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THE BETTER GERMAN: ASYLUM AND THE CONSTRUCTION OF GERMAN NATIONAL POLITICAL IDENTITY, 1949 1993 BY HANNAH WOERNER A Thesis Submitted to the Division of Social Sciences and the Division of Humanities New College of Florida in partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Dr. Joseph Mink and Dr. Glenn Cuomo Sarasota, Florida April, 2010
ii DEDICATION For my parents and sister, Jennifer, Lee and Liza, for their unwavering support and encouragement. Thank you so much Mom for convincing me it all made sense and instilling me with confidence like always. For Jesse, for braving the thesis monster to encourage his best friend. And for my Mark, for being p atient as always and cheering me up like no one else can. This work is also dedicated to my Opa and Oma, for all their help and advice and for being so excited about my thesis and academic career. And to my Prime Six friends: Mary Barnes, Sarah Brow n, Mitchell Hearn, Sarah Thompson and Shanna Turner. May the live forever.
iii ACKNOWLEDGEMENTS First and foremost, I would like to thank my thesis advisor, Dr. Joseph Mink, for his guidance and tireless support. Yo u have my eternal gratitude for helping me to turn my many chaotic thesis inspirations into something that I am proud of. I am also grateful to Dr. Glenn Cuomo, for guiding me throughout my years at New College and for providing endless support in all m atters German. I would also like to extend my thanks to my committee members, Dr. Wendy Sutherland and Dr. Barbara Hicks, for their time and effort.
iv CONTENTS Dedication ................................ ................................ ................................ ..................... ii Acknowledgements ................................ ................................ ................................ .... i ii Table of Contents ................................ ................................ ................................ ......... iv Glossary ................................ ................................ ................................ .......................... v Abstract ................................ ................................ ................................ ...................... viii Introduction ................................ ................................ ................................ ....................... 1 Chapter I: The 1949 Asylum Debate ................................ ................................ .............. 16 Introduction ................................ ................................ ................................ ................. 16 German Asylum Practice prior to 1949 ................................ ................................ ...... 21 Article 16(II)(2) of the 1949 Basic Law Political Considerati ons ........................... 24 The Allied Role in the Creation of a Postwar Ethnocultural Narrative ...................... 44 Chapter II: The 1993 Asylum Debate ................................ ................................ ............ 54 Introduction ................................ ................................ ................................ ................. 54 The 1994 Elections and the Construction of the Asylum Threat ............................... 58 The Economic Dimension of the 1993 As ylum Debate ................................ ............. 64 The Ethnocultural Dimension of the 1993 Asylum Debate ................................ ........ 72 The Political Dimension of the 1993 Asylum Debate ................................ ................ 83 Conclusion ................................ ................................ ................................ ........................ 94 Appendix ................................ ................................ ................................ ......................... 100 Article 16 of the German Basic Law ................................ ................................ ........ 100 German Asylum Practice 1949 1993 ................................ ................................ ........ 10 1 European Union treaties, conventions, and initiatives related to asylum and immigration, 1985 1992 ................................ ................................ ........................... 104 EU Member States by Entry Date and Candidate Countries ................................ .... 105 Map of the European Union demonstrating states bordering Germany ................... 106 Bibliography ................................ ................................ ................................ ................... 107
v GLOSSARY Anwerbestopp An end to the active recruiting of foreign labor in 1973. Auslnderproblematik The problem of foreigners Auslandsdeutsche German citizens living abroad Asylant Pejor ative term for an asylum seeker Asylberechtigte Those entitled to asylum Asylbetrger Asylum con men Asylbewerber Asylum applicants Asylmissbrauch Asylum misuse Aussiedler Term used until the fall of the Soviet Union in 1990 to designate eth nic Germans who relocated to the Federal Republic of Germany from areas outside the pre 1945 borders of the former Third Reich, mainly from the Soviet bloc countries of Eastern Europe. Bundesangehrige Federal citizens Bundesgebiet Territory of the Federal Republic Germany Bundesrepublik Federal Republic of Germany Bundesrat Federal Council; Upper House of the German Federal Parliament Bundestag Lower House of the German Federal Parliament Die Petersberger Wende refers to the 1992 political turn around of the SPD regarding asylum policy. The SPD conceded to the CDU/CSU after the Petersberg convention center near Bonn where the SPD leadership was meeting Duldung Tolerated status for refugees Flchtling Refugee
vi Frankfurter Dokumente Basic guidelines for the German constitution submitted by the military governors of the occupied zones to the prime ministers of the West German Lnder Fremdenfeindlichkeit Hostility towards foreigners; xenophobia Gastarbeiter Guest workers Geduldet Tolerated status resulting in a stay of deportation Grundgesetz Basic Law Grundrechte Fundamental rights Ignorant Ignoram us Integrationsfhigkeit Integration capacity Lnder German states Nazizeit The Nazi period or the Third Reich Parlamentarischer Rat Parliamentary Council; 1948 1949 constitutional convention Querulant Grumbler Reichsdeutsche This term originally pertained to citizens of Imperial Germany living within the borders of the German Empire established in 1871 and was later used to refer to Germans citizens who were living within the pre 1938 borders of Germany (i.e., prior to the annexation of Austria and the Sudetenland). This category include d Germans who had been born prior to May 1945 and had been living in the former German territories east of the Oder Neisse line that were incorporated into Poland and Russia after World War II (Sile sia, Pomerania, East Prussia). Republikflchtlinge In the linguistic usage of the German Democratic Republic (GDR), the term refers to persons fleeing the GDR or those who had previously fled the Soviet occupation zone. Such refugees usually fled to the Federal Republic of Germany. Scheinasylant Pseudo asylum seeker Simulant Malingerer Sozialmarktwirtschaft Social market economy
vii Sptaussiedler Term used after 1990 to designate ethnic Germans from the former Soviet bloc who migrated to Germany. It became an official government term in 1993. Staatsangehrigkeit berfremdung Over foreignization bersiedler The term refers to citizens of the German Democratic Republic who migrated to the Fed eral Republic of Germany. These persons were often labeled refugees. Umsiedler Term used in the German Democratic Republic for the ethnic Germans, whether they were Reichsdeutsche or Vertriebene who migrated to East Germany. Verfassungspatriotismus The theory of constitutional patriotism espoused by Jrgen Habermas. Vertriebene Ethnic Germans forcibly expelled from countries east of the Oder Neisse line following World War II. (These territories include East, South and Central Europe. Vertri ebene were expelled predominately from Poland, Czechoslovakia, and Hungary, but also from the Balkans and other eastern regions). The term applies to both Reichsdeutsche and Volksdeutsche Volk The German people defined as an organic, cultura l, linguistic, or racial community. Volksdeutsche Ethnic Germans living abroad (outside the Federal Republic of Germany) without German citizenship; ethnic Germans born outside the Reich. Volksgemeinschaft linguistic or racial community, based on language, history, and bloodlines; a term commonly employed by the Nazis. Vlkisch Wirtschaftsasylant Economic refugee Wirtschaftswunder Zusammengehrigkeitsgefhl The feeling of belonging together
