A New World of Nation-States and the Legacies of Empire

German-German clashes over legal sovereignty unfolded against the backdrop of postwar shifts toward frameworks of global governance rooted in languages of equality. While colonial rule put such a scholarly and political shift into sharp relief after 1945, American Cold War politics gave rise to political realism and decisively shaped debates on the politics of sovereignty in Western countries. In 1948, Hans J. Morgenthau formulated a seemingly simple truth in the pages of the Columbia Law Review. A leading proponent of the realist project, he stated that “sovereignty over the same territory cannot reside simultaneously in two different authorities, that is, sovereignty is indivisible.”Footnote ¹¹ Shortly after the end of the Second World War, Morgenthau articulated an opinion that was universally accepted among Western experts of international law. Since the turn of the twentieth century, Lassa Oppenheim and others had argued that state sovereignty was essential for the recognition by other sovereign states and membership in the “family of nations.” At the time, however, this family still included only “civilized nations” and excluded colonial peoples. While Western legal scholars fought over the relationship between the sovereignty of the state and the institutions that exercised power within a state, the level of sovereignty of federal states within a country, and the division of sovereign powers between the executive and legislative, the idea that sovereignty in the international sphere was indivisible had remained uncontested in Western legal thought.Footnote ¹²

Despite anti-colonial challenges to Western views that refused to grant full sovereignty to colonial peoples, this hegemonic opinion among Western international law scholars was not altered until the end of the Second World War.Footnote ¹³ The state, not people, remained firmly established as the central object of legal international sovereignty and subject of international law.Footnote ¹⁴ In the same year, in which Morgenthau reaffirmed the idea of indivisible international sovereignty over territory, Leo Gross set this notion in stone for the nascent academic discipline of international relations, which was on the rise in a period of academic enthusiasm for globalism after the end of the Second World War.Footnote ¹⁵ Commemorating the 300th anniversary of the Peace of Westphalia, Gross's reading of the implications rather than the actual terms of the peace settlement of the Thirty Years War in 1648 promoted nation-state sovereignty and sovereign equality as the new central criteria in the organization of international affairs.Footnote ¹⁶ Such notions papered over the realities of empire in elevating a universal “ideology of sovereignty” and grounded this new framework in the myth of a centuries-old Westphalian state system shaped by sovereignty, territoriality, equality between states, and non-intervention. However, this reading of the evolution of the international state system was better at encapsulating hopes for the future than giving an accurate account of the historical development of sovereignty.Footnote ¹⁷ It was an endorsement of nation-state sovereignty as the new universal standard on which future international politics should rest. Yet, international politics looked still rather different in 1948 than such endorsements of sovereign equality suggested.

German division one year later in 1949, the divisions of China and Korea, as well as the partition of former colonies that accompanied their independence complicated such theories of indivisible sovereignty rooted in ideas of nationality until the mid-1950s. In the hegemonic logics of Western international law and international relations theory of the early decades after the Second World War, only one government should represent one nationality. This divergence between the theory and reality of sovereignty triggered an intense politicization of sovereignty as part of the Cold War between the two German states that first fiercely competed over the question as to which state legitimately represented German sovereignty.Footnote ¹⁸ This conflict affected broader international law debates on the nature of sovereignty once the GDR leadership decided to break away from German legal tradition and began to advocate for an independent East German sovereignty.Footnote ¹⁹ The “division” of countries after 1945 clashed with the underlying principles that structured UN membership politics. The UN mantra of “one nation, one seat” quickly brought to light divergences in what James S. Sheehan has called the “relationship between the abstract and the concrete” in sovereign theory and sovereign practice.Footnote ²⁰ At the same time, it foreshadowed a crisis in notions of territoriality and sovereignty established through “the control of bordered political space” as “the framework for national and ethnic identity.”Footnote ²¹

Universal Standards and Unequal Realities

The utopia of the United Nations as a new political space that would create equality among states in international governance was tainted from the beginning by the supreme powers of the UN Security Council and attempts by colonial powers to perpetuate empire into the postwar era.Footnote ²² Contemporaries first saw the issue of “population exchanges” in Europe, Palestine, and India as part of a peace settlement at the end of the Second World War as connected issues under the label of “partitions” that ought to secure peace. Yet, the acceleration of ideological conflicts between the wartime Allies after 1945 quickly prompted political observers and legal scholars to discuss the issue of German sovereignty and conflicts at the Cold War frontlines in Asia in a language of “division.”Footnote ²³ The direct involvement of the United Nations into the Korean War made “Korean division” after the armistice of 1953 a hot button issue within the UN General Assembly. With the end of the Korean War, three “divided countries” had emerged along the Iron and Bamboo Curtains: Germany, China, and Korea.

While international organizations retreated from the PRC and the United Nations did not play a direct role in the reconstruction of Germany, the United States backed both the FRG and ROC's entry into international organizations after the escalation of Cold War conflicts. To bolster the ROC's position, not just in the United Nations—where the ROC took up a Security Council seat and General Assembly representation—but also its associated organizations, American support facilitated the ROC's entry into UNESCO in July 1950. Vocal opposition of the Hungarian, Czechoslovakian, and Indian representatives could not prevent this American-backed success within UNESCO's Credentials Committee and General Conference.Footnote ²⁴ Until 1952, the FRG gained entry to the Food and Agricultural Organization and was awarded official UN observer status. The direct US-Soviet standoff in divided Germany did not permit full West German membership, but the FRG's official accreditation as an observer state representing “Germany” barred the GDR from UN politics in the “one nation, one seat” logics of mid-century UN membership and international representation.

