" to the Federal Republic and to which it implicitly referred, did not state that the expression of self-determination was only admissible in the way provided for by the constitution of the German Democratic Republic.

As concerns, generally speaking, the circumstances of the implementation of the internal aspects of the right to self-determination by national minorities which constitute, at the same time, peoples in the sense of international law, it must be stressed that it is predominantly seen as encompassing, in particular, the right of such groups to the protection and promotion of their distinct identities. Therefore, as long as a government treats such a group in such a way as to respect its corresponding international legal obligations, current international law does not provide for a right to exercise self-determination "offensively", i.e. to strive for secession. This situation is considered to constitute the necessary balance between the right to every people to self-determination and the right of states to territorial integrity.

To the most relevant aspects of the right to the protection and promotion of a people’s distinct identity belongs, along with, linguistic rights, the right to effective participation in the decision-making process on issues of particular relevance to the groups concerned. As concerns Germany and if one were to consider – hypothetically – the national minorities residing there as peoples in the sense of international law, one would have to conclude that the these aspects are guaranteed in Germany: The freedoms of assembly and of association are protected, and guaranteed to all German citizens, including the members of national minorities and ethnic groups, by its Articles 8 and 9. Also the effective participation of persons belonging to national minorities and ethnic groups in cultural, social and economic life and in public affairs is ensured by Germany's constitutional order as a free democratic state under the rule of law. In addition, there are legal protective provisions and practical promotion measures designed to realise such participation. Participation in the formation of the political will of the people is ensured by the right to freely establish political parties. This is laid down in Article 21 of the Grundgesetz. Thereunder, the state may neither impose restrictions on the number of political parties established nor make the establishment of political parties subject to prior authorisation. The members of national minorities and ethnic groups, like the majority population, have the unrestricted right to establish a political party. Also, as German citizens, they come under the scope of the legal provisions on the right to vote in elections, and the right to stand for election, to the German Bundestag, to the Landtage [Parliaments of the constituent states] and to local councils. As regards elections to the German Bundestag and to the Landtage of the Lдnder of Brandenburg and Schleswig-Holstein, political parties of national minorities are exempted from the five per cent threshold imposed under the Electoral Act.

On the other hand, the question as to the conditions under which peoples (including national minorities which constitute peoples in the international legal sense) may exercise their right to self-determination in an "offensive" way, i.e. to strive for secession, is still a most controversial issue. The predominant view in the German doctrine seems to be that such an action would be legally justified if the people concerned were to be discriminated against by the government by means of acts consisting of widespread, persistent, and gross violations of the most fundamental human rights such as mass killings or genocidal measures as, e.g., ethnic cleansing. If, however, these – admittedly: rather extreme – criteria implying a right to secede are not fulfilled, then the people have "only" the right to internal self-determination which, according to a strong view in the German doctrine, should imply a minimum of internal autonomy within the boundaries of its state. On an abstract level, an optimum amount of autonomy is to be demanded, as much autonomy as possible without endangering the unity of a State.

What is the relationship between constitutional law and international law in respect to the right of self determination?

The question of the relationship between German constitutional law and the legal rules concerning the right of self-determination has to be addressed in light of the relation between constitutional and international law in general:

According to Article 25 of the Grundgesetz, the general rules of public international law are an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory. The full content of this category of "general rules of international law" remains, however, unclear in the German doctrine: The majority of opinions tends to the view that universal international treaties as such do not belong to this category; it is held, however, that some of the provisions of such general treaties as, e.g., those on human rights have reached the status of customary law and would, therefore, fall into this group; however, there is no unanimous view in this respect.

This applies, in particular, to the question of the legal status, and in particular the contents, of the right to self-determination as enshrined in Article 1 of both International Covenants on Human Rights and as norm of customary law. A consensus can be observed only insofar as it is generally held that the process of the consolidation of international human rights law resulted in a general recognition that states are under basic obligation to protect the life and physical integrity of its citizens. If a state machinery turns itself into an apparatus of terror which persecutes specific groups of its population, these groups cannot be held to be under a legal obligation to remain loyally under the jurisdiction of that State.