viii THE BETTER GERMAN: ASYLUM AND THE CONSTRUCTION OF GE RMAN NATIONAL POLITICAL IDENTITY, 1949 1993 Hannah Woerner New College of Florida, 2010 ABSTRACT The 1949 German Basic Law represented a conscious repudiation of the ideologies of the Nazi regime in its commitment to fundamental civil r ights and democratic principles. Article 16(II)(2) of the constitution guaranteed politically persecuted individuals, irrespective of race or nationality, asylum in the Federal Republic of Germany. The asylum provision was decidedly more generous than cont emporary international law and made Germany one of the few nations with a constitutional right to asylum. However, substantial political and economic pressures in the early 1990s, engendered by German reunification and steady international economic decline created an inhospitable atmosphere for the rising number of asylum seekers applying to Germany. In 1993, Germany amended its asylum provision to restrict entry. This thesis examines both the 1949 and 1993 asylum debates, focusing on how political leade rs constructed membership claims advocating for the restriction or membership narratives reveal two dominant tensions. First, Germany has struggled to
ix political ideals in the Basic Law, Germany retained a citizenship law based on blood descent and ethnocultural notions of national membership emerged in the 1990s to influence national asylum pol icy. Second, a profound disagreement exists between arguments to protect an unconditional right to asylum for foreigners appear in both 1949 and 1993. However, in 1949, there was d isagreement over whether asylum seekers must demonstrate a commitment to democracy, and in 1993, the amendment was advocated as serving the interests of German citizens. ________________________________________________________________________ Dr. Glenn Cuomo Dr. Joseph Mink Division of Humanities Division of Social Sciences
1 Introduction On July 1, 1993 Germany amended its constitution, the Basic Law [ Grundgesetz ] to restrict the right of asylum Created in the immediate aftermath of World War II and the end of the Nazi regime, the Basic Law seeks to guarantee fundamental civil liberties and promote strict observance of the rule of law. For most scholars, the liberal right to asylum enshrined in Article 16(II)(2) of the Basic Law was an effort to make amends for the atrocities committed during the Third Reich and the vast numbers of people forced to any pol itically persecuted foreigner, surpassing previous German conceptions of asylum law as well as the existing international law. In fact, the 1949 article was considered, until in the world and a model of humanitarian constitutional lawmaking. The immediate cause of the amendment, which passed in the Bundestag by a vote of 521 to 132, was the tremendous increase in asylum applications to the Federal Republ ic of Germany (FRG) in the early 1990s. Asylum applications skyrocketed to nearly 500,000 in 1992, from around 190,000 in 1990 and 100,000 in 1980. Impetus for the constitutional change, however, also arose from the subtler societal tensions of a changing Germany. Pressures generated from the fall of the Berlin Wall in 1989 and reunification in 1991 coupled with steady international economic decline since the mid 1970s complicated issues of immigration and asylum in Germany. By 1993, the landscape of German political life had drastically altered, and the amendment was part of
2 a fundamental debate regarding who was and who should be a member of the German political community. The 1993 constitutional change was also thought to be significant because it undermi ned the liberality of the original 1949 provision, marking a shift in the national conception of asylum and the position of asylum seekers regarding political membership in the Federal Republic. Academics have identified two fundamental proble ms in the 1993 amendment. The first school of thought contends that the change to the Basic Law demonstrates a history. The official government guidelines on immigration and citizenship stated that 1 firm stance against immigration appears to be a puzzling cont radiction in light of the high number of alien residents, resettled ethnic Germans, and asylum seekers in the Federal Republic. Hermann Kurthen describes the demographics of the West German population roughly prior to the 1993 amendment thus: Between 19 50 and 1994 about 5 million persons, including over 3.3 million resettlers claiming German descent and about 1.67 million non Germans (1.45 million naturalized persons and 211,000 granted asylum seekers) were integrated into a West German population of abo ut 63 million (1988). Adding 7 million foreign residents, and 4.64 million East German migrs this represents about 16.6 million or 25 percent of the population living in 1994 on the territory of West Germany. 2 g attitude toward immigration as evidence of an 1 Eli Nathans, The Politics of Citizenship in Germany: Ethnicity, Utility and Nationalism (New York: Berg, 2004), 245 246. 2 International Migratio n Review 29, no. 4 (Winter 1995): 919.
3 3 Rather than celebrating a national history of immigration the German state insists on propagating a Freeman states that immigration was not incorporated as part of the German national self image because Germany only experienced heavy immigration after World War II, when state. 4 Thus, immigration policies in Germany 5 Stefan Senders declares that t he many as a single, monocultural nation when this is assuredly not the case demonstrates that 6 In denying immigration, Germany professes an identity not reflecte 7 The significance of this self contradictory national image is that it encouraged the use of ethnocultural arguments during the 1993 asylum debates. Some public offic Federal Republic on the basis of their inability to become a part of the German ethnic and cultural community. The conservative parties, particularly the CDU/CSU, championed a nationalist perspect ive which refused to recognize the fact of immigration, clinging 3 Kurthen, 914. 4 International Migration Review 29, no. 4 (Winter 1995): 889. 5 Ibid., 881. 6 New German Critique no. 67 (Winter 1996): 174. 7 Ibid.
4 instead to the myth of a monocultural nation 8 The second school of thought argues that the amendment to the Basic Law reflects a choice between universal humanitarian commitments and particularistic, domestic interests. Liza Schuster views the original asylum provision as highlighting general tensions within liberal democratic states to be both liberal and democratic, i.e. responsive to th e needs of all humans as well as its own citizens in particular. 9 In her view, the original asylum provision drafted in 1949 embodied universal, liberal values of justice and tolerance and was created in order to guarantee that politically persecuted refug ees would be afforded protection by the German state. 10 The 1993 amendment, weaker claims upon the German state. In addition, Schuster views the sense of identity th at members derive from the political community as dependent upon the ability of the state to control entry. 11 The state, as a representative democracy, must be exclusionary to 12 Defining a community in particularistic terms often problematizes the issue of the incorporation of asylum seekers because the interests of refugees are often vi ewed as in 8 Foreigner Journal of Peace Research 33, no. 2 (May 1996): 165. 9 Liza Schuster, The Use and Abuse of Political Asylum in Britain and Germany (Portland: Frank Cass Publishers, 2003), 23. 10 Ibid., 185. 11 Ibid., 38. 12 Ibid., 267.
5 direct conflict with those of citizens. 13 Matthew J. Gibney outlines the tensions o membership. Partiality argues that states are morally obligated to privilege the interests of their citizens and to protect the political and cultural autonomy of the national community. 14 In order to protect and maintain their autonomous culture, citizen s must necessarily have a say in who is admitted to the community, thereby granting citizens the right to limit access to both the territory and its resources. The issue of resources is of especial importance in 15 like Germany. Partiality maintains that citizens should have the right to control entrance in order to protect their and the entrance of refugees coul d endanger the social and economic conditions which enable the production of such goods. 16 Impartiality emphasizes the rights of refugees as members of the human community, examining their claims to a secure place of residence on equal footing with the clai ms of citizens to the right of self determination. With an 17 attempting to privilege the universal rights of human beings as well as the particular rights of citizens. Competing concept 18 as the state 13 Matthew J. Gibney, The Ethics and Politics of Asylum: Liberal De mocracy and the Response to Refugees (New York: Cambridge University Press, 2004). 14 Ibid., 19. 15 Ibid., 48. 16 Ibid., 81. 17 Ibid., 23. 18 Ibid., 2.
