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Max Planck Encyclopedia of Public International Law [MPEPIL]


Christian Hattenhauer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 August 2019

Islands and artificial islands — Territory, acquisition and transfer — Sovereignty — Jurisdiction of states, territoriality principle — States, independence

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Heligoland (in German 'Helgoland', presumably from Low German ‘dat hillige Lunn’ [the holy land]; Frisian/Heligolandic 'deät Lun') is a German archipelago with an area of 1.7 square kilometres. It is located in the German Bight, a south-eastern part of the North Sea, about 45 kilometres from the nearest point on the German coastline. Heligoland consists of the Hauptinsel (main island, 1 square kilometre) and the island Düne (Dune, 0.7 square kilometres), and has a population of about 1500 inhabitants, mainly ethnic Frisians.

Possession of Heligoland has changed several times. As a result of the Heligoland—Zanzibar Treaty in particular (paras 5–6 below), issues of international law have arisen concerning treaty-based acquisition of territory (Territory, Acquisition), the effects on the rights of Heligoland’s population and the effect of World Wars I and II on these treaties.

B.  History until 1890

Heligoland was colonized by Frisians in the 7th century. From the 11th century it was subject to the suzerainty of the Danish crown, but this was weakened after 1300. In the 14th century, the island was a hideout for buccaneers. In 1402, Heligoland became part of the Duchy of Schleswig, a Danish feudal tenure, which was becoming more independent. As a result of the second separation of Schleswig in 1544, Heligoland devolved on Schleswig-Holstein-Gottorp. The Danish 'Jyske Lov' (Law of Jutland 1241), replaced in the Kingdom of Denmark by the Danish Law (1683), remained in force on the island, which continued to be part of the Duchy of Schleswig until the German Civil Code ('Bürgerliches Gesetzbuch', [‘BGB’]) came into effect in 1900 (some rules are still in force, Art. 55 et seq Einführungsgesetze BGB). In the 16th and 17th centuries, the island enjoyed the right to wreck and possessed several ducal 'Landesbeliebungen' (Land Laws). Following the occupation by Denmark in 1714 and as a result of the Great Northern War (1700–21), Heligoland was finally incorporated into a unique Duchy of Schleswig under Danish rule in 1721. However, the islanders retained their right to self-administration and were not obliged to perform Danish military service.

In 1807, during the Napoleonic Wars, Great Britain occupied Heligoland. During the Continental System, it served as a base for smuggling and espionage and also for the recruitment of German volunteers to fight against France. British colonial possession of Heligoland was established in 1814 (Art. III Treaty of Peace between Denmark and Great Britain), although its internal legal system did not change. In 1826, Heligoland enjoyed its first season as a tourist resort. Concomitantly, it became a meeting point for German revolutionary writers and a location for research into the natural sciences. In 1841, the poet and professor August Heinrich Hoffmann von Fallersleben, who was forced into exile by Prussia because of his liberal views, wrote the ‘Lied der Deutschen’ whilst on Heligoland, as an expression of the desire for German unification; its third verse is today’s German national anthem.

C.  The Heligoland-Zanzibar Treaty

In 1890, Heligoland was ceded to the German Empire (Art. XII (1) Agreement between Germany and Great Britain respecting Zanzibar, Heligoland and the Spheres of Influence of the two countries in Africa (‘Heligoland-Zanzibar Treaty’). Handed over on 9 August 1890, it was incorporated into the territory of the German Empire (Gesetz betreffend die Vereinigung von Helgoland mit dem Deutschen Reich) and, in 1891, into the Kingdom of Prussia as a part of the province of Schleswig-Holstein (Gesetz betreffend die Vereinigung der Insel Helgoland mit der Preußischen Monarchie). The Heligoland-Zanzibar Treaty contained several agreements in favour of Heligoland as a third party. These were guarantees to ensure the maintenance of the advantages it had enjoyed under its previous legal status (‘grandfathering’ approach). According to Art. XII (5) Heligoland-Zanzibar Treaty, the customs sovereignty of the German Empire was not to be imposed on Heligoland until 1 January 1910. The existing local laws and practices of Heligoland had to be maintained as far as possible (Art. XII (4) ibid). The Heligolanders were free to choose British nationality (Art. XII (2) ibid ; Option of Nationality) and kept their exemption from compulsory military service in the German army and navy (Art. XII (3) ibid).

