Falls of the Danube sinking
The case of the sinking of the Danube is a legal dispute fought in 1927 before the State Court for the German Reich between the states of Württemberg and Prussia on the one hand and the state of Baden on the other hand over the quantitative impairment of the Danube water .
background
In the upper reaches of the Danube river bed and the shore sinks in the natural condition of water (so-called Danube Sinkhole ), the several kilometers further south in Aachtopf , the source of Radolfzeller Aach comes to light again. On a few days of the year the river sinks completely, during which the Danube water sinks completely over a distance of ten to twelve kilometers and the river dries up until further tributaries enter. The number of days per year on which full subsidence occurs is subject to natural fluctuations.
Since 1900 the number of annual full immersion days had increased and in 1921 it had reached a record of 309 days. The lack of water caused considerable damage to many people bordering the Danube and other interested parties dependent on the Danube water, such as operators of water mills and hydropower plants .
At the time of the legal dispute, two of the main sinking areas of the Danube were in the area of the state of Baden (in the municipalities of Immendingen and Möhringen ) and one in the area of the state of Württemberg (in the municipality of Fridingen ). After the Baden and Wuerttemberg area, the Danube also flowed through the province of Hohenzollernsche Lande , which belongs to the State of Prussia . The Aach, on the other hand, only flowed through Baden.
Interventions complained about and requests made
In response to the increasing number of days of full sinking, which was attributed to an increase in the amount of water sinking, the state of Württemberg requested the state of Baden to take measures against the increasing sinking. The Immendingen located on the territory of the municipality in the Danube was objected concrete for a dam , whose reservoir, a large part of the dammed Danube water sank, and its inventory and Versinkungspotential the state of Baden consciously to change contactors to the Aach as much water from the Danube to come to to let. On the other hand, it was objected that the state of Baden - again in favor of the Baden residents of the river Aach - had no longer allowed the Danube residents in its area below Möhringen (and thus shortly before the border with the state of Württemberg) to use the main sinkholes, as was customary until then, when the water was low to clog in order to be able to use the Danube water even at low tide. After years of negotiations between Württemberg and Baden remained unsuccessful, the state of Württemberg applied to the State Court of Justice to oblige the state of Baden to stop the disputed interventions.
The state of Prussia, in whose province of Hohenzollernsche Lande the increasing sinking of the Danube also had a damaging effect, had joined the court proceedings on the part of the state of Württemberg and had joined its applications.
The state of Baden argued that the sinking of the Danube was not a river tap , but a fork in the Danube into two rivers, i.e. the Aach was an arm of the Danube and the Aach neighboring Danube neighboring. In addition, the increase in full sinking days is not due to greater sinking of the Danube water, but to lower rainfall. In addition, there is also a lack of a legal basis for the claims asserted by the state of Württemberg: The violation of the trade regulations alleged by Württemberg is wrong because it does not regulate any legal relationships between the states of the German Reich ; Wuerttemberg could not derive any claim from the alleged violation of Baden water law, and finally no claim could arise from principles of international law. Baden moved to dismiss the action.
Furthermore, Baden submitted the counter-motion to oblige Württemberg to restore the water conditions of the Danube (and thus the inflow to the Aach) that existed before the construction of the hydropower plant and the sealing of the sinkholes in the area of the municipality of Fridingen. Württemberg requested that this countermotion be rejected.
Decision of the State Court
After a public session on June 17 and 18, 1927, the court made an interim decision obliging the state of Baden to remove the measures taken on its territory that contributed to the greater sinking of the Danube water. However, it was expressly not obliged to take any measures to counteract a natural sinking. The state of Württemberg, on the other hand, was obliged to remove the measures taken on its territory that led to a reduced sinking of the Danube water.
The court recognized the legal basis for the asserted claims in the generally recognized rules of international law (more on this below); With regard to the trade regulations and the Baden water law, the court found their unsuitability as a basis for claims.
The State Court of Justice did not make a final decision on the applications submitted, as further evidence was required. He expressly pointed out that, due to the controversial scientific assessments of the water conditions in the Danube, it was doubtful whether a court decision would really be suitable for finally settling the dispute. Rather, a complete settlement of the matter can only be expected from an amicable settlement of the parties to the dispute. Accordingly, he suggested that the parties enter into renewed negotiations on the basis of the interim decision.
Importance of the court decision
The significance of the decision of the State Court made at the time of the Weimar Republic under the validity of the Constitution of the German Reich of 1919 (“Weimar Constitution”, WRV) goes beyond the specific dispute; it has also become relevant again in the Federal Republic of Germany under the Basic Law (GG).
Significance for the German Empire under the Weimar Constitution
The State Court of Justice recognized that Art. 4 WRV, according to which the generally recognized rules of international law apply as binding components of German Reich law, not only with regard to the relationship of the German Reich to non-German states, but also with regard to the intra-federalist relationship of the Member states of the German Reich among themselves (here between the disputed states Baden, Württemberg and Prussia) apply insofar as they act as independent states (i.e. in the area of water law, since this area of law fell within the legislative competence of the states). Such a recourse to the generally recognized rules of international law in the relationship between the states would only be considered subsidiary , unless it is regulated by imperial law (imperial constitution and imperial laws) - which was the case in the present dispute.
- Article 4 WRV: The generally recognized rules of international law are binding components of German imperial law.