6 attaches great importance to human rights and the institution of asylum but yet at the same time goes to great lengths to deter refugees or ensure they never reach state borders. The school of thought which views the 1993 constitutional change as evidence of the tension between partial and impartial membership claims exemplifies the same problematic conce ptions of national membership as the first school of thought, which views the amendment as a negative reaction to immigration and cultural diversity. Both interpretations illustrate self contradictory national images, images which Krell et al. suggest reve offer competing conceptions of 19 A n examination of how states structure political membership narratives might resolve these understandi ngs of national identity. In this thesis, I will explain the apparently contradictory versions of German national self understanding. narra tives establishing membership in a polity are to be expected, as they demonstrate the contested nature of German identity and the multiple stories Germans tell about themselves. Smith defines a political people or a al adversary of other forms of human association, because its proponents are generally understood to assert that its obligations legitimately 20 on of political peoples is constructivist, as he disagrees 19 Krell et al., 165. 20 Rogers M. Smith, Stories of Peoplehood: The Politics and Morals of Politi cal Membership (New York: Cambridge University Press, 2003), 20.
7 21 Rather than political peoples arising out of such asymmetrical relations between (would 22 P olitical leaders can substantiate versions of national identity through speeches and legislative and judicial p Individuals are motivated to economic, territorial, demographic, ancestral, religious, linguistic, or cultural identi ty factors. 23 particular community. Political membership claims can be grouped into three basic categories. Smith al, economic, and ethically constitutive stories, that are used by political leaders to justify inclusion in a community. political community will produce expanding economic b 24 25 Political narratives focus on nce the power of members of the 26 Membership 21 Smith, 37. 22 Ibid., 32. 23 Ibid. 24 Ibid., 60. 25 European Journal of Social Theory 5, no. 3 (2002 ): 323. 26 Smith, 62.
8 27 Ethically constitutive stories present membership in a community as intrinsic to who the members are, owing to traits that provide members with a strong sense of normative worth, such as culture, language, religion, race, ethnicity, a ncestry, or history. 28 These stories often include accounts of shared histories or sets of mores that provide members with a deeper sense of belonging within a particular community. This type of story is especially effective for promulgating claims of parti cularistic community memberships, 29 since 30 Membership claims in this context thus often take the form of ethnocultural narratives, wherein members derive a s 31 Notions of moral worth in ethically constitutive narratives do not have to be ethnocultural in nature, however, as they could also include accounts of a shared h istorical past independent of ethnicity or culture which emphasizes the importance of maintaining specific political or social values and practices throughout generations of community members. Smith focuses primarily on the role of ethically constituti ve stories, for they alone 32 In his view, political and economic stories are less intriguing only because they deal with factors that are not such as enhanced power or material 27 Thomas, 323. 28 Smith, 64. 29 Ibid., 96. 30 Ibid., 65. 31 Thomas, 323. 32 Smith, 59.
9 identities, as in the case of ethically constitutive stories. Smith describes that when ethically constitutive stories are used to frame mem ber identity in particularistic terms, it can be significantly difficult to extend equal status to outsiders (here literally those born outside the group) through naturalization. 33 34 Smith provides a framework for determining when ethically constitutive stories are stressed o ver political and economic ones. According to Smith, ethically constitutive 35 in other words, in times of economic and political turmoil. Ethically constitutive stories also come 36 identity 37 one another or are only emphasized by the state at certain moments. According to Smith, in times of econo mic and political strife, ethically constitutive stories are utilized to fortune, the state deemphasizes ethically constitutive membership claims and practices 33 Smith, 66 67. An example of politically feasible naturalizations in Germany is the granting of citizenship status to the Aussiedler or eth nic Germans relocated to the Federal Republic from areas outside the pre 1945 borders of the Third Reich. 34 Ibid. 35 Ibid., 103. 36 Ibid., 121. 37 Ibid.
10 liberal moments in time is common behavior on the part of (would be) leaders, however, even te 38 proffered by political leaders, since the multiple components of these membership narratives appeal to different constituencies. 39 Furthermore, almost every modern natio n promulgates political and ethically constitutive stories of membership simultaneously. This can be seen in the coexistence of states. Nations have traditionally been divided betwe meaning that members are bound together by ely. 40 For Smith, this strict dichotomy does not hold for most share concrete senses of pat 41 I chose to study Germany for two principal reasons; one, that Germany provides elements of political membership construction and two, that asylum law in Germany is The German understanding of national membership is best illustrated 38 Smith, 58. 39 Ibid. 40 Ibid., 74. 41 Ibid., 76.
11 through the concept of the Volk Rogers Brubaker bes t encapsulates the Volk conception of national political membership: Because national feeling developed before the nation state, the German idea of the nation was not, originally, a political one, nor was it linked with the abstract idea of citizen ship. The pre political German nation, this nation in search of a state, was conceived not as the bearer of universal political values, but as an organic, cultural, linguistic or racial community as an irreducibly particular Volksgemeinschaft On this und erstanding, nationhood is constituted by ethnocultural unity and expressed in political unity. (Brubaker 1990: 386) 42 demonstrates commitments to political ideals em could consider the 1949 Basic Law as an attempt to make Germany into a civic political people. The second reason Germany is of particular interest is the fact that the asylum provision is incorporated in the Basic Law. Asylum represents a unique opportunity to study political membership practices due to its status as constitutional law. As a constitution, the Basic Law not only organizes and structures political practices, it also acts as a symbolic doc ument, an aspirational outline for the ideal workings of the state. As such, it should necessarily reflect the ideal prescriptions for membership in the polity. humanitarian prin ciples which embody what a nation state or a people should aspire to be. That domestic contention over the asylum issue was resolved through a constitutional amendment reflects a crisis not only in the politics of inclusion, but in identity as well. A revi sion of the highest law of the land demonstrates an overwhelming public sentiment 42 Gibney, 91.
12 Christina f 43 ac count of how Germany defines political membership. While German citizenship and immigration policies also reflect deep struggles within German society to define who is a rightful member of the polity I chose to examine asylum law because asylum served as a way to gain membership in the German political community when other modes of inclusion, such as naturalization and legal immigration, proved too restrictive. Furthermore, restricting asylum is an instance of community self definition, where native G reinforce their common identity. 44 Sabine von Dirke, in her study of the German debate on multiculturalism, states that the act of self definition by the community involves confrontation with foreign r esidents, forcing community members to reconceptualize their collective identity. 45 and foreigners represents a constitutive element of individual and collective processes of 46 The 1993 German asylum debates are intriguing not primarily because of the asylum seekers themselves, but because of how German political leaders define the 43 International Affairs (Royal Institute of International Affairs 1944 ) 76, no. 3 (July 2000): 538. 44 For further discussion of how acts of exclusion are intrinsic to community self determination, see: Michael Walzer, S pheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, Inc., 1983), 62. 45 German Studies Review 17, no. 3 (October 1994): 515. 46 von Dirke, 528.