As concerns the position of international law treaties in the domestic legal order of Germany, the pertinent provision is Article 59 of the Grundgesetz. According to this provision, international treaties that relate to a subject of federal legislation require the consent or participation, in the form of a federal statute, of the bodies competent in any specific case for such federal legislation. The doctrine interpretes this provision as encompassing treaties creating such rights and obligations for domestic subjects which could be – by means of domestic law - only in the form of a formal federal statute. This fact, i.e. passing of a federal statute, determines also the position of such treaty within the domestic legal order: It takes the rank of federal statute law which takes precedence over infrastatutory federal law, but also statutes of the Lдnder as a result a of the supremacy of federal law and in order to reflect the principle of primacy of international law, it is, as a rule, to be applied as the more specific law overriding other federal laws.

Now, as concerns the question as to the direct applicability of Article 1(2) of the UN Charter – as a treaty duly ratified by and in force for Germany – as regards the principle of self-determination, there is, again, no unanimous opinion: On the one hand, the view has been presented that this provision should be interpreted as directly applicable law, a view supported by the fact that the statute of an international organisation should be subject primarily to objective interpretation, which does not need to strictly follow the subjective intent of the founders of the organisation, but rather respects subsequent developments and changing circumstances. As an additional argument for this position serves Article 2(4) of the Charter prohibiting the Member States from all activities which could impair its "purposes"; the legally binding nature of the purposes is presented as "undoubtedly clear", since they are expressly described as the object of the legal protection. On the other hand, there are also more cautious positions towards this reasoning and its results. Both positions concur, however, in stating that the reference to the right of self-determination in Article 1(2) of the UN Charter does not sufficiently clarify the contents and scope of that right. The mentioning of the self-determination principle in Article 55 of the Charter is interpreted as being of merely declaratory character.

What processes should be followed to realise such rights, within the framework of a state or, in an extreme case, through secession?

One of the preconditions of the implementation of the right to self-determination is some kind of expression of the popular will. If the majority of a group has no will to defend its characteristics, its distinct identity, this group is not considered to be qualified to be a holder of the right of self-determination, since without this will no such right exists. The existence of this will is a factual, rather than a legal question; as a most unequivocal expression of this will is considered a plebiscite.

As concerns Germany, it should be noted that the preamble of the Grundgesetz which – until 1990 - contained a clause according to which the entire German people was called upon to achieve in free self-determination the unity and freedom of Germany had been interpreted in 1973 by the Bundesverfassungsgericht as creating a legal obligation for all state organs to seek with "all their means" the reunification of Germany. However, the Court’s decision opened a wide field for political discretion as to the choice of means deemed necessary for achieving this goal. Thus, the state organs of the Federal Republic were not allowed to waive the political objective of reunification. However, almost all kinds of political measures were admissible, for example the creation of a confederation of the two German states. Finally, under that decision, the Federal Government was not allowed to contribute to the creation of legal titles susceptible of preventing reunification, for instance by making reunification dependent on approval of third States.

At the end of 1989 and during the first months of 1990 it was not yet clear whether or how the unification of Germany could come about. Proposals concentrated on the possibility of a close co-operation of both states, potentially in a form of a confederation. Later on, it became clear that the German Democratic Republic would join the Federal Republic of Germany. The Grundgesetz seemed to offer two alternatives for the unification process: Article 146 provided for the adoption of a new constitution "by a free decision of the German people". The other alternative was offered by its Article 23 in the form of an accession; as already mentioned, the second option was eventually chosen.

Conclusion

The reunification of Germany in 1990 – in the eyes of many German authors a manifestation of the principle of self-determination, and by others seen „only" as the bringing to an end of an artificial separation of a nation – happened as a result of the end of the Cold War and in the period of an extensive application and implementation of this principle in other geographical areas of Europe: As examples, the dissolution of Czechoslovakia, the break-up of the Soviet Union and the dismemberment of the Socialist Republic of Yugoslavia can be mentioned.

Despite of the enormous significance of the principle of self-determination for the destiny of many new states, the precise meaning of the constitutional principle of self-determination, the preconditions of its implementation and the necessary steps leading to its implementation have – as yet - not been defined precisely in international law. This might not be so surprising if one considers that, notwithstanding the high significance of the right to self-determination for the recent history of Germany, neither its domestic legal order, nor the jurisprudence of the Bundesverfassungsgericht, nor the doctrine itself have achieved this goal. This might have several reasons: At first, it must not be forgotten that the implementation of the external aspect of this right almost always results in a collision with the principle of territorial integrity and sovereignty of a territorial State. Second, the practical relevance of the elaboration of precise legal rules seems to be less important than expected: Although even the right to secession was laid down in Article 72 of the Constitution of the Union of the Soviet Socialist Republics of 7 October 1977, as well as in Part One of the Preamble to the Constitution of Yugoslavia of 21 February 1974, this did not prevent the existence and even clash of opposing views about its precise contents and the means and ways of its implementation.