With the exclusion of the PRC and GDR from UN affairs, the Beijing and East Berlin government started to explore different ways of pushing their way into international affairs. While GDR diplomats and representatives—sometimes in-person—demanded entrance to UN meetings in Geneva and New York in the 1950s and 60s, the PRC Ministry for Foreign Affairs turned down an offer by the Czechoslovakian government to put forward a motion that demanded that representatives of the Chinese Communist Party (CCP) should be allowed to participate as observers at UNESCO's Ninth General Conference in New Delhi. The CCP leadership refused to participate in events that included ROC representatives.Footnote ²⁵ In this refusal, the Beijing government decided on a similar non-recognition policy of the ROC to the one that the FRG pursued toward the GDR.Footnote ²⁶ In its drive for UN membership, the CCP leadership decided to promote a language of peace in the tradition of early Cold War socialist peace appeals and joined such third world calls for nuclear disarmament as the Final Communique of the Bandung Conference, hoping that this activism would garner international recognition.Footnote ²⁷ The notion of new universalist international organizations thus had cracks from the very beginning. When the UNESCO leadership decided to embark on the writing of a new universal world history to promote a focus on trade, travel, cultural exchange, migration, exchange of ideas, and a strong disavowal of Eurocentrism, Julian Huxley, who served as the first UNESCO director at the time, lamented “our pretended universality” in 1953.Footnote ²⁸ The clashes of the early Cold War prevented universal representation of all independent states that both organizations had promised in their foundational manifestos.

In the legal world, this bias toward Western dominance continued both inside and outside the United Nations. In the immediate postwar years, the evolving East German state focused on revolutionary language leading up to the official announcement of building socialism in 1952 instead of concepts of sovereignty. In the meantime, West German legal and political elites—aided by American dominance in the United Nations and other international bodies—shaped interpretations of Germany's postwar status in the international arena. Legal experts within the Bonn government worked together with leading law scholars such as Rudolf Laun, Adolf Arndt, and Ulrich Scheuner. They framed German national division in a legal language that denied East German statehood entirely. Their central argument stipulated that a unified legal sovereignty of the German Reich “in its borders of 1937” (i.e., before Nazi territorial expansionism began) had survived the unconditional surrender of May 1945.Footnote ²⁹ The founding of a West German government and state was seen as a “provisional reorganization” of this German sovereignty of the Reich in the territory of the three Western occupation zones. In other words, the legal core understanding of the West German state rested on the assumption that German sovereignty was in fact not divided, but only obstructed by Soviet force through the continued occupation of their zone of occupation. In 1971, Menzel would call this the essential part of the “double sovereignty” of the Federal Republic that had to be defended. He had been among the international law experts who had propagated this assumption since the declaration made by West German international law scholars when they convened for their first meeting after the war in Hamburg in 1947 to reconstitute their professional association. This statement became a point of self-reference in the work of Menzel and others in the decades until the 1970s to prove the doctrinal character of the assumption that the sovereignty of the “German Reich in its borders of 1937” still existed as the “roof sovereignty” above the West German state's sovereignty.Footnote ³⁰

This West German agenda of enshrining a continued existence of unified German sovereignty within international politics instrumentalized legal understandings governing the foundation of the United Nations. The principle of “one nation, one seat” linked nationality to territoriality represented by a single government. The West German government profited from shared interests with the ROC's government. Chiang Kai-shek's government in Taiwan, now a member of the Security Council, endorsed a “one China” paradigm alongside West German calls for a “one Germany” framework under international law.Footnote ³¹ As long as both countries remained in the same Cold War camp and Western powers retained their dominance in framing international legal standards at the United Nations, so politicians in Bonn and Taipei thought, their hold on the international representation of China and Germany should remain firm. Yet, once the PRC acquired atomic weapons in 1964 and decolonized states began to turn the tide on Western voting majorities within the United Nations, West German and Taiwanese hegemony over defining German and Chinese sovereignty in international affairs would slowly crumble.

Decolonization and Divided Countries at the United Nations

The PRC made inroads into UN politics from the early 1960s. The growing number of decolonized countries that acceded to UN membership transformed rights debates in the corridors of the UN headquarters in New York and Geneva.Footnote ³² The PRC jockeyed for third world support for its claim on Chinese sovereignty by completely denying Taiwan's independent status—which followed the same logic as the FRG's so-called Hallstein Doctrine, which underpinned the complete diplomatic non-recognition of the GDR—and attacked the Soviet Union's leadership of socialist countries after the Sino-Soviet split. After a long retreat from all-German frameworks during the 1950s, the GDR government at the same time surrendered in the competition for legitimate representation of German sovereignty. Weakened by the 1953 uprising, the East Berlin leadership moved on to new legal semantics of national division. This remained a clandestine project until the building of the Berlin Wall in 1961.Footnote ³³ Until the mid-1960s, the GDR government had difficulties finding a message that would garner support outside of the socialist bloc for its legal vision of a divided country. Only by rallying enough international support behind an East German interpretation of national division, GDR international law experts such as Peter Alfons Steiniger determined, could the West German position on German sovereignty be attacked. At the start of the 1960s, conflicts surrounding decolonization suddenly seemed to present the East German government with an answer. The only coalition that was able to defeat the Western camp within the United Nations was a socialist alliance with the countries of the global south. East German party leaders and legal scholars now appealed to newly independent states to support East German independence in their own language of decolonization based on the right of self-determination of peoples.Footnote ³⁴