13 national community in relation to the problem of asylum. The 1993 amendment restricting the entry of a sylum seekers represents a backlash against the inclusion of foreigners in a multicultural society. 47 Boswell discusses the interaction of political, economic, and ethnocultural factors in determining the membership claims of foreigners in many European countries an d arrives at in times of economic recession and high unemployment, where states are under pressure to concentrate resources on the welfare of their citizens, other sorts of justifications for privileg ing nationals need to be 48 These other types of justifications tend to be informed by economic factors and to employ ethnocentric arguments, which have significant emotional force for centric conception invokes racial or cultur al characteristics that are 49 The 1949 and 1993 German debates on asylum demonstrate that despite an attempt to create Germany as a civic political nation in 1949, underlying ethnocu ltural narratives of German national identity never truly vanished. The construction of the the German nation of German 47 Boswell 538. 48 Ibid., 548. 49 Ibid.
14 the forefront in times of economic and political turmoil. These ethnoc ultural narratives are contested and reconfigured by political entrepreneurs seeking to gain public support community. The 1993 asylum debates also demonstrate that economi c and political narratives of German identity can take on an ethnic cast when ethnocultural narratives resurface. Asylum seekers, as outsiders to the community, were constructed as posing a understanding as a nation and to democracy and its liberal commitments to human rights. I have divid ed my thesis into two chapters. The first chapter examines the 1949 Basic Law as an effort to construct a civic political German people addressing S pecifically, I focus on the asylum provision in Article 16(II)(2) and the construction of asylum in the 1948 1949 parliamentary council debates. During the parliamentary council debates on asylum, delegates constructed differing political narratives of mem bership in the German political community. Within these narratives, two dominant tensions emerged. The first involved whether foreigners or Germans would be eligible for asylum and the second concerned whether Germany would honor liberal or democratic comm itments in its asylum right. In the second chapter, I examine the 1993 constitutional amendment to the asylum provision in the Basic Law. The asylum debates that took place in the early 1990s leading
15 up to the amendment reveal that ethnocultural narrat ives of German national identity resurfaced when the country was experiencing economic and political turmoil. I analyze the constructions of asylum proffered by political entrepreneurs, which formed economic, ethnocultural, and political narratives about G erman national identity. Similar tensions to those that existed in 1949 color the 1993 asylum debates, namely the tension between However, in 1993, these tensions played out in the national as well as the international and EU levels of government.
16 Chapter I: The 1949 Asylum Debate Introduction In June 1948 at the Six Power Conference in London the groundwork was laid for the creation of a unified West German state out of the three western occupation zones. The Allies the United States, Great Britain, and France as well as the Benelux states governors of the occupation zones to empower the prime ministers of the eleven West German states to convene a constitutional assembly. 50 The military governors submitted their requests to the prime ministers in the form of the Frankfurter Dokumente that s tipulated the fundamental precepts of the new German constitution to be democracy, federalism, and the protection of basic rights. 51 These principles had been stipulated previously by the Allied powers at the London Conference. From August 10 23, 1948, a pr eliminary constitutional convention at Herrenchiemsee developed the guidelines for a federation of German states using the Frankfurter Dokumente as a guide. The Parlamentarischer Rat or parliamentary council, that convened on September 1, 1948 used the H errenchiemsee 50 Bildung, http://www1.bpb.de/themen/B3GTPK,0,0,Von_den_Londoner_Empfehlungen_ zum_Grundgesetz.html (accessed January 3, 2010). 51 Hanna On the politics of the right to asylum. Remarks on the asylum right debates in Parlamentarischer Rat 1948 XV Nordic Political Science Association (NOPSA) Conference, Troms, Norway, August 6 9, 2008).
17 draft as the basis for their deliberations. The Parliamentary Council consisted of 65 delegates elected from the eleven west German Landtage and 5 representatives from West Berlin without the right to vote. 52 The two major parties, the Christi an Democrats (CDU/CSU) and the Social Democrats (SDP) each had a representation of 27 delegates, while the minor parties, including the Zentrum the Communist party (KPD) and the Deutsche Volkspartei (DVP) contributed the remaining eleven delegates. 53 After nearly eight months of deliberation, the Basic Law was adopted by the Parliamentary Council on May 8, 1949. It was ratified during the week of May 16 22, 1949 by more than two thirds of the legislatures of the West German Lnder and came into force on May 23, 1949. 54 Although the Basic Law was to be a German constitution, the Allies specified key The Allies required that the new Germany be a constitutional liberal democracy committed to human rights and that Ge rmany commitments, the political institutions and structure of the Federal Republic were designed to guarantee that an illiberal and undemocratic party like the Naz i party could not easily gain power and that basic constitutional rights would be guaranteed to all humans. Institutionally, this required that the law provide for a weaker executive and a stronger legislature than had existed in the Weimar Republic. T first democratic governing experience provided valuable lessons on improving the constitutional design of the new German state. In addition to curtailing the powers of the 52 Grtemaker. 53 Kivist. 54 Germany, German History in Documents and Images, http://germanhistorydocs.ghi dc.org/sub_document.cfm?document_id=2858 (accessed Apri l 12, 2010).
18 executive and allocating more power to parliament, an indepe ndent judiciary was guaranteed. 55 The Federal Constitutional Court (FCC) was established to supervise the constitutionality of the laws. 56 Moreover, it was of paramount importance that the citizens of the Federal Republic be fully committed to democratic pr inciples. To achieve this end, the Basic Law specified that political parties must conform to democratic precepts. Of equal importance for the preservation of German democracy and the absolution of German war guilt was the fundamental commitment to human dignity. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every 57 In addition to a broad obligation to protect human dignity, the first nineteen articles, or Grundrechte of the Basic Law afford basic rights necessary for the protection of individuals tha t may not be fundamentally changed. All persons in the Federal Republic are guaranteed equality before the law, 58 The fr eedoms of expression, assembly, association, and movement are also guaranteed. The Basic Law also made explicit provisions for the protection of stateless end of World War II. 15.4 million people had to leave their home countries as a result of 55 Kivist. 56 Ibid. 57 German Basic Law, art. 1, sec. 1 2. 58 Ibid., art. 3, sec. 3.
19 the Second World War. 59 Most of these refugees had been set adrift with no territorial nation state to claim them and could additionally claim persecution by a state e ntity. During the war, Germany alone was responsible for displacing 4.7 million people, including POWs. 60 These displaced persons were repatriated, sometimes against their will, to Eastern Europe and the Soviet Union. 61 Mass cancellations of naturalizations also occurred during the Nazi period, such as the measure introduced in 1933 against all naturalized Germans of Jewish origin. 62 Article 16 addresses citizenship and the right to asylum, guaranteeing that Germans may not be deprived of their citizenship and that the politically persecuted enjoy the right to asylum. The requirements that Germany disavow its Nazi past, make explicit commitments to universal human rights, and structure its political system to insure the preservation of democracy would allow Germany to earn an honorable place among the free and peace 63 The Grundgesetz that came into force embodied not only a renewed German commitment to democratic values and human rights, such a founding document also sought to cr eate a civic political people united by an allegiance to political principles rather than a common ancestry or culture. The 1949 especially with regard to the concept of the Vo lk and its heavy connotations of race and 59 West Migration, 1945 International Migration Review 28, no. 3 (Autumn 1994): 521. 60 Ibid. 61 Ibid 62 Hannah Arendt, The Origins of Totalitarianism. (New York: Schocken Books, 2004), 353. 63 Congress, ht tp://memory.loc.gov/frd/cs/detoc.html (accessed April 15, 2010). A quote from then U.S. Secretary of State James F. Byrnes.
