West Berlin - Legal Status

Legal Status

According to the legal theory followed by the Western Allies, the occupation of most of Germany ended in 1949 with the declaration of the Federal Republic of Germany (23 May 1949) and the German Democratic Republic (7 October 1949). However, because the occupation of Berlin could only be ended by a quadripartite agreement, Berlin remained an occupied territory under the formal sovereignty of the allies. Hence, the Grundgesetz (the constitution of the Federal Republic) was not fully applicable to West Berlin.

When on 4 August 1950 West Berlin parliament passed the new constitution (Verfassung von Berlin), declaring Berlin being a state of the Federal Republic and the provisions of the Grundgesetz being binding law superior to Berlin state law (Article 1, clauses 2 and 3) this became only statutory law on 1 September including the western Allied proviso that Art. 1, clauses 2 and 3, are not valid (literally in German: zurückgestellt, i.e. deferred for the time being, the clauses became valid law on 3 October 1990, the day of the German unification) and that Art. 87 (clause 3), specifying that as far as for the time being the western Allies accepted provisions of the Grundgesetz as applicable they are only considered as superior law in so far as it is necessary to prevent conflicts between the Grundgesetz and the Constitution of Berlin (West). Thus civic liberties and personal rights (save the secret of telecommunications) guaranteed by the Grundgesetz were also valid in Berlin (West).

In addition, West German federal laws did not apply to West Berlin, but the House of Representatives of Berlin (German: Abgeordnetenhaus von Berlin; the West Berlin legislature; reunited Berlin's legislature bears the same name) used to vote in every new federal law without debate to maintain legal status with the pre-1990 Federal Republic of Germany.

The ambiguous legal status of West Berlin, then still legally styled as Greater Berlin, although technically only comprising the western sectors, meant that West Berliners were not eligible to vote in federal elections. In their notification of permission of 12 May 1949 the three western military governours for Germany explained their proviso in No. 4, as follows:

"A third reservation concerns the participation of Greater Berlin in the Federation. We interpret the effect of Articles 23 and 144 (2) of the Basic Law as constituting acceptance of our previous request that while Berlin may not be accorded voting membership in the Bundestag or Bundesrat nor be governed by the Federation she may, nevertheless, designate a small number of representatives to the meetings of those legislative bodies".

Consequently, West Berliners were indirectly represented in the Bundestag in Bonn by 20 non-voting delegates chosen by the city's House of Representatives. Similarly, the Senate sent four non-voting delegates to the Bundesrat.

However, as West German citizens, West Berliners were able to stand for election, such as Social Democrat Chancellor Willy Brandt, who was elected via his party's list of candidates. Also, men there were exempt from the Federal Republic's compulsory military service; this exemption made the city a popular destination for West German youths, which resulted in a flourishing counterculture, which became one of the defining features of the city.

The Western Allies remained the ultimate political authorities in West Berlin. All legislation of the "Abgeordnetenhaus", the domestic state and the adopted federal law, only applied under the proviso of the confirmation by the three Western Allied commanders-in-chief. If they approved a bill, it was enacted as part of West Berlin's statutory law. If the commanders-in-chief rejected a bill, it did not become law in West Berlin; this, for example, was the case with West German laws on military duty. West Berlin was run by the elected Governing Mayor of Berlin (the mayor of reunited Berlin bears the same title) and the Senate of Berlin (city-state government, the government of reunited Berlin bears the same name) seated at Rathaus Schöneberg. The Governing Mayor and Senators (ministers) had to be approved by the Western Allies and thus derived their authority from the occupying forces, not from their electoral mandate.

The Soviets unilaterally declared the occupation of East Berlin at an end along with the rest of East Germany. This move was, however, not recognised by the Western Allies, who continued to view all of Berlin as a jointly occupied territory belonging to neither of the two states. This view was supported by the continued practice of patrols of Allied soldiers of all four Allies in all four sectors. Thus, occasionally Western Allied soldiers were on patrol in East Berlin and Soviet soldiers were patrolling in West Berlin. After the Wall was built, East Germany wanted to control Western Allied patrols upon entering or leaving East Berlin, a practice that the Western Allies regarded as unacceptable. So, after protests to the Soviets, the patrols continued uncontrolled on both sides, with the tacit agreement that the western Allies would not use their patrolling privileges for helping Easterners to flee to the West.

In many ways, West Berlin functioned as the de facto 11th state of West Germany, and was depicted on maps published in the West as being a part of West Germany. There was freedom of movement (to the extent allowed by geography) between West Berlin and West Germany. There were no separate immigration regulations for West Berlin: all immigration rules for West Germany were followed in West Berlin. West German entry visas issued to visitors were stamped with "valid for entry into the Federal Republic of Germany including Berlin (West)", authorising entry to West Berlin as well as West Germany.

West Berlin remained a military occupation zone until 3 October 1990, the day of unification of East Germany, East and West Berlin with the West German Federal Republic of Germany. The West German Federal Government, as well as the governments of most western nations, considered East Berlin to be a "separate entity" from East Germany.

Communist countries, however, did not recognise West Berlin as part of West Germany and usually described it as a "third" German jurisdiction, called selbständige politische Einheit (independent political entity). On maps of East Berlin, West Berlin often did not appear as an adjacent urban area but as a monochrome terra incognita, sometimes showing the letters WB, meaning West Berlin, or overlaid with a legend or pictures. It was often labelled "Besonderes politisches Gebiet Westberlin" (West Berlin special political area).