The ensuing UN conflicts over divided countries galvanized ideological tensions over legal principles of sovereignty and self-determination. The Indian government had been the first prime advocate of PRC membership. After the Bandung Conference in 1955, during which non-aligned states had outlined principles for an alternative framework of global governance, the Indian UN delegation submitted annual requests to the General Assembly demanding that the question of Chinese representation should be officially debated. The General Assembly evaded the issue twice before the Indian request finally led to a first discussion on September 19, 1958. The US delegation immediately pushed for a rejection of the Indian proposal with the support of Australia, Ecuador, El Salvador, the United Kingdom, and the ROC. Ceylon, Czechoslovakia, Indonesia, Nepal, Panama, and the Soviet Union in turn supported the inclusion of the Chinese question on the list of issues officially debated by the General Assembly. Although the United States ultimately prevailed, the Western alliance had to fend off several amendments and additional resolution drafts. The Irish and Swedish delegations voiced veiled criticism of the US position of complete non-recognition, revealing the first cracks in the Western alliance. An official discussion of the Chinese issue would by no means represent a victory for communism, the Swedish argued, but rather stand for a vital principle of the democratic tradition: free debate.Footnote ³⁵

Disagreement over the question of Chinese representation reflected on the Security Council debate on Korea and Vietnam in December of the same year. On December 9, 1958, the United States, together with France, the United Kingdom, and Japan, requested the consideration of the Republic of Korea (ROK) and Vietnam for membership.Footnote ³⁶ In the politicking that took place in the corridors of UN headquarters, the Soviet delegation argued that only simultaneously admitting both parts of Korea would accelerate the process of unification. When it came to Vietnam, the Soviet representative pointed out, a one-sided admission of South Vietnam was unacceptable. Such an elevation in status would only encourage the South Vietnamese government to ignore the Geneva agreement on the unification of the country. Against these Soviet claims, the US-led coalition asserted that the establishment of South Korea under UN auspices would already give the Seoul government a special claim to membership over North Korea. In retaliation, the Soviet vote prevented the admission of any new members.Footnote ³⁷ The Cold War stalemate prevailed once more.

Decolonization began to threaten Western dominance over UN politics with the admission of a sizeable number of newly independent countries in 1960. This enlargement of the number of member states led to institutional maneuvering on the issue of national division. The United States could no longer prevent the issue from being officially discussed on the floor of the assembly. On behalf of the United States, New Zealand submitted a resolution to declare the China issue an “important question” in 1961. To raise the bar on allowing the issue to move forward, the United States, together with Australia, Colombia, Italy, and Japan, managed to establish that a two-thirds majority was necessary to even begin discussion of such important questions regarding “whenever more than one authority claims to be the government entitled to represent a Member State in the United Nations.” Moreover, the resolution argued such debates should be conducted on a case-by-case basis. The delegation from Ghana voiced concerns that the US-led draft insinuated that after every change in government within a state a two-thirds majority was necessary to readmit a country. Such a position directly reflected on the unstable situation in Africa amiddecolonization and threatened the international recognition of independence from colonial rule. Other delegations made the point that the question of PRC representation had to be divorced from the issue what would happen to the ROC.Footnote ³⁸ At a time when West German politicians still avoided calling on the United Nations even to protest the building of the Berlin Wall for fear of elevating the issue of East German sovereignty, Chinese representation moved to have a special status in the debate on the sovereignty of divided countries.

In May 1962, almost a year after German division had been cemented by the Berlin Wall, the West German ambassador stationed in Colombo cabled Bonn. He reported that the contender for the next presidency of the General Assembly and official observer for Ceylon at the United Nations in New York, Gunapala Malalasekera, had attacked the West German legal interpretation of German division in statements to the press. Malalasekera had recently been elected chairman of the sixteen-member Committee of the United Nations for Information from Non-Self-Governing Territories. In this capacity, the prolific UN diplomat suggested a de facto official acknowledgment of divided nations. He included the divided Germany and Berlin on his list of divided countries alongside South Vietnam and Laos. Malalasekera endorsed the argument that only official UN recognition of all independent states and territories could lead to unification. The West German ambassador pointed out to Malalasekera previous diplomatic posts in Moscow where he established relations between Ceylon and the PRC, Czechoslovakia, and Yugoslavia, as well as his diplomatic stations in Warsaw, Budapest, and Bucharest. These close ties to the socialist bloc, the report insinuated, marked him as a supporter of the GDR's attempt to reach international recognition as a sovereign state “through the backdoor” at the United Nations.Footnote ³⁹

Malalasekera's statement posed a grave threat to West German legal and political frameworks of national division. Decolonization put the recognition of the right of national self-determination and sovereignty of former colonies at the core of UN debates. It was no coincidence that a UN observer from the global south with close ties to socialist states included the divided Germany and Berlin under Allied control on his list of “non-represented territories.” The GDR government had started to engage in anti-apartheid activism at home and through political declarations to the international community in 1960. Apartheid became the vehicle for the GDR leadership to link its own claim to sovereignty to third world legal arguments concerning a right of self-determination, territorial integrity, and international recognition. This new type of legalist language, the GDR leadership hoped, would break West German dominance in describing German sovereignty in international law politics.