These findings of the Court of Justice, on which the court then built upon the decision of the specific dispute, were of a fundamental nature and, beyond the specific legal dispute, concerned the legal understanding of the federalist conditions within the federal state of the German Reich. The findings were of great importance because there was no generally valid understanding of the state at that time and they contributed to the clarification of the position of the "federal state" between a unitary state on the one hand and a confederation of states on the other. It is true that the Court of Justice had already ruled two years earlier in a dispute between the states of Bremen and Prussia about the validity of a state treaty that, in the absence of provisions in the Weimar constitution, the clausula rebus sic stantibus , which is also known in international law, should also be applied in the relationship between the member states of the German Reich was, but his remarks on this were only brief and not based on concrete constitutional norms, but based on comparative law .
With regard to the specific legal dispute, the Court further stated that the rule of international law applicable to the states in the international community, according to which there is an obligation to respect and consider one another, also applies to the federal community of the German states as members of the German Reich applies, which is a closer community than the general international community. Accordingly, one could demand from every German country that it takes into account the rights and interests of the nationals of another country - if not necessarily to the same extent as for its own nationals, then to a greater extent than for nationals of non-German states. Furthermore, the Court referred to the generally recognized rule of international law, according to which no state may significantly impair another state in the exploitation of a watercourse made possible by nature. In principle, impairments in this sense could only be human interventions in natural conditions; On the other hand, this could in principle not result in claims for first-time interventions in nature. As an exception, however, the court recognized that a state must not refrain from or prevent such interventions in nature that are customary and necessary in water management for cultivation. The objected interventions in the natural conditions of the water conditions of the Danube are unlawful impairments and should therefore be stopped; Failure to maintain the waters of the Danube or prevent it from being maintained is also illegal and must therefore be guaranteed.
In an interim decision made the following year in a legal dispute between the state of Bremen on the one hand and the states of Prussia, Thuringia and Braunschweig on the other about the qualitative impairment of the Weser water through wastewater from the potash industry, the State Court relied on the reasons for the decision set out in the interim decision in the case of the sinking of the Danube, according to which the generally recognized rules of international law also apply subsidiary to the relationship between the German states.
Significance for the Federal Republic of Germany under the Basic Law
Like the German Empire under the Weimar Constitution, the Federal Republic of Germany is also organized as a federal state under the Basic Law. The Basic Law also contains Article 25, a regulation comparable to Article 4 WRV:
- Article 25 GG: The general rules of international law are part of federal law. You take precedence over the law [...].
In 1951, the first year of its existence, the Federal Constitutional Court had to rule on a federal-state dispute concerning the reorganization of the states of Baden , Württemberg-Baden and Württemberg-Hohenzollern ( BVerfGE 1, 14). In connection with the interim decision of the State Court of 1927, the court found that a general rule of international law within the meaning of Art. 25 GG could only apply within the federal state in the (equal) relationship between the states, but not in the (super- Subordination) relationship between the federal government and the states - which is always affected by reorganizations.
In 1972/73 the Federal Constitutional Court negotiated and ruled on the existence or non-existence of a contractual obligation from a state treaty concluded in 1920 between the Free State of Bavaria and the Free State of Coburg on the incorporation of Coburg (BVerfGE 34, 216). The rights of the lost state of Coburg asserted the cities of Coburg and Neustadt as representatives of the population of the lost state; the dispute was qualified as a country dispute. The decisive factor in the dispute was whether the state of Bavaria was exempted from the contested contractual obligation due to the clausula rebus sic stantibus . Following on from its decision of 1951, the court found that the relationship between the states in the federal state was now completely regulated by federal constitutional law - namely through express regulations in the Basic Law and, subsidiary to that, through the unwritten constitutional principle of pro-federal behavior - so that in the relationship between the states for an application of the general rules of international law is no longer a room. In the early years of its existence, the Federal Constitutional Court itself developed the principle of federal-friendly behavior, which applies not only to the relationship between the federal states but also to the relationship between the federal government and the federal states, as a concretization of the state structure principle of federal statehood ( Art. 20 (1) GG) ( BVerfGE 1, 299; BVerfGE 4, 115). In the specific case, the court then derived the clausula rebus sic stantibus from the principle of federally friendly behavior and ultimately came to the conclusion that the disputed state contractual obligation no longer existed.
The subsidiary applicability of the general rules of international law in the Federal Republic of Germany thus continues to exist, but no longer has any practical effect on the relationship between the Länder, since the regulatory loophole once identified in this area of law was filled by the unwritten principle of federal constitutional behavior.
Interim significance for the relationship between the Federal Republic of Germany and the German Democratic Republic
Nevertheless, the considerations of the State Court from the case of the sinking of the Danube became relevant again a few months later: In 1973 the Federal Constitutional Court decided in the proceedings of an abstract norm review initiated by Bavaria on the Act of Approval to the Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic (BVerfGE 36 , 1). Against the background of the legal position of the German Reich after 1945 , in relation to which the Federal Republic of Germany assumed the continued existence of the German Reich, the Federal Constitutional Court saw the treaty as a bilateral treaty between the two German states to which the rules of international law would apply, which, however, is also being concluded between two states that are both part of the still existing, albeit incapable of acting, because the all-German state has not yet been reorganized . The treaty thus has a dual character as a treaty under international law on the one hand and as a treaty regulating inter-se relationships between the two German states on the other. The Federal Constitutional Court pointed out that the lack of a constitutional order of the state as a whole necessitated a regulation as in the present case through the special treaty with dual character; It also referred to the interim decision of the State Court in the case of the sinking of the Danube, according to which, in the absence of a constitutional regulation for the entire state, even in a federal state, relations between the member states are based on the rules of international law. In the specific case, the court was ultimately able to interpret the contract in accordance with the Basic Law.
With the accession of the East German federal states to the Federal Republic of Germany, this area of application also ceased.