Lübeck Bay Fall

Untertrave and Bay of Lübeck

The Lübeck Bay case is a legal dispute between the states of Lübeck and Mecklenburg-Schwerin over sovereign rights in the Bay of Lübeck, which was fought before the State Court for the German Reich in the 1920s .

background

There was a dispute between the parties as to who has sovereign rights over the part of the Bay of Lübeck located in front of the mouth of the Trave (including the Travemünder Roadstead ) and thus can regulate fishing and shipping. For centuries, there had been disputes between Lübeck and Mecklenburg over sovereign rights in the Untertrave, the Pötenitzer Wiek and the Dassower See , which had led to proceedings before the Reich Chamber of Commerce and in 1890 to arbitration proceedings before the Reich Court . The legal dispute before the State Court of Justice concerning the Bay of Lübeck was initiated in 1925 by the State of Lübeck, which at the same time applied for a provisional settlement by means of an injunction. After the state of Lübeck became aware of the Mecklenburg-Schwerin Police Ordinance for the Protection of Fishing in the Coastal Waters of the Travemünder Bay on February 23, according to which only independent Mecklenburg fishermen should be allowed to fish on the Mecklenburg coast there his requests to determine the invalidity of this ordinance insofar as it violates the rights of the Lübeck state and its members.

Interim disposal

In accordance with Lübeck's application, the State Court of Justice issued an interim injunction in October 1925 in favor of the State of Lübeck, according to which the State of Mecklenburg-Schwerin would exercise its fishing sovereignty and the shipping police in the Bay of Travemünde as far as the Gömnitzer line from northwest to southeast until the decision was made Tower –Pohnsdorfer Mühle – stone reef barrel – mouth of the Harkenbeck is prohibited and the exercise of these rights in the designated area was granted to the state of Lübeck alone.

Main proceedings

The public hearing on the main issue took place on July 6 and 7, 1928. Various reports had been drawn up in advance, which the parties brought into the proceedings. The historian Fritz Rörig was Lübeck's expert ; Mecklenburg-Schwerin submitted reports from the Schwerin archive, the lawyer Julius von Gierke and the retired lawyer and state minister Adolf Langfeld .

The State Court examined what the parties' claims for territorial and fisheries sovereignty in the area in question might be based on. The view taken by Mecklenburg-Schwerin and its experts that, according to generally recognized principles of international law, the border between the states runs on the center line drawn from the bank boundaries in sea bays with several neighboring bays, the Court rejected, pointing out that such a line is general accepted rule of international law either from international treaty law , nor of customary international law or otherwise apparent and thus does not exist. Rather, the historical development and the actual circumstances should be taken into account. Similarly, the Court found that the city of Lubeck in 1188 by I. Kaiser Friedrich awarded and in 1226 by Emperor Frederick II. Confirmed privilege does not constitute a sufficient basis for the requests of Lübeck.

Fishing sovereignty and shipping sovereignty

However, due to this privilege, Lübeck assigned itself the right to fish in the disputed part of the Lübeck Bay at an early stage. With a view to the development of fishing in the bay, the court saw as proven that Lübeck had been in the “undisturbed possession of fishing sovereignty” for centuries in the parts of the bay in question. This immemorial acquis gives rise to the presumption of legality and justifies establishing Lübeck's fishing sovereignty in the area in question in the future as well. With regard to shipping sovereignty, too, the Court found that Lübeck had been in their possession in the area in question since time immemorial, and it determined that Lübeck would continue to have shipping sovereignty.

The court did not consider the seaward border of the fishing and shipping territories of Lübeck to be clearly ascertainable. To determine these limits, the court based considerations of expediency as a basis: On the one hand, in order to avoid conflicts of interest, the limit of fishing sovereignty must coincide with the limit of shipping sovereignty; In addition, the borderline must also be appropriate for shipping. The court then decided in favor of the border course mentioned in Lübeck's application, namely the line between the Harkenbeck estuary in the southeast and the Gömnitzer Tower in the northwest as the border to the northeast and that of the Brodten border post as the border to the northwest - this marked the border between the states of Oldenburg and Germany Lübeck - Lot fell on the aforementioned line.