It was in this context that Malalasekera intervened in German Cold War debates. The East German leadership fashioned the GDR in third world logics as “non-represented territories” and equated the East German situation with the position of decolonized, yet still internationally non-recognized countries.Footnote ⁴⁰ This shift in legal language, however, went deeper than a mere shift in semantics. The GDR leadership tasked its legal and foreign policy experts with designing a comprehensive counter-model to traditional German ideas of sovereignty rooted in the idea of the German nation and Volk. Ethnicity—or in UN terminology “nationality”—had provided legitimacy for claims to unifying Germans in a nation-state since the early nineteenth century. Against this tradition of legal thought, the East Berlin government now put an “East German people” at the heart of its bid for international recognition.Footnote ⁴¹ Although the GDR government still had to adhere to the notion of representing a people in international affairs, the East Berlin government shifted away from concepts of citizenship based in ethnicity and replaced them with a socialist citizenship of “GDR citizens” at home.Footnote ⁴² The legitimacy of the East German state and its claim to sovereignty was now grounded in the anti-fascist and anti-racist nature of socialist society and its citizenry rather than ethnicity.Footnote ⁴³

The shifting geopolitical interests of key allies aggravated the threat to West Germany's sovereignty doctrine. On January 27, 1964, Ellinor von Puttkamer alerted her Federal Foreign Office superiors to recent events in the General Assembly in a confidential memorandum compiled for the United Nations. In charge of monitoring UN politics and international organizations, von Puttkamer had closely followed a recent major turnaround in French Cold War politics. The French government had opened official diplomatic relations with the CCP government under chairman Mao Zedong in Beijing. Von Puttkamer sensed a mounting danger that key allies of the Bonn government, among them the French, US, and potentially also the British government, were moving toward viewing Cold War politics in new ways that could transform “German division” into “German partition.” Nowhere was this danger more acute than in UN politics. Puttkamer outlined the potential for a seismic shift in international politics that would put the West German government on the defensive. Although “there exist no formal legal parallels between the relationship of the Federal Republic and the SBZ [Soviet Occupation Zone] on the one hand, and Formosa and Mainland China on the other,” von Puttkamer argued in the West German Cold War rhetoric of the era, “this doesn't change the fact that surprisingly many governments make precisely this comparison and measure the problem of divided Germany with the same parameters as the China Question.”Footnote ⁴⁴ The French had made it official that they could live with two officially acknowledged Chinese states. Were both Chinese states ever to ascend to UN membership, it would be almost untenable to speak of German division instead of two independent states. It was pivotal, von Puttkamer argued, that the Bonn government push for the representation of only one Chinese state within the United Nations. Otherwise, West German claims to representing German sovereignty in its entirety would evaporate.

The incoming head of the West German observer delegation at the United Nations, Sigismund von Braun, immediately requested a meeting with the UN legal department. UN legal counsel Konstantinos Stavropoulos confirmed that the UN bureaucracy saw the French move to recognize the PRC as a breakdown of a united Western position.Footnote ⁴⁵ Yet, the UN legal team had not identified any movement of “Franco-Africans” to adjust the position of newly independent former French colonies in the China question. Stavropoulos nonetheless saw the writing on the wall. He confided in von Braun that he thought the US strategy of simply increasing the voting barrier to discuss the issue of Chinese representation in the General Assembly was misguided. The “two-China” paradigm gained ground in delegation offices around UN headquarters. Stavropoulos saw the US strategy as wasting precious time in securing continued membership for the ROC as long as the US delegation still held a dominant position within the United Nations. As long as the Soviet Union only reluctantly peddled the PRC's position, but had no real interest in sharing the “vanguard position among the suppressed peoples” within the United Nations after the Sino-Soviet split, the Western coalition should come to an agreement with Moscow that allowed membership for both Chinese states to solve the issue. Stavropoulos made clear that the law could only follow the politics because “a solid legal solution seemed unlikely, so the Gordian knot needs to be severed with the political sword.”Footnote ⁴⁶

Von Braun dreaded the UN legal counsel's ideas for constructing legal arguments that allowed for membership of both the ROC and PRC. A switch from the ROC to the PRC in Chinese representation seemed the most straightforward legal solution, but the least appealing result in political terms. Yet, if as Stavropoulos suggested, the United States and other Western states worked toward membership of both Chinas, a multitude of legal options would open up. Stavropoulos insisted that the case of Syrian membership could not serve as legal precedent after the United Arab Republic (UAR) collapsed in 1961. In his view, the Syrians could simply take up their formerly already existing membership again. As one of the leading UN legal experts, Stavropoulos saw a legal construction of both Chinese states as “successor states” of the UN foundational member “China” as the most promising option. The Security Council seat had to go to the PRC accounting for the country's military strength and territorial size, but both Chinese states could be seated in the General Assembly. Because there existed no precedent in UN legal procedures for divided countries and legal theory on sovereignty of divided countries was also nonexistent within international law, Stavropoulos thought that such a solution could still garner the support of the overwhelming majority of current UN members. This would give enough political cover for his legal interpretation.Footnote ⁴⁷

Von Braun immediately realized the danger for West German foreign policy and legal doctrine. He alerted the Federal Foreign Office and requested a new line of legal argumentation. “The theory of Chinese successor states is perilous for us as one can draw parallels from it to the Soviet argument that two German states have developed on the soil of the German Reich.”Footnote ⁴⁸ Since 1945, West German international law experts had ardently fought any suggestion of a discontinuation of German sovereignty to deny Soviet arguments that two German states had succeeded the German Reich after its demise in 1945.Footnote ⁴⁹ State succession seemed an obvious legal construction for Stavropoulos in a time of decolonization and the emergence of new states, but it was the least desirable precedent for West German diplomats and legal experts. The hegemony of West German legal thought on international sovereignty in the German-German Cold War confrontation was in serious peril.