Although the state of war between Britain and Germany during World War I annulled this treaty, the implementation of the territory’s alienation was not effected. The Versailles Peace Treaty (1919) established the right of the Allied Powers to demand the renewal of former treaties (in Art. 289); regarding the Heligoland-Zanzibar Treaty, Great Britain waived this right as it was not exercised within the allotted time limit. Opinions differed as to whether this waiver affected the guarantees in favour of the Heligolanders.

D.  Heligoland after World War I

Due to Heligoland’s strategic position between the mouths of the Weser river and the Elbe river, a major naval base was established near the Kiel Canal, which opened in 1895. After World War I—as part of the demilitarization process of Germany—the military facilities in Heligoland had to be razed (Art. 115 Versailles Peace Treaty).

Little by little, Heligoland was integrated into the German legal system; the Constitution of the Weimar Republic ('Die Verfassung des Deutschen Reichs', [‘WRV’]) included customs sovereignty over Heligoland (Art. 82 WRV). However, the Heligolanders relied on the stipulations of the Heligoland-Zanzibar Treaty and claimed the right to be considered as a national minority (Art. 113 WRV). Consequently, Heligoland was excluded from the customs area (Art. 82 (4) WRV; see Art. 5 (2) No 5 Zollgesetz [20 March 1939] RGBl [1939] I 529–48). Until 1929, a special regulation safeguarded the rights of indigenous islanders: while, in the rest of Germany, the right to vote in municipal elections depended on one’s having been permanently domiciled in the community for one year, this period was increased to five years in the case of Heligoland (Arts 17 (2), 178 (2) WRV; Gesetz zur Ergänzung des Artikel 178 der Reichsverfassung; Gesetz betreffend das Gemeindewahlrecht in Helgoland). From 1922 to 1932, Heligoland was an independent ‘Kreis’ (district). Refortification as a naval stronghold began in 1935.

E.  Heligoland after World War II

In 1944–45, two allied air raids ravaged the island and after British occupation on 11 May 1945, Heligoland was subordinated to the British admiralty alone. The population was banished on 12 May 1945. During British possession, as part of a short-term arrangement the island was used as a bombing range for the British air force. Britain’s long-term plans for the island alternated between reincorporation into the territory of Great Britain, Germany’s cession of servitude imposed on Heligoland for its use as an international bombing range, or the award of a special status under international control. The issue of resettlement was wilfully neglected. According to statements by two high-ranking British officers, the British measures aimed at the total destruction of Heligoland. However, at a conference held in Hamburg on 18 April 1947, British authorities denied having this aim. The rumour of total destruction was reinforced by a controlled demolition on 19 April 1947: British troops triggered the biggest non-nuclear, single explosion ever, which aimed at destroying only Heligoland’s military installations.

10  Subsumed under the term ‘Die Frage Helgoland’ (‘The Heligoland Issue’), official protest[s] and petitions by the German authorities against the British measures were complemented by private initiatives and gained international support. Germany relied on the Hague Regulations on Land Warfare (see Dokumente deutscher Kriegsschäden IV/3 39–41). The destruction of the island beyond destroying the military facilities, its use for military practice, and the denial of Heligolanders’ right to return to their homeland were regarded as breaches of international law. As had happened after World War I, in 1946 an individual group of Heligolanders futilely sought international support for the islands’ autonomy, a separate status, the internationalization of Heligoland, or its reincorporation into the territory of Great Britain or Denmark (see ibid 47). Several peaceful and symbolic occupations of the island by non-governmental activists took place. Nevertheless, the island remained under British occupation and on 29 December 1950 any access to Heligoland without special permission of the British military government was forbidden (United Kingdom High Commissioner Ordinance No 224 [dated 28 December 1950]; Official Gazette of the Allied High Commission for Germany [1951] 734).

11  However, in 1950 the protests led to debates in the British House of Commons about the legitimacy of the British measures. From the point of view of rising East-West tensions, although Heligoland was originally considered as an airbase from which to launch flights aimed at eastern targets, a change in British policy finally took place, as Western Germany was regarded as an ally. On 1 March 1952, the islands were restored to the Federal Republic of Germany and resettlement and rebuilding began. The administration was taken over by the 'Helgoland-Ausschuss' (Heligoland Committee), which acted as a forerunner to a local council until 27 May 1956, when the first election took place. The Heligoland Committee had been elected in June 1951 and the election had been facilitated because the people of Heligoland had organized themselves into a reactivated club called ‘Halluner Moats’ (‘Heligolandic fellows’) in 1948 (§ 10 Gesetz über den Wiederaufbau und die Verwaltung der Gemeinde Helgoland [Helgoland-Gesetz] [15 March 1952] GVOBl SH [1952] 62–65).