Fishing rights to be granted to fishermen

The court determined that both Lübeck had to grant the Mecklenburg fishermen the traditional right to fish in the part of the bay in which it had fishing sovereignty, and that Mecklenburg-Schwerin had to grant Lübeck fishermen in its coastal section between the Harkenbeck estuary and Tarnewitz according to Art. 110 Paragraph 2 of the WRV had to grant fishing activities under the same conditions as Mecklenburg fishermen.

Territorial sovereignty by the way

Furthermore, the court found that Mecklenburg-Schwerin had also claimed territorial sovereignty for some time in front of its stretch of beach from Priwall to the Harkenbeck estuary and that Lübeck was aware of it; Lübeck therefore never exercised or claimed full territorial sovereignty up to the Mecklenburg beach and accordingly could not have full territorial sovereignty in the area as an immemorial possession. Regardless of the boundaries of the fishing and shipping sovereignty area of Lübeck, another border should be drawn in order to safeguard the interests of the parties to the dispute, the western part of the bay of which falls under the sovereignty of Lübeck and the eastern part of the bay of the Mecklenburg-Schwerin sovereignty. In the absence of such a border being clearly identifiable from the documents submitted, the court again based considerations of expediency as a basis and determined a line running from the customs house (Wachtgraben on the Priwall) in a northerly direction to the shipping route and from there eastwards along the extension of the shipping route to the sea.

The Court rejected the further motions.

Importance of court decisions

The decisions made by the State Court of Justice were significant beyond the specific dispute.

Interim disposal

The significance of the issuance of the preliminary injunction of 1925, which went beyond the specific legal dispute, concerned constitutional procedural law: Although the law on the State Court of Justice according to Art. 108 WRV did not contain an express authorization to issue temporary injunctions, the Court of Justice concluded from its authorization to issue enforceable judgments ( Art. 19 para. 2 WRV) a maiore ad minus that he is also authorized to issue injunctions. The prerequisites for these would result from an analogous application of the rules of civil procedure . With this justification it became clear that the State Court of Justice saw itself as authorized to grant temporary legal protection not only in the present, but in potentially all of its proceedings .

In contrast to then, for proceedings before the Federal Constitutional Court in Section 32 and additionally in Sections 53 and 93d BVerfGG, an express authorization to issue temporary orders was included and the requirements for this were also standardized.

Main decision

Lübeck fishermen in front of the GDR border fortifications on the Priwall (1970)

With the main decision of 1928, the last remaining territorial disputes between Lübeck and Mecklenburg were settled. The boundaries established by the Court on the basis of historical developments and otherwise determined after considerations of expediency still exist today: The territorial border between Lübeck and Mecklenburg was part of the inner-German border between 1945 and 1990 and is now the state border between Schleswig-Holstein and Mecklenburg-Western Pomerania ; the boundaries for the fishing and shipping sovereignty area of Lübeck are still today the boundaries of the area within which the city of Lübeck has fishing rights. The discrepancy between territorial sovereignty on the one hand and fishing and shipping sovereignty on the other led to tensions with the GDR during the time of the division of Germany, which were only resolved in 1974 through a protocol note on the border and a government agreement on fishing rights.

The main decision in favor of German inter- federal law (also known as inter-federation law or inter-federal law ) was significant beyond the scope of the dispute . It is true that with the immemorial acquis as the main reason for the decision, it was not the first time that the German Reichsgericht recognized the acquisition title of the (immemorial) presidency in inter-state law, but it was the first time that the State Court used it.