West German diplomats swarmed out on fact-finding missions to gauge the impact of the issue of Chinese sovereignty and international representation on German division. The West German ambassador to France, Manfred Klaiber, met with his US counterpart, Cecil B. Lyon, in Paris to discuss the fallout of French diplomatic recognition of the PRC. Lyon reassured Klaiber after a meeting with Premier Pompidou that the French saw the question of divided countries purely politically. As long as Soviet troops were needed to prop up the GDR government, there could be no “reality” of the GDR as a sovereign state in the French view. Klaiber reported to Bonn that Lyon debunked distressing rumors that the French might accept the “reality” of “Pankow”—the East German government and state—as they did in the case of the PRC.Footnote ⁵⁰

The West Germans were not the only ones upset with the French government's shift in Cold War politics. The South Vietnamese government in Saigon sharply criticized the French recognition of the PRC, fearing for its own position against communist North Vietnam. When a French delegation visited for regular consultations, the West German representative at NATO in Paris, Alexander Böker, pressed the issue with his French counterpart, Étienne Manac’h. Given France's colonial history in Vietnam, Manac’h claimed, the French government had no plans to acknowledge North Vietnam or North Korea. Based on the Geneva Treaties of 1954, France planned to maintain economic and cultural links only with North Vietnam. French suggestions that Vietnam could be united as a neutral country raised the ghost of Stalin's offer to unite Germany under neutrality from 1952, which the West German government still viewed as a Soviet ruse to take over the whole of Germany. The West Germans impressed on their French guests that they should at least avoid any similar rhetoric in discussing divided countries and asked if they would support efforts to ensure that “neutral non-aligned countries would not establish relations to North Vietnam and North Korea. The similarity with the divided Germany could otherwise be obvious.”Footnote ⁵¹ To make the French position clear that the GDR was no sovereign state under international law, West German diplomats asked them to speak of “China and Formosa” instead of “two Chinas” to avoid parallels to the “wrong term of ‘two Germanys.’”Footnote ⁵²

Politics and historical developments now openly became guiding arguments to make a claim for differences in the legal nature of divided countries’ sovereignty. In March 1964, the West German UN observer delegation received new marching orders. In case the theory of two Chinese successor states should be brought into continued contact with the Soviet assertion of two German successor states, the Federal Foreign Office instructed the UN observer delegation, the diplomats should highlight historical differences between the two cases. The division of Germany occurred due to outside influence, and the “Pankow regime” remained a concealed Soviet occupation system. In contrast, Chinese division had developed out of internal transformations as an outcome of civil war. Foreign office diplomats concluded that a “division into a Chinese and Formosan state would be by far not as unnatural as a tearing apart of Germany, which is historically, culturally, and following the will of its population a much more tightly formed entity.”Footnote ⁵³ Moreover, geography and the separation of Taiwan and the PRC by the Taiwanese Strait made division more credible.

The ever-closer comparison of national divisions in Europe and Asia soon also concerned the NATO Council. In Beijing, the CCP leadership decided to accredit an official North Vietnamese ambassador. The West German NATO delegate Ulrich Sahm immediately demanded curbing the standing of this “doyen” (Doyenat).Footnote ⁵⁴ It had dawned on the West German government that “third party countries will watch our position toward North Vietnam and North Korea closely and draw comparisons between those territories and the SBZ.”Footnote ⁵⁵ The Federal Foreign Office now stepped up efforts to refute comparisons between North Vietnamese diplomats and East German attempts to establish more official diplomatic posts outside the socialist bloc at the time.Footnote ⁵⁶ But the NATO Council agreed that the alliance should avoid the public appearance of a NATO position on the issue of PRC UN membership. This would just open up NATO for propaganda attacks from Beijing and Moscow. The NATO legal counsel tried to calm West German concerns by arguing that diplomatic recognition of the PRC did not preclude support for UN membership. In the recent UN vote, the Netherlands, Israel, and Nigeria abstained from voting, and Rwanda voted against UN membership, although they all recognized the PRC's statehood.Footnote ⁵⁷ Yet, the growing importance of the PRC in international politics and changed priorities of key allies were hard to overlook.