F.  Actual Legal Status

1.  Administration

12  Today, Heligoland is part of the district Pinneberg in the Federal States of Schleswig-Holstein. In addition to the common constitutional guarantee of self-administration (Art. 28 (2) German Basic Law), several exceptions in local law can be linked to Heligoland’s history, eg the ‘Heligoland law’ of 1966 (Gesetz über die Verwaltung der Gemeinde Helgoland [17 February 1966] GVOBl SH [1966] 25–26). The mayor must meet additional statutory requirements: he must be personally and professionally qualified to meet the demands stemming from the special position held by Heligoland. In spite of its small population, Heligoland has remained an 'amtsfreie' municipality; it is not included in a superordinate 'Amt', which combines several small municipalities for administrative reasons (see §§ 1 (2), 2 (1) Erste Verordnung zur Durchführung der Amtsordnung GVOBL SH [1947] 50).

2.  Frisian Minority

13  On 1 August 1990, a revision of the 'Landessatzung' (Constitution) of Schleswig-Holstein fixed the protection of the Frisian and Danish minorities as a national objective and as part of the basic institutional principals (Art. 5 Gesetz zur Änderung der Landessatzung für Schleswig-Holstein [13 June 1990] GVOBl SH [1990] 391–400). On 16 September 1998, Germany ratified the European Charter for Regional or Minority Languages (adopted 5 November 1992, entered into force 1 June 2000 [2044 UNTS 575]) ; Minorities, European Protection). In 2004, in accordance with the aim stated in the constitution and the European Charter, the Friesisch-Gesetz was put into effect (Gesetz zur Förderung des Friesischen im Öffentlichen Raum [13 December 2004] GVOBl SH [2004] 481–83); thus with the inclusion of Heligoland, Frisian became the second official language in parts of Schleswig-Holstein.

3.  Customs and Taxes

14  Heligoland has retained its special customs status. It belongs neither to the customs territory of the European (Economic) Community (Art. 3 (1) Council Regulation [EEC] 2913/92 of 12 October 1992 establishing the Community Customs Code [1992] OJ L302/1), nor to the German customs area (§ 2 (3) (6) Zollgesetz [18 May 1970] BGBl [1970] I 529–60). A special local import duty in favour of Heligoland’s authorities is levied on goods that would otherwise be subject to German consumption taxes; as Germany’s customs sovereignty included Heligoland, statutes at both federal as well as state level had to provide for such a duty (§ 6 Heligoland Law 1966; Gesetz zur Erhebung einer Einfuhrsteuer auf der Insel Helgoland [7 December 1959] GVOBl SH [1959] 213; Gesetz über eine Gemeindeeinfuhrsteuer auf der Insel Helgoland [17 November 1959] BGBl [1959] I 685; 2 BvL 19/56 Bundesverfassungsgericht [German Federal Constitutional Court 2nd Senate] [29 October 1958] 8 BVerfGE 260).

4.  German Territorial Sea (former ‘Heligoland Box’)

15  The so-called ‘Heligoland box’ was a trapezoidal extension of Germany’s territorial sea beyond the former 3-mile zone in the North Sea, which was claimed by Germany with effect from 16 March 1985 (Bekanntmachung des Beschlusses der Bundesregierung vom 12. November 1984 BGBl [1984] I 1366). The existence of a deep-water roadsteads and the development of international custom in favour of a 12-mile zone legitimated only certain parts of this zone of territorial sea. In addition to the legitimated areas, Germany included the intervening waters. This action was contested by some States. With effect from 1 January 1995, Germany abandoned the ‘Heligoland box’, proclaimed a general 12-mile zone in the North Sea, and designated the aforementioned roadstead as territorial sea (Bekanntmachung der Proklamation der Bundesregierung vom 11. November 1994 BGBl [1994] I 3428–29).

5.  Environment

16  Heligoland is an important location for scientific research, particularly ornithological and marine research. National and international nature protection measures cover parts of Heligoland and the surrounding area—eg nature reserves 'Helgoländer Felssockel' ([24 April 1981] GVOBl SH (1981) 67–68; [31 January 1985] GVOBl SH [1985] 68); and Lummenfelsen der Insel Helgoland ([8 May 1964] GVOBl SH [1964] 57–58; [11 July 1973] GVOBl SH [1973] 277–78).

G.  Assessment

17  Heligoland’s affiliation to Germany in the late 19th and the first half of the 20th century still affects Heligoland’s legal status. Today, the rights of the Frisian minority and the aspect of environmental protection, as well as Heligoland’s particular economic situation concerning taxes and customs, are the matters generally focused upon.