20 culture. 64 Instead, the Basic Law presents itself as having been adopted by the Deutsche Volk [German people], an expression common to the authoritative political documents of many nations. 65 In this chapter, I wi ll examine the Basic Law, and more specifically, the asylum provision in Article 16(II)(2) as an effort to construct a civic political German people. I have divided the chapter into three sections. The first section addresses German asylum policy prior to the 1949 Basic Law, highlighting the innovative nature of the asylum right in Article 16(II)(2). In the second section, I will analyze the political issues regarding the asylum right, including the problematic conception of the Basic Law as a temporary gov erning document and the dilemma of how to define a divided German people. In addition, I identify two primary tensions in the 1948 1949 parliamentary council debates on asylum regarding political narratives of membership. Delegates to the convention presen ted differing membership claims that can be divided into two basic categories. The first category considers foreigners versus Germans as beneficiaries of the asylum right and the second category considers liberal commitments versus democratic commitments i n deciding eligibility requirements for asylum. These debates emphasize the confusion felt by delegates about whether the right to asylum applied to non Germans and what it meant to be a German democrat. The diverse claims presented by convention delegates highlight the tensions evident in the German asylum debate between universalism and particularism and between constitutionalism and democracy. The third section discusses the Allied contribution to postwar German ethnocultural narratives, concluding with an 64 Smith, 74. 65 Ibid., 13.
21 exploration of t German Asylum Practice prior to 1949 The right to asylum enshrined in Article 16(II)(2) of the 1949 Grundgesetz drastically altered the conception and practice of asylum in Germany. The uniqueness of this provision was not that foreign nationals were able to seek refuge in German territory, as this did not begin with the 1949 constitutional right to asylum, but that asylum was construed as an individual right, rather than a prerogative of the state. Prior to the twentieth century, the granting of asylum was an exceptional event. In the twelfth Geneva, and Nuremberg, were entitled to grant refuge to fugitives, thereby allowing these cities to benefit from increased trade due to their reputations as peaceful and welcoming centers for exchange. 66 Before unification in 1871, asylum was recognized in a limited sense. Many German princes viewed incomers as beneficial in light of the services they could provide. Frederick William I, the Great Elector, welcomed Protestants fleeing France after the revocation of the Edict of Nantes in 1685, as their mercantile skills and manpower could be utilized by the Prussian state. However, this right to refuge did not extend to those refugees considered political criminals. Harboring a refugee guilty of treason was viewed as a hostil e act by other European states, as the sovereignty of the prosecuting state was 66 Schuster, 92.
22 seen as being undermined by the asylum granting state. 67 The ability to extradite sovereign ty than the ability to grant asylum. 68 As a result, the granting of asylum was not common practice among German states, since the economic benefits to be gained from admitting persecuted individuals did not outweigh the geopolitical benefits of being able t o extradite them. Historically, granting asylum had been an irregular occurrence and, according to Hanna Mari Kivist, in the 19 th 69 Such asylum seekers posed potential political problems for the receiving state, as granting them asylum could either offend the country of origin or allow a possible agitator to gain admittance into the state. For Germany, located at the heart of Europe and of ten the site of armed conflict, a wary understanding of asylum developed that defined asylum as protection to those who conspired to overthrow the state. 70 With the establishment of the German Confederation in 1815, the numerous bilateral treaties made between German states to encourage freedom of movement were extended to cover all member states. 71 However, the freedom of movement clauses only abolished exit controls, allowing one to exit a state without paying the traditional exit fees. The state still retained the right to exclude and expel any unwanted immigrants. In not entail any other tangible benefits such as residence rights or access to welfare as in 67 Schuster, 76. 68 Ibid. 69 Kivist. 70 Schuster, 90. 71 Rogers Brubaker, Citize nship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992), 69.
23 the current conception of asylum. Unification of the German states in 1871 did not produce a more generous asylum right than previous regimes, as can be seen by a cursory glance at the constitutions of the German nation state in the nineteenth and twentieth ce nturies. Neither the Imperial Constitution of 1871, the constitutions of the individual German Lnder nor the Weimar Constitution of 1919 afforded asylum based on political persecution. 72 The 1949 provision broke with tradition by reserving asylum as the r ight of 73 In addition to the establishment of an individual, unconditional right of asylum, Article 16(II)(2) came to provide politicall y persecuted individuals granted asylum access to welfare and residence permits on equal footing with citizens. international law at the time. Under international law, the gran ting of asylum was the prerogative of the state rather than the right of an individual as could be claimed under the 1949 German provision. An early draft of the 1948 Universal Declaration of Human Rights included a similar asylum guarantee in Article 14; however, following objections from states that such a right to asylum infringed their sovereign rights, the wording of the provision was changed so that individuals could seek and enjoy asylum rather than enjoy a right to be granted asylum. 74 It was not unt il 1951 that the United Nations Convention 72 Schuster, 183. 73 Ibid., 1. 74 Niklaus Steiner, Arguing about Asylum: The Complexity of Refugee Debates in Europe (New
24 no asylum seeker may be returned to an area where he or she may suffer persecution. 75 rpassed contemporary international asylum law, the German constitutional law was part of a wider European trend to liberalize domestic asylum policies. European states in the wake of World War II, notably those states previously allied to the Axis powers, wanted to ensure protection for displaced and persecuted persons as well as to reiterate liberal democratic commitments. The Italian (1949) and the French (1946) constitutions granted asylum to those individuals barred 76 also affords asylum to individuals who are persecuted because they fought for democratic 77 Article 16(II)(2) of the 1949 Basic Law Political Considerations Politisch Verfolgte geni een Asylrecht ]. Delegates to the convention were forced to address two immediate political questions about asylum. The first question whether the right to asylum would be res erved exclusively for Germans or if it would extend political protection to foreigners. Second, the delegates had to decide if the right 75 Steiner, 15. 76 Kivist. 77 Ibid.
25 to asylum would reflect the fundamental commitment to human dignity prescribed in the Basic Law, with its concomitant p ledge to uphold universal, humanitarian values, or if the requirements of a democratic political culture would be prioritized. In the first debate, the issue of whether the right to asylum would protect foreigners tended to split delegates along party li nes, with representatives from the conservative parties tending to advocate particularistic versions of the asylum provision that excluded non Germans from protection. Arguments that advocated Germans as the sole holders of the asylum right were complicate d, however, by the struggle to define political partition of the country led to a very peculiar constitutional conversation in the 1948 1949 parliamentary debates. Deleg ates resisted condoning an official constitution for the Federal Republic, perhaps because constitutions are typically the products of sovereign nation states articulating the will of the people, not mandates written by provisional governments at the behes t of occupying powers. It was not that the delegates did not desire a constitution to legitimate the new state, but that they wanted all Germans to participate in its adoption. The desire on the part of the delegates to postpone the writing and ratificati on of a constitution until Germany was reunited is clearly an German Volk cont ained an assumption of a shared historical tradition essential to the creation of a for mal constitution.