The contradictions between legal concepts of sovereignty and international politics started to affect internal assessments within Western governments by the mid-1960s. While legal experts across Europe and the United States tried to alert diplomats to the dangers of shifting positions on the representation of divided countries’ sovereignty, they still believed in the powers of institutional rules within the United Nations to block changes. Meanwhile, Southeast Asia specialists confronted with “continuously expanding Red-Chinese influence” saw the matter differently.Footnote ⁵⁸ What enabled Western majorities to contain the PRC's influence was Beijing and Taipei's strict mutual non-recognition positions, which canceled each other out as long as the Western alliance could rein in enough African and Asian countries through economic and political pressure. Yet, the West German government came under ever-increasing pressure within the United Nations since Malalasekera's intervention in 1962. When West German–PRC talks on trade relations broke down in 1964, the PRC turned its back again on Bonn's position of “one Germany” and offered renewed support to the GDR government. Although West German diplomats hoped that “the setbacks China has suffered in Africa” could diminish support for the PRC within the United Nations, the East German government clearly thought otherwise.Footnote ⁵⁹

In 1966, Walter Ulbricht submitted the GDR's official application for UN membership. The application appealed to the trope of universality to legitimize UN membership. Since its founding, the promise of universal representation of all independent states within the organization had remained unfulfilled, as the GDR example showed. The East German government highlighted the sovereignty and self-determination of the GDR and its willingness to fulfill all obligations necessary to be a UN member.Footnote ⁶⁰ In contrast to the PRC, the GDR leadership argued that membership of both German states would aid eventual unification.Footnote ⁶¹ The Soviet Union used the ensuing debate over the application to make the point that the FRG could not represent the populations of both East and West Germany. In their response, the United States, United Kingdom, and France held the West German line and maintained that only the Bonn government could speak for the German people in international affairs. In contrast to their position on China, the three Allied powers maintained that recognition of the GDR's sovereignty could only hinder eventual unification, as agreed at the Geneva Conference on July 23, 1955 with the Soviet Union.Footnote ⁶² When it came to Germany, the attempts to establish the GDR as a separate state “could only frustrate the implementation of the principle of self-determination in Germany and thus make a peaceful settlement in Europe more difficult.”Footnote ⁶³

Von Braun now sounded the alarm bells in the hope that the Federal Foreign Office in Bonn was waking up to the pressure building at the United Nations.Footnote ⁶⁴ When the human rights covenants were opened for signature in 1966, the issue of universal representation of all states also moved forward.Footnote ⁶⁵ Albania, Algeria, Cambodia, Congo, Cuba, Guinea, Mali, Romania, and Syria tabled a renewed request to debate Chinese representation. For the first time, the principle of universality was put front and center in explaining why the PRC had to be recognized as a UN member. The PRC's position as a nuclear power also meant that major international issues in Asia could not be solved easily anymore without Maoist China. The United States assembled a group of countries in an attempt to reaffirm the notion that Chinese representation represented an “important question” but hoped to avoid further debate of the issue. Yet, the initial exchanges showed that the Western coalition and the ROC were no longer in a position to curb debates on the issue. The coalition around the United States and the ROC now built a new line of defense around a benchmark of a two-thirds majority within the General Assembly on all decisions taken in regard to the China question. A coalition consisting of Albania, Ceylon, France, Ghana, Nigeria, and the Soviet Union banished this move as a procedural maneuver aiming to postpone the inevitable.Footnote ⁶⁶ The non-representation of a quarter of the world's population, the opponents of the US resolution contended, dealt a serious blow to the UN's promise of universal representation. This would reduce UN authority and effectiveness. Within the UN Credentials Committee, a new battlefield was opened every year when the General Assembly was constituted. The Soviet delegation immediately moved to request that the committee remove the ROC representatives’ credentials because they would not lawfully represent China.Footnote ⁶⁷ Despite the tensions between the Soviet Union and the PRC since the Sino-Soviet split, the Soviet delegation continued to support the PRC's opposition of the “two China” paradigm even when open military hostilities broke out at the Sino-Soviet border in 1969.Footnote ⁶⁸

Western legal experts such as Arthur Larson now hinted at the danger of an expulsion of the ROC if no “package deal” could be agreed to in advance of seating the PRC. Larson had served at the US Information Agency and as President Dwight D. Eisenhower's executive speech writer before taking up a professorship at Duke University. If the ROC were to lose its seat, the government in Taipei would have to apply as a new member for renewed membership. Such a reapplication would be subject to the Soviet Union and PRC's veto against ROC membership. Once expelled, Larson saw a “net result … with no prospect of re-admission” of the ROC.Footnote ⁶⁹ It thus was clear already in 1966 that the US and other Western governments had to find a way to make a deal with the Soviet Union and PRC to allow continued membership of the ROC. They had not heeded Stavropoulos's warning that time was running out to secure ROC membership. The socialist bloc and several African and Asian countries now pushed for the ROC's complete expulsion.Footnote ⁷⁰

Yet, in Larson's eyes, there seemed to be precedent for a deal. When Syria had left the UAR in 1961, the Syrian government resumed a separate UN membership without applying as a new member. Larson argued against Stavropoulos's Syria position and claimed that a UN member state had split into two separate sovereign states and both governments were allowed continued membership. However, the PRC had made clear that it would under no circumstances accept the notion of two Chinese states. This route to accommodate both Chinese governments thus seemed blocked. The PRC's foreign minister, Chen Yi, had even demanded a fundamental reform of the United Nations as a precondition of PRC membership in which “the UN Charter should be reviewed and revised jointly by all countries, big and small; all independent states should be included in the United Nations; and all imperialist puppets should be expelled.”Footnote ⁷¹ The resolutions condemning the PRC and North Korea as aggressors should also be revoked in favor of denouncing the United States as the aggressor in the Korean War. Despite those radical demands, even Larson argued that PRC membership within the United Nations could at least create a permanent diplomatic framework to engage the Beijing government.Footnote ⁷²