ПРАВО НА САМООПРЕДЕЛЕНИЕ
Проблема Германии

М. Хоффман
Доктор права (Прага)
Институт сравнительного публичного и
международного права Макса Планка
(Хайдельберг, Германия),
Преподаватель юридического факультета
Института Карла (Чарльза) (Республика Чехия)

Резюме

В данной работе исследуются вопросы, связанные с правом (принципом) самоопределения в контексте объединения Германии. Выделяются основные этапы развития проблематики о самоопределении, которые были в повестки дня современного германского государства. (Первый этап, начавшийся в 1949 году с возникновением ФРГ и окончившийся в 1969 году с началом «Восточной политики» канцлера Вили Брандта; второй этап, начавшийся в 1969 году и окончившийся воссоединением Германии в 1990 году; и наконец третий этап, начавшийся с момента объединения Германии и длящийся по сей день). В работе дается краткая характеристика данных этапов развития проблематики о праве на самоопределение.

Особое внимание в работе уделено вопросу о возражении ФРГ на оговорку, сделанную Индией 15 августа 1980 года при ратификации Международного пакта о гражданских и политических правах и Международного пакта об экономических, социальных и культурных правах 1966 года. В соответствии с вышеупомянутой оговоркой в отношении статьи 1 обеих пактов Индия объявляла, что осуществление права на самоопределение принадлежит лишь народам, находящимся под колониальным игом. Германское правительство отвергло оговорку Индии подчеркнув, что основанное на положениях Устава ООН право на самоопределение принадлежит всем народам.

Далее рассматриваются аспекты права на самоопределение, существующие в германской доктрине международного и конституционного права. Отмечается, что в широком смысле под принципом самоопределения понимается право народа свободно определять свой государственный и общественный строй а также основные направления своего экономического, социального и культурного развития. Проявлениями внешнего самоопределения могут рассматриваться, например, установление федеративного устройства или предоставление автономного статуса определенным образованиям. Наряду с вышесказанным отмечается, что право на самоопределение может включать, также право народа определять свой внешнеполитический статус, включая право обладания единой территорий, и следовательно право на отделение (сецессию). По словам автора одним из наилучших проявлений осуществления права на самоопределение явилось воссоединение Германии в 1990 году.

В работе довольно тщательно рассмотрены вопросы, связанные с определением обладателей (бенефициариев) права на самоопределение, отмечается, что германская доктрина выделяет три группы обладателей права на самоопределение; народы и нации в смысле международного права, народы находящиеся под колониальной или иной иностранной оккупацией, и население суверенного государства. Одновременно отмечается, что определение вышеуказанных групп продолжает оставаться спорным.

Развивая данную проблематику автор отмечает, что для выявления конкретных обладателей права на самоопределение в каждом конкретном случае недостаточно применение только языковых, этнических или культурных критериев, исторические предпосылки и критерии также должны приниматься во внимание.

В работе делается попытка выявить те обстоятельства при наличии которых народы и нации, включая национальные меньшинства, которые одновременно являются нациями в смысле международного права, могут осуществлять право на самоопределение посредством отделения от государства.

Отмечается, что несмотря на то, что данный вопрос остается противоречивым, тем не менее согласно доминирующей в германской доктрине точки зрения отделение или борьба за отделение будут рассматриваться, как оправданные с юридической точки зрения, если определенный народ или нация подвергаются дискриминации со стороны правительства, посредством актов состоящих из широкомасштабных, непрерывных, серьезных нарушений наиболее основополагающих прав человека, коими являются массовые убийства или геноцидные меры, такие как, например этнические чистки.

В заключении отмечается, что объединение Германии в 1990 году многими немецкими авторами рассматривалось именно как проявление принципа самоопределения, хотя некоторые авторы рассматривали объединение лишь как прекращение искусственного разделения Германии, которое являлось результатом окончания холодной войны.