26 The Basic Law was intended to be a provisional governing document, and while the Allies encouraged the creation of a constitution to bolster a centralized West German state, the prime ministers of the West German Lnder did not want t o strengthen what they hoped would be the temporary division of Germany through a constitution. 78 The delegates refused to formally acknowledge the post war division of the country and [ verfassunggebende Versammlung [ parlamentarischer Rat ]. 79 [ Grundgesetz ] rather than a constitution [ Verfassung ], in order to avoid implying that the Bas ic Law was a permanent, authoritative, constitutional text for the German people. Due to the lack of a cohesive German Volk the preamble to the 1949 Basic Law stated that it was created on behalf of the Germans under Soviet rule. 80 Paragraphs two and thre It [West Germany] has also acted on behalf of those Germans to whom participation was denied. The entire German people is called on to achieve by free self 81 Resistance to the idea o f creating a permanent constitution stems from the fact that any West German constitution would not be the articulation of the entire German people. Therefore, while the Allies called for popular ratification of the Basic Law by two thirds of the participa ting states in the London Recommendations, the Germans did not want to put the 78 politische Bildung http://www1.bpb.de/themen/AAWX7W,0, 0,Warum_Deutschlands_ Verfassung_ Grundgesetz_hei%DFt.html (accessed January 4, 2010). 79 The Western Political Quarterly 2, no. 2 (June 1949): 214. 80 Nathans, 235. 81 Germany, German History in Documents and Images, http://germanhistorydocs.ghi dc.org/sub_ document.cfm?document_id=2858 (accessed Apr il 12, 2010).
27 Basic Law to a popular vote. 82 Instead, delegates to the council insisted on ratification by the Landtage or German state legislative assemblies, as they believed this was a mor e fitting ratification process for what they intended to be a provisional governing document for the Federal Republic of Germany. 83 Delegates feared that the establishment of a West German constitution rather than a basic law or governing document would str engthen the political division of the nation and undermine reunification measures. The Basic Law, while intended to be provisional, has nevertheless become the de facto constitution of the Federal Republic of Germany. 84 Underlying the political and legal issues related to the adoption of the constitution is the desire to reconstitute the German Volk The delegates did not want to close the door on the possibility of a reunified Germany and a constitution adopted by the entire German people. In terms of Article 16, the ambiguity surrounding certain key terms reflects the profound confusion felt by the delegates, and Germany as a whole, regarding German national identity. With the country divided between rival occupying powers, the delegates had reason to question which Germans the new constitution would protect. The framers of the Grundgesetz were reluctant to recognize the division of Germany and did not want to exclude Germans living in the Soviet zone, later to become the German Democratic Republic, from enjoying West German citizenship. West Germany resisted acknowledging East German citizenship claims, and any East Germans fleeing the GDR were automatically accorded citizenship. 85 82 Wells, 215. 83 Ibid. 84 Article 146 of the Grundgesetz ratified constitution comes into effect. While reunification in 1990 created an ideal opportunity to revise th e Basic Law, no referendum ever took place. 85 Kurthen, 930.
28 Concern over the fate of East Germans and the overwhelming tech nical problems of a divided Germany complicated the asylum debates in the Parliamentary Council. Of overriding importance to the delegates was the issue of the political status of Germans in the Soviet zone vis vis West Germany. Many delegates wanted to ensure that all Germans, including those in the east zone, were entitled to enjoy political protection within the Bundesgebiet or federal territory of West Germany. To achieve this aim, delegates proposed to provide political recourse in the form of asylu m to their recently estranged countrymen. Others were preoccupied with whether such a right of asylum would apply to foreigners as well as German refugees fleeing from Eastern Europe and from the Soviet occupied eastern zone of Germany in particular. 86 De legate von Brentano (CDU) presented a narrow conception of who is deserving of political protection by the German state. He suggested a version of the asylum provision which would protect both Germans and foreigners from extradition while extending the rig ht to asylum only to persons of German ethnicity. Wagner (SPD) found such a restriction preposterous, as he declared that asylum is the right that is granted to a foreigner who can no longer live in his own country because he would be robbed of his freedom, his life or his property through the political system. ein Deutscher braucht doch in Deutschland kein politisches Asylrecht. Asylrecht ist doch das Recht, das dem Auslnd er gewhrt wird, der in seinem eigenen Land nicht mehr leben kann, weil er durch das politische System seiner Freiheit, seines Lebens, oder seiner Gter beraubt wrde 87 86 Paul Zeitschrift fr Auslnderrecht und Auslnderpolitik 29 ( 2009): 161 208. 87 Parlamentarischer Rat, 582 (44 th Session
29 For Wagner, the right to asylum is narrowly defined as well, but in that it only ap asylum as a universal right, rather than a privilege reserved for the German Volk The concept of the Volk is instrumental to fully understanding the significant controver sy over the eligibility of Germans versus foreigners for asylum. Von Brentano emphasized the difference between Deutschland and the Bundesgebiet as the concept of Bundesangehrige or federal citizen s. Thus, the German people, or Volk was perceived as greater than the territorial confines of the new West Germany, and asylum for East Germans was viewed as necessary in order to help guarantee the reunification of the German people as a civic body. The arguments put forth by some delegates to extend asylum to East Germans stem from the desire to provide for the lost half of their constitutional people. According to constitut spiegelt letzten Endes die ganze Tragik unserer staatsrechtlichen Situation wider, dass wir kein Deutschland haben ]. 88 The asylum provision was ultimately left open to all persons, regardless of ethnicity, provided that they were the victims of political persecution. Opponents to the inclusion of foreigners in the asylum provision may have relented due to the belief that not many foreigners would seek asylum in Germany. Immediately after the war there were no non Ge rman immigrants to Germany 89 and between 1945 and 1949, immigrants to Germany were predominantly ethnic German refugees and expellees from Central and 88 Parlamentarischer Rat, 583 (44 th Session, 19 January 1949). 89 Brubaker, 169.
30 Eastern Europe. 90 The reality of migration flows in the immediate post war period gave the framers reason t o believe that the number of asylum applicants would remain small and that substantial non German immigration would be unlikely. The second question the delegates at the convention faced was whether the asylum right would prioritize democratic or liber al commitments. The nature of the asylum right had to be determined, including which social, political, and economic rights asylum seekers would be allowed. Arguments as to the potential liberalism of the asylum right were restricted to discussions of how broadly to define political persecution. Violations of human dignity and the oppression of individuals based on factors such as gender, religion, and the deprivation of economic rights were not discussed. Discussion focused instead on the fear that undemo cratic individuals would gain entry to the state through asylum. Although the framers of the Basic Law did not intend to create a constitution for the new Federal Republic, they dealt seriously with the matter of constituting a democratic state that wou ld not again fall prey to totalitarianism. The Basic Law is a reaction to the injustices of the Nazi period and the cruel and arbitrary abuse of state power. Article 16 acts as a limit on state power, 91 explicitly barring the state from revoking the citizen ship of Germans and obligating the state to care for the politically persecuted in the asylum right. The asylum clause acts to support a wider project within the Grundgesetz to counteract the deficiencies in the Weimar constitution of 1919, as it 90 The He imat Abroad: The Boundaries of Germanness Bridenthal, and Nancy Reagin (Ann Arbor, MI: The University of Michigan Press, 2005), 31. 91 Journal o f Refugee Studies 13, no. 1 (2000): 43 60.