When universal membership and access to the United Nations moved to the center of UN disputes over China, the Korean question also returned.Footnote ⁷³ Socialist bloc countries demanded that the UN Commission for the Unification and Rehabilitation of Korea (UNCURK) be dissolved and all US troops be withdrawn. Kim Il Sung hoped to capitalize on the increasing number of African and Asian UN members and demanded that all “unlawful resolutions … adopted under US pressure” had to be revoked.Footnote ⁷⁴ When the International Law Commission reexamined the draft articles for the Law of Treaties in 1966, socialist bloc and African states again pushed for the application of the “all states” formula. Against the standing UN practice, the so-called Vienna Formula, which allowed only member states and official observers an official say in UN debates, all sovereign states should be able to partake in the codification of the Law of Treaties in accordance with the universality promise of international law. This proposal was eventually voted down with the argument that it would place undue political responsibility on the secretary-general to decide which entities were states that ought to be invited.Footnote ⁷⁵ States such as the GDR now saw the secretary-general as their primary target for lobbying for their states’ recognition. Thant indeed pushed for the transformation of the United Nations from an institution still shaped by the legal inequalities originating from the colonial era into a universal organization open to all states based on the principle of sovereign equality.Footnote ⁷⁶

Conflicts over Chinese sovereignty and representation now reached a boiling point at the United Nations. Power struggles over the sovereignty of divided countries crystallized in battles over internal UN regulations. The supporters of the PRC's position argued that the China question presented a procedural issue within the Security Council. In the General Assembly, however, there existed no distinction between “procedural matters” and “all other matters” in dealing with questions of national representation. Even if the China issue represented a “procedural matter” as the US claimed, it would not be rendered unimportant automatically. Political agendas now dictated the classification of the legal intricacies of the “China question.” The French delegation made the point against the US position. The French argued that the matter of Chinese representation should not be treated as an “important question” on admitting a new state or recognize a government. Rather, the French maintained, the United Nations had “to make sure that properly accredited representatives, in law and in fact, represented a State which was a Member of the United Nations—the People's Republic of China.”Footnote ⁷⁷ The PRC's representation within the United Nations thus did not represent an “important question” in the remits of Article 18 or the UN charter following the French view—and thus did not require a two-thirds majority as the US hoped to maintain—but should be decided by simple majority. By 1968, supporters of the PRC radicalized their legal language further and accused the coalition around the United States and ROC of an illegal quarantine of Beijing.Footnote ⁷⁸ Supporters of the PRC now argued that there existed confusion over the distinction between “state” and “government.” Although the Guomindang “government” had taken part in the founding of the United Nations, the PRC actually represented the Chinese “nation and state.” Thus, the PRC had a natural right to represent China internationally.Footnote ⁷⁹

The West German UN observer delegation watched with increasing fear how the US government was forced to realize that its total non-recognition policy of the China issue had outlived its time. The United States had to surrender its resistance to the formation of a UN study group on the issue, which was supposed to restart the debate. By 1970, African support for the PRC's position had hardened. More and more African states advocated discusing the admission of the PRC. The initially small coalition spearheaded by Albania and reluctantly supported by the socialist bloc had growing appeal among the Afro-Asian bloc in the United Nations.Footnote ⁸⁰ Countries supporting the PRC now became bolder in their approach. Tunisia proposed a resolution that demanded that the secretary-general be entrusted with the task of exploring solutions to the China issue. In other words, the United Nations as an institution should actively involve itself in the dispute. Although voted down, the attacks on the United States and ROC became more overt with every passing year. Now, critics argued that “any ‘two China concept’ was politically and juridically unsound.”Footnote ⁸¹ Although this reassured the West German government, the US administration realized that the United States had to come to a new arrangement with Beijing. A year later, Henry Kissinger's secret visit to the PRC prepared the famous rapprochement announced by Richard Nixon and Mao in 1972. The Soviet Union meanwhile put more pressure on the Western coalition to recognize the sovereignty of the GDR, PRC, North Vietnam, and North Korea following the unanimous adoption of the declaration celebrating the twenty-fifth anniversary of the United Nations, which had once again reaffirmed the goal of universal representation of all states within the institution.Footnote ⁸²

“One China” and a Divided Germany

In 1971, the dam broke. The United States was no longer able to use procedural rules to block the PRC's accession to UN membership.Footnote ⁸³ Against the routine of previous years, the US proposal on the China issue was no longer discussed under one heading together with the draft championed by Albania and other countries. The coalition of countries that supported PRC membership successfully decoupled the vote from the Security Council and moved it on the floor of the General Assembly. In response, the US delegation tried to shift tactics and advocate the UN acknowledgment of the existence of two Chinese states in a memorandum from August 17, 1971. A coalition of twenty-two states forced the official distribution of a PRC Ministry of Foreign Affairs statement, in which the PRC rejected the existence of a second Chinese state. The PRC called for the immediate expulsion of the ROC from all UN affairs. Prompted by the United States, the delegations of Saudi Arabia and Tunisia submitted amendments highlighting the right of self-determination of the Taiwanese. An independent Taiwanese state should not be rejected out of hand. The Albanian delegation now pressed the point that the question before the United Nations was the representation of a state that was already a member of the United Nations (not—as the United States contended—“the representation of China in the UN” and a two-state question). With secret negotiations between the United States and PRC government underway, George H. W. Bush as the US representative at the United Nations declared that the United States had decided that 1971 should be the year to change course on the China question. Bush claimed that he had consulted with nearly the whole UN membership and proposed to seat the PRC in the Security Council and both Chinese states in the General Assembly.

