Already during the night of 30 April to 1 May 1934, the exchange of ratifications prepared with the Papal Nuntio took place and already on the 1 May 1934 the concordat was made public in the federal gazette.
From the preceding explanation it is evident, that the Concordat between the Holy See and the Republic of Austria has been concluded under circumstances which offer the possibility to represent, with reasons which cannot be contradicted, the point of view that the conclusion of the Concordat was completely in violation of the constitution and therefore no legal validity can be attributed to the Concordat. In this respect it has to be noted that the fact that the Concordat was concluded in violation of the constitution was regarded as a fact already at that time in all serious judicial circles in Austria. (Compare in this respect particularly also the remarks referring to the Concordat made in the work of Guerke on "The Austrian Constitution of 1934" in the archive of public law, new edition, volume 25, page 178 pp.).
This point of view would open up the following additional path:
The Reich government declares to the Holy See on the basis of these facts that, after examining the legal angle, it had come to the conclusion that for the reason stated it could not recognize the Concordat any longer and is combining with that also with the effect "ex nunc" and with simultaneous legal settlement of the questions remaining unclarified through the abrogation of the Concordat, the abolition of the Austrian legal regulations referring to the Concordat (Federal law RGBl II, Nr. 8/1934 in the version of RGBl Nr. 134/1935 and decree RGBl II Nr. 13/1934).
2. The Concordat has expired automatically, through the reunion of Austria with the German Reich, because Austria has vanished as independent state, has obtained the constitutional position of a German state and therefore lost the position as a subject of international law. This point of view which by reason of logic can surely only be taken retroactive to 13 March 1938, would be based more exactly on the following:
Within the international legal sphere there is no general legal succession of the territorial successor into the rights and duties of the territorial predecessor. It rather has to be scrutinized in each case separately, whether a legal succession in accordance with international law occurs. With the fall of the territorial predecessor, the bilateral state treaties concluded by him are as a rule void. However some exceptions to this principle are recognized: National practice has shown that state treaties will be renewed tacitly by the territorial successor simply by administering them further. But a new state may also be forced, in order to obtain desired recognition, to take over certain state treaties. A general duty in accordance with international law for the fulfillment of obligations resulting from treaties made by the territorial predecessor, exists, however, only in the following cases: As a rule, state treaties which concern the territory of the state taken over as such, that is, so-called "ratifizierte" treaties (border treaties, treaties on rivers and roads of communication), will also fall to the territorial successor. Furthermore, those Concordats which have in accordance with customary law found recognition beyond the sphere of the partners of the treaty, will also be valid for the territorial successor. Lastly, rules can be established through a collective treaty which determines a certain order for a group of states. Those norms also remain in effect in case of territorial changes within that group and therefore also fall to the territorial successor. (Compare Verdross, international law 1937, Page 71.)
The following additional consequences would be combined with the conceptions mentioned above:
To 1: The establishment of the unconstitutional conclusion of the Concordat would first of all represent a strong moral verdict against the whole past system connected with the names Dollfuss and Schuschnigg in Austria, which could be politically very desirable for various reasons.
The attitude of the Reich government toward the other bilateral State treaties signed by Austria would not be prejudiced as no other state treaty of more importance was signed under the same circumstances as the Concordat. One would prefer this procedure in the expected discussions with other countries, some of which (Jugoslavia, Poland, England) have already referred to their stipulated rights in Austria.
The declaration that the Concordat will not be acknowledged on the grounds of unconstitutionality and the repeal of the connected Austrian legal provisions with "ex nunc" effect would not influence the validity of the legal acts based on the Concordat (especially on the field of matrimonial law as to states rights). An express legalization of the past is therefore not required.