31 addresses flaws which are often faulted for allowing the rise of the National Socialist state. 92 Arguments from the parliamentary council support the claim that Article 16(II)(2) aims to limit the power of the executive and curtail the resurgence of the poli ce state. 93 Just as German citizenship cannot be revoked, the framers sought to ensure that border guards would not prevent refugees from gaining protection in the Federal Republic. Chairman Schmid voiced the concern that decision making authority not be de legated to the border police or the foreign office [ Auswrtige Amt ], 94 given the recent horrors of the Nazi totalitarian state. Delegate von Mangoldt (CDU) claimed that such supervisory authority on the part of the border police would render the right to as ylum worthless. 95 Furthermore, by making asylum a constitutional right, and thus requiring the agreement of two thirds of both houses of federal parliament, the Bundestag and the Bundesrat in order to amend it, the drafters sought to prevent entrance decis ions being determined out of expedience or electoral caprice. 96 Not all delegates viewed the asylum provision as limiting state sovereignty, however. Chairman Schmid stated that the asylum right operated solely within the framework of public internat ional asylum provisions. 97 This vision of the right to asylum was based on the formulation from the editing committee, which stipulated that the 92 Kivist. 93 Bosswick. 94 Parlamentarischer Rat, 218 (18 th Session, 4 December 1948). 95 Schuster, 185. 96 Gibney, 89. 97 Parlamentarischer Rat, 218 (18 th Session, 4 December 1948).
32 im Rahmen d es allgemeinen Vlkerrechts ]. 98 This version views the asylum provision as a continuation of state practice. 99 According to this perspective, the asylum right would merely be a codification of customary extradition policies under public international law, me aning that the 1949 right to asylum would not alter German asylum practice nor would it add to international law provisions already in existence. The alternate version of Article 16(II)(2) proposed by Schmid would only give constitutional weight to the rig ht of political criminals not to be extradited, especially since this right was included as one of the Grundrechte or fundamental rights. 100 This formulation mirrors the asylum provision from the Herrenchiemsee draft of the Basic Law, which did not includ e a right to asylum, 101 but rather only protected foreigners who were unjustly persecuted from extradition. 102 The Herrenchiemsee draft provision was modeled after similar regulations in the Hessian and Bavarian constitutions. 103 Public international law at the time did not require states to take in persecuted persons or at the very least not to deport them until the 1951 Refugee Convention. 104 Contemporary public international law only dealt with the extradition of political criminals, and the principle of state sovereignty was placed well above that of individual human rights. Two principles of international law governed state action, namely that no state is obligated to extradite foreign nationals and that every state is 98 Tiedemann, 161. 99 Ibid. 100 Ibid., 163. 101 Kivist. 102 http://www.ve rfassungen.de/de/de49/chiemseerentwurf48 i.htm (accessed November 22, 2009). 103 Tiedemann, 161. 104 Ibid., 163.
33 entitled to expel and/or extradite foreig n nationals. 105 Those persons facing criminal prosecution in their home state, as long as they were not charged with assassinating a head of state, were commonly protected from extradition. Persons persecuted on the basis of their race, religion, nationali ty, or political persuasion but who were not charged with a crime in their country of origin were not covered by common extradition laws or practice. 106 Since the millions of refugees in the wake of World War II were not facing criminal prosecution, and ther e was no international law providing for the protection of such displaced non criminal persons, the bulk of the refugees in Europe would not fall under the protection of this alternate asylum clause. While defining asylum in relation to extradition subjective right eventually accepted came to mean not only that political refugees were protected against extradition, but that it was prohibited to reject asylum from political 107 Dr. von Brentano of the CDU thou ght it necessary to differentiate between protection from extradition and the right of asylum, although he also believed that the state should be able to expel a political refugee from its territory. 108 The ultimate version of the asylum right did not mention public international law constraints and at least some delegates to the convention were aware that the asylum provision was an innovative right rather than the mere continuation of previous state ticle 17 [the original asylum article] 105 Tiedemann, 162. 106 Ibid., 162. 107 Kivist. 108 Parlamentarischer Rat, 582 (44 th Session, 19 January 1949).
34 Artikel 17 ist etwas ganz Neuartiges ]. 109 After reaching a consensus on how to define the institution of asylum, the delegates turned to delineating the limitations of the asylum pro vision. The rights afforded political refugees under Article 16(II)(2) discussed during the debates centered mainly on so called economic rights, such as the right to work. The right to asylum privileges persons whose political and civil rights have been violated, while ignoring refugees deprived of other social and economic rights. The framers believed that political refugees could be easily separated from the so called economic refugees, 110 an issue which would later become problematic in the 1990s. Althou gh Article 16(II)(2) recognizes only political refugees as eligible, there was an understanding, at least among the socialist and communist delegates to the convention, that political and economic rights are connected to some extent. In the discussion of the material benefits of asylum seekers, delegate Renner (KPD, Communist party) explicitly stated that those individuals granted asylum in enjoy the right of asylum Politisch Verfolgte genieen Asylrecht einschlielich des Rechtes auf Arbeit ]. 111 das Asylrecht, wie es die Welt im allgemeinen kennt, beinhaltet nur das Aufenthaltsrecht ]. 112 Renner added that in the majority of countries with which he is familiar, the right to 109 Parlamentarischer Rat, 580 (4 4 th Session, 19 January 1949). 110 Kurthen, 924. 111 Parlamentarischer Rat, 582 (44 th Session, 19 January 1949). 112 Ibid.
35 asylum does not include the right to work. In his view, the German asylum provision should exceed other nati onal asylum provisions as well as international law. The experiences of German refugees informed the opinions of the convention delegates, as they took into account the difficulties that racially and politically persecuted Germans faced when trying to fin d protection abroad after the establishment of the National Socialist dictatorship. 113 Wagner (SPD) stated that those persons who fled often could not gain work permits to very bitter for the thousands who were abroad with a right to asylum but without the possibility of working and thereby of feeding themselves [ Aber es war sehr bitter fr die Tausende, als sie drauen war en mit Asylrecht, aber ohne die Mglichkeit, zu arbeiten und sich dadurch zu ernhren ]. 114 With only a right of residence, those granted asylum in Germany would be dependent on public welfare and the charity of private organizations. The delegates viewed wel fare as demoralizing and trusted to lawmakers to make adequate provisions so that asylum seekers could support themselves. 115 The restrictive economic potential of the asylum provision is offset by the fact that the drafters of the Basic Law refrained fro allowing for the possibility of admitting asylum seekers who adhere to an array of vastly different political ideologies. The delegates conflated the question of who was legitimately persecuted politically with the ques tion of who was a legitimate democrat, causing the relation between asylum seekers and democracy to be hotly contested during 113 Andreas Zimmermann, Das neue Grundrecht auf Asyl: Verfassungs und vlkerrrechtl iche Grenzen und Voraussetzungen Berlin: Springer Verlag, 1994. 114 Parlamentarischer Rat, 583 (44 th Session, 19 January 1949) 115 Ibid.
36 the debates. Various delegates proposed specific visions of democracy, emphasizing democracy as a way to define Germany in relatio n to other, Communist states as well as highlighting the humanitarian aspects of the liberal democratic tradition. extremely important for maintaining a democratic political culture in Germany. of self 116 The right of the citizenry to decide admission policy allows for communities of character historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common 117 Delegates to the parliamentary council envisioned that democracy could only be maintained by restricting membership to those individuals th oroughly committed to democratic principles. Yet, the right of the citizenry to decide membership according to such restrictive criteria is in tension with liberal commitments to universal human rights. 118 ctions on the asylum provision based proposal read: 1) No German and no politically persecuted foreigner may be extradited to an external government for persecution o r punishment. 2) Every German, who is persecuted due to his support for freedom, democracy, social equality or world peace, enjoys the right to asylum in the federal territory. 116 Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, Inc., 1983), 62. 117 Ibid. 118 For a discussion of the inherent tension between democracy and the liberal, humanitarian values embodied in constitutionalism, see Walter F. Murphy, James E. Fleming, Esq., and William F. Harris, II, American Constitutional Interpretation (New York: The Foundation Press, Inc., 1986).
37 1) Kein Deutscher und kein politisch verfolgter Auslnder darf einer auswr tigen Regierung zur Verfolgung oder Bestrafung ausgeliefert werden. 2) Jeder Deutsche, der wegen seines Eintretens fr Freiheit, Demokratie, soziale Gerechtigkeit oder Weltfrieden verfolgt wird, geniet im Bundesgebiet Asylrecht. 119 This version is ex tremely narrow in that it mandates that prospective asylum seekers must fact that it may only apply to those of German ethnicity. Guaranteeing foreign political disside nts an unconditional right to asylum posed certain risks and Dr. Fecht from the CDU summarized such concerns: who are politically persecuted in Italy. That could also carry over to other situations, involving people who are in their principles undemocratic. We could be compelled under the circumstances to take in masses of people who stand in complete contradicti on to our concepts and our laws. gentigt werden, Faschisten, die in Italien politisch verfolgt werden, bei uns in unbegrenzter Zahl aufzunehmen. Das liee sich auch auf andere Verhltn isse bertragen, wo es sich um Leute handelt, die nach ihren Grundstzen undemokratisch sind. Wir wren unter Umstnden gentigt, in Massen Leute aufzunehmen, die mit unserer Auffassung und mit unserem Gesetz vollstndig in Widerspruch stehen 120 An absolute, or unconditional, right to asylum would entail admitting anyone, regardless of their political persuasion. This allows for the possibility that both right and left wing extremists and political agitators could gain admittance to the state. Argume nts to restrict the right to asylum were thus based on political ideology as well as nationality or ethnicity. 119 Parlamentarischer Rat, 582 (44 th Session, 19 January 1949) 120 Ibid., 217 (18 th
38 commitment to democratic values would ensure that those who fought to secu re democratic principles or who were persecuted by a fascist or a communist government would enjoy the right to asylum in Germany. The framers envisioned access and inclusion in the new Federal Republic through asylum not according to ethnicity or shared c ultural ties, but according to an allegiance to the founding political principles of the fledgling state embodied in the Grundgesetz In the aftermath of the Nazi regime, the need to maintain a distinct, democratic political culture was more important than protecting ethnic purity. The parliamentary council debates illustrate this point quite clearly. While delegates did devote substantial attention to the fate of Germans in the eastern zone, soon to become citizens of the German Democratic Republic the primary fear concerning asylum seekers was not whether they would be German, it was whether they would be committed to democratic values. In admitting politically persecuted individuals into the s of far more concern than any ethnocultural bond with the deutsches Volk The fear of admitting fascists or other undemocratic political dissidents to the Brentano es mu die Mglichkeit gegeben sein, zwar einen Auslnder nicht auszuliefern, aber ihn wegen seiner gesamten staatsgefhrlichen Haltung des Landes zu verweisen ]. 121 121 Parlamentarische r Rat, 583 (44 th Session, 19 January 1949).
39 The ability to expel asylum seekers not only protects the state from unwanted obligations such as welfare support for refugees, but it also protects the state from being ob ligated to protect and support political malcontents who might seek to disrupt the fundamental political objectives of the state. Restricting the right to asylum based on the tion to its citizenry to maintain a stable political culture conducive to the workings of a democratic polity. If asylum were to be granted to persons with political views inimical to the workings of a liberal democracy, not only could it be construed as a threat to the state, adequately control entry. The asylum provision already marks a substantial limit on state e state to deny access to its 122 States typically do not recognize obligations to non citizens, but Article 16 of the Basic Law goes so far as to secure aliens, and in this case specifically non Germans, a constitutional claim to protection by th e German state, including access to the Federal Constitutional Court. Given the substantial political rights and privileges granted to asylum seekers, the delegates sought assurance that refugees would obey the political procedures and laws of the receivin g country. democratic commitments was part of the greater design of the Basic Law, which goes to great lengths to secure democracy. Article 21 regulates political parties, stating t hat all 122 Comparative Political Studies 30, no. 259 (1997): 273.
40 or abolish the free democratic basic order or to endanger the existence of the Federal 123 The Court views the role of the political parties in political will 124 The Court is entitled to exclude such parties from the political process if they reject democratic principles. 125 Article 18 provides for the forfeiture of basic rights, 126 That a refugee could lose the right to asylum if he or she demonstrated undemocratic political leanings indicates a clear prioritization of the preservation of democracy over liberal constitutionalism, as constitutional obligations to human rights would extend universal protection to all asylum seekers no matter their political persuasion. The vision of democracy contained in the Basic Law does not view plurality of political opinion and dissent as signs of a healthy democratic state, but rather maintains that in order to preserve a democratic p olitical culture, the citizens of the polity must be dedicated to democratic principles. Renner, the representative of the German Communist party at the convention, rson considers democracy is the opposite for Was der eine als Demokratie ansieht, ist dem anderen das Gegenteil ]. 127 The 123 German Basic Law, art. 21, sec. 1 2. 124 The Western Political Quarterly 10, no. 3 (September 1957): 539. 125 Ibid., 539 540. 126 German Basic Law, art. 18. 127 Parlamentarischer Rat, 584 (44 th Se ssion, 19 January 1949).
41 yet Renner points out that many nations, such as Spain, had claimed to be democratic despite obvious evidence of fascism. The ease of identifying democratic governments suffice. Typically, if the stat e were to grant asylum to an individual, it is because the pledged to protect victims of fascist governments and would most likely not, therefore, grant asylum to a person claiming persecution at the hands of a