Yet, such a move posed fundamental dangers to newly independent African states. Bush tried to secure his desired outcome by proposing that the expulsion of the ROC required a two-thirds majority. The Mali delegate pointed to the peril for decolonized states by arguing that a “vote for the two resolutions would create a precedent which, far from finding a solution to the problem of divided countries, could foster parcelization of the states of the third world, many of which are looking for final boundaries conforming to their national identity.”Footnote ⁸⁴ Although the United States still managed to get its draft resolution to a vote, the General Assembly rejected this proposal. The following US motion to separate the votes for admitting the PRC and expelling the ROC was subsequently also defeated. The General Assembly then adopted resolution 2758(XXVI), which restored all rights of UN representation of the PRC and expelled the ROC from all UN organizations on October 25, 1971. The Security Council was for the first time outmaneuvered in such a crucial and far-reaching decision. On November 23, 1971, the PRC delegation first attended a Security Council meeting and completed the reversal of Chinese representation.

The Western world reacted with shock. In the historical moment of the PRC's UN admission, decolonization had turned the General Assembly into the decision-making body of the United Nations; a demand advanced by many anti-colonial leaders in the 1960s.Footnote ⁸⁵ The US public, in particular, was ill-prepared to accept such diminished US influence in world affairs. Since the mid-1960s, legal experts such as Larson had tried to refute claims that an Afro-Asian bloc was taking over the United Nations. Since the Soviet Union had tried to depose Secretary-General Dag Hammerskjöld during the Congo Crisis, Western publics suspected the formation of a third world front within the United Nations around the most “emotion-charged” issue of Chinese representation. In 1966, Larson still contended that the Security Council and the General Assembly would decide independently of each other which state represented China in their ranks. He thus proposed that it was possible that two different states could represent China within the United Nations. The events of 1971, however, clearly showed that a veto of the Security Council against seating the PRC in case of an affirmative vote in the General Assembly was not an option.

In this international climate, Menzel wrote the aforementioned article in which he stated that he hoped to return the legal issue of German politics to the safe ground of German Staatsrecht and the framework that the four Allies had set up after 1945. International politics of sovereignty, as the shift in Chinese UN representation showed, had critically endangered West German “one Germany” concepts and legal frameworks of sovereignty. The politics of sovereignty had moved on from the early Cold War West German frameworks that Menzel tried to defend. Anti-colonial rights campaigns had established the human right of self-determination as the central concept for claims to political legitimacy in representing sovereignty. Western policies of non-recognition toward socialist states forming parts of “divided countries”—molded in legal languages at the United Nations and in other international organizations after 1949—had lost their credibility in the 1960s in the face of demands for a truly universal international system based on sovereign equality of states. The PRC's rise as a regional power gave such demands the necessary political clout within UN politics.

If we see Ostpolitik's formula of “two states in one nation” promoted by the West German government in the context of international politics of sovereignty at the United Nations, the impact of rights languages framing decolonization and new international coalitions in UN politics around the representation of sovereignty on German Cold War politics comes into view.Footnote ⁸⁶ The demand for equality and universal representation of all sovereign states within UN politics undermined West German legal frameworks. The universal recognition of all independent states was a question of actual power relations, international public opinion, and political support rather than the strict legal issue Menzel and Geiger both tried to portray to a West German scholarly audience in 1971 despite their disagreement over the interpretation of Germany's current legal status and the impact of Ostpolitik. Facing Western powers turning to a politics of détente and Ostpolitik, conservative voices within the Federal Constitutional Court and among legal scholars radicalized their language once more and postulated that the Federal Republic's and the German Reich's sovereignty were identical. Earlier legal frameworks had stressed the legitimate succession in sovereignty as part of West German concepts of “double sovereignty.”Footnote ⁸⁷ In 1973, the constitutional court adopted the “identity theory” in a controversial verdict.Footnote ⁸⁸ This judicial stopgap against fully recognizing the GDR's legal sovereign independence would remain part of West German conceptional debates until unification in 1990.Footnote ⁸⁹

The politics of sovereignty at work in the United Nations showed that concepts of sovereignty in international affairs heavily relied on political coalitions and was subject to shifts in international Cold War power relations. After the short moment in which the General Assembly became the decision-making body of the United Nations and altered Chinese representation, the brittle coalition between socialist bloc countries and African and Asian states soon broke down. The defense of sovereignty—rather than an endorsement of universal membership based on self-determination—occupied African and Asian leaders much more once they faced opposition to their rule after independence. The shift toward economic power relations and third world proposals for a New International Economic Order as well as the separation of the UN legal interpretation of Chinese and German division in the early 1970s finally made the accession of two German states to the United Nations possible in 1973. Although many observers had seen Chinese and German division as part of the same political and legal issue in the 1960s, the different historical trajectories that had led to the divisions of China and Germany determined different UN legal standards after 1971. In this, West German arguments prevailed. The UN legal division determined that the civil war in China that led to the division of the country in 1949 and the breakup of Germany under Allied occupation ought to result in a different legal treatment of the issue of Chinese and German sovereignty. Although the “one-China” paradigm continued to structure debate on the PRC and ROC, Ostpolitik treaties created the basis for UN representation of both German states.Footnote ⁹⁰ The moment of convergence in treating national divisions in Europe and Asia as a challenge to concepts of international sovereignty gave way to a special treatment of German sovereignty in UN legal politics until 1989.