Читать книгу The New German Constitution - René Brunet - Страница 18

The territorial status of states is regulated by Article 18 of the Constitution.

This, as we have said, is a compromise; its leading idea is to fortify and draw closer the bonds of unity within the Reich on the basis of a new redistribution of territory according to economic and social interests and taking into account the wishes of the population. It is true that this has the value only of a programme without positive legislative force; nevertheless it has its importance; it presents the principle of a progressive revision of the territories of the states, a revision whose new unities would form organic divisions of the Reich such as would serve to a maximum degree the interest of the whole German people. The idea which should direct this territorial regrouping must be exclusively the interest of the German nation in its ensemble. The territorial status of the states no longer has as formerly a value absolute in itself, but is thereafter subjected to the condition that it assures in the largest measure possible the highest well-being of the Reich as a whole. There is in this undoubtedly a victory for the unitary idea.

Frontiers, therefore, will be “mobile” and their modification will have to serve the development of the general welfare. It will have to be the Reich that will be called upon to preside over the question of new repartition of territories, because it alone is the holder of sovereignty in Germany, and because it alone is in position to maintain an equal balance between the varied and particular interests of the states. No territorial change whatsoever, whether a fusion, a separation, or the creation of a state, will be possible or operative no matter what conditions exist for its consummation, without a law enacted by the Reich.

In addition—and this general rule must be followed every time that a change is envisaged which does not constitute an exception expressly provided for—such a law of the Reich must be enacted in the form of a constitutional law.

This rule has three exceptions in which an ordinary law of the Reich suffices, provided that a certain number of other conditions are realized.

(1) An ordinary law is sufficient when the change, the separation or the union of territories takes place with the consent of the interested states. This consent manifests itself in the form of a declaration of the governments of the states; for these governments by virtue of the constitution enjoy the confidence of the people, since they are supposed to be both democratic and republican; in which case a plebiscite is superfluous.

(2) But cases may present themselves in which populations wish to separate from a state to which they belong, against the desires of the government of the state. The Constitution provides that the wish of these populations must be followed. According to Article 18 an ordinary law is sufficient to permit territorial changes or the creation of states if the interested states do not consent to it, but if the wish of the population demands it and at the same time the preponderant interest of the Reich requires it. This provision is evidently directed against Prussia; for should in such a case a constitutional law be demanded Prussia would command a sufficient number of votes in the Assemblies to prevent changes it did not wish. The dismemberment of Prussia is thus rendered theoretically possible by this provision. But we know that this provision is not applicable before August 12, 1921.

It remains to be seen how the wish of a population can manifest itself in the operation of the latter provision.

The population may either be consulted by the government of the Reich, which can order an immediate plebiscite; or the population can take the initiative and impose on the government of the Reich the obligation of ordering the plebiscite. This initiative must be signed by a third of the inhabitants of the territory whose separation is asked for. The plebiscite in such a case must be ordered by the government of the Reich.

Whether the plebiscite is ordered by the government or results from popular initiative, it must, to be effective, satisfy the following conditions of majority. They must obtain (a) three-fifths of the total number of votes cast; (b) a majority of the votes of the inhabitants entitled to suffrage; (c) and finally when the question is one of dividing a territory which wishes to separate from its state, the population of the whole district or administrative division of which it was a part must be consulted; this in order to avoid break-ups due to parochial quarrels. In other words, the plebiscite must extend to the whole district even if the part that wishes to separate forms only a fraction of this district. Nevertheless Article 18 provides for practical purposes one exception to this third condition. This refers to exceptional districts, that is to say, sections of territory that have no geographical kinship with the district to which they belong. In such a case a special law of the Reich could decide that the wish of the population of this special district is sufficient and that the entire population of the district to which it belongs need not be consulted.

The plebiscite having rendered an affirmative verdict the government of the Reich must submit to the Reichstag the project of law necessary to effect the changes in territory desired by the population.

(3) An ordinary law is sufficient to modify the outer boundaries of the state, that is to say, the frontiers of the Reich itself, when these are necessitated by a treaty of peace. When these modifications are to be effected otherwise than by the special case of a treaty of peace, the consent of the state affected must be obtained (Article 78).

Such are the provisions of the Constitution relative to the territorial status of the states, but it must be recalled that certain of these provisions—those which aim at territorial change based on the desires of the population but against the wishes of their state government—do not become operative until two years after the adoption of the constitution. Thus up to August 12, 1921, no parcel of the territory of Prussia, Bavaria, Hesse, Oldenburg, occupied by foreign armies, could be constitutionally taken away from their states without their wish. The aim pursued by the constituent Assembly in adopting this provision was to combat separatist attempts of powers whose armies occupy German soil, and to avoid all appearances and possibilities of dismemberment until revolutionary effervescence and political disorders shall have come to an end.