Reference

RGZ 122, appendix pp. 1 to 16 = ZVLGA 25 (1929), pp. 155 to 198.

literature

(Reviews and articles in chronological order)

Fritz Rörig : sovereignty and fishing rights in the Bay of Lübeck, in particular on the Travemünder roadstead and in the Niendorfer Wiek. In: Journal of the Association for Lübeck History and Archeology . Vol. 22, 1925, pp. 1-64.
Fritz Rörig: Mecklenburg coastal waters and Travemünder roadstead. Legal and economic history report. In: Journal of the Association for Lübeck History and Archeology. Vol. 22, 1925, pp. 215-323.
Julius von Gierke : The sovereignty and fishing rights in the Travemünde Bay. Legal opinion. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 90, 1926, pp. 25-112, ( digitized version ).
Adolf Langfeld : Beyond the borders of the sovereignty of Mecklenburg-Schwerin and Lübeck in the Lübeck Bay. Legal opinion. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 90, 1926, pp. 1-14, ( digitized ).
Adolf Langfeld: Beyond the borders of sovereignty in the Travemuende Bay. Second opinion. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 90, 1926, pp. 15-24, ( digitized version ).
Werner Strecker : The former coastal waters (beach) and the legal situation in the Travemuende Bay. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 89, 1925, pp. 1-228, ( digitized version ).
Max Wenzel : The sovereign rights in the Bay of Lübeck. A contribution to the law of the sea. Hinstorff, Rostock 1926.
Werner Strecker: The Travemünder roadstead, shipping location and shipping limit. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 90, 1926, pp. 113-186, ( digitized ).
Werner Strecker: The sovereign situation in the Travemünder Bucht. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 91, 1927, pp. 19-68, ( digitized version ).
Werner Strecker: The location of the Travemünde roadstead. In: Yearbook of the Association for Mecklenburg History and Archeology. Vol. 91, 1927, pp. 69-122, ( digitized ).
Werner Strecker: Final report on the situation of the Travemünder roadstead , in: Yearbook of the Association for Mecklenburg History and Antiquity, Vol. 92, 1928, pp. 173-200, ( digitized ).
Fritz Rörig: Again Mecklenburg coastal waters and Travemünder roadstead. The first report by the Minister of State i. R. Dr. Langfeld of February 5, 1925 and pp. 1-86 of the printed report of the Schwerin archive. In: Journal of the Association for Lübeck History and Archeology. Vol. 24, 1928, pp. 1-33.
Fritz Rörig: Again Mecklenburg coastal waters and Travemünder roadstead. The complete second archive report, which v. Gierke's legal opinion and the second Langfeld's opinion. Vol. 24, 1928, pp. 47-152.
Fritz Rörig: Again Mecklenburg coastal waters and Travemünder roadstead. The final solution to the shipping problem. Vol. 25, 1929, pp. 1-103.
Fritz Rörig: Again Mecklenburg coastal waters and Travemünder roadstead. Exercise and delimitation of state rights on the Priwall – Harkenbeck riverside stretch in old and new times. Vol. 25, 1929, pp. 105-154.

Web links

Lübeck Bay Fall (PDF, 392 kB)

Individual evidence

^ Decision of the IV Civil Senate of the Reichsgericht as arbitration court of June 21, 1890 in the dispute between Mecklenburg-Schwerin (applicant) and Mecklenburg-Strelitz (acceded) on the one hand and the Free and Hanseatic City of Lübeck (opponent) on the other, ZVLGA 6 (1891), Pp. 243 to 326.

^ Decision of the StGH of October 10, 1925 in the dispute between the state of Lübeck (applicant) and the state of Mecklenburg-Schwerin (opponent), RGZ 111, appendix p. 21 f. = ZVLGA 24 (1928), pp. 34 to 46.

↑ See § 1 of the statutes on the exercise of fishing rights of the Hanseatic City of Lübeck from June 28, 2007 ( Memento of the original from July 9, 2011 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2

^ Clear limit , Die Zeit, July 5, 1974, accessed November 16, 2014

[1] Decision of the IV Civil Senate of the Reichsgericht as arbitration court of June 21, 1890 in the dispute between Mecklenburg-Schwerin (applicant) and Mecklenburg-Strelitz (acceded) on the one hand and the Free and Hanseatic City of Lübeck (opponent) on the other, ZVLGA 6 (1891), Pp. 243 to 326.

[2] Decision of the StGH of October 10, 1925 in the dispute between the state of Lübeck (applicant) and the state of Mecklenburg-Schwerin (opponent), RGZ 111, appendix p. 21 f. = ZVLGA 24 (1928), pp. 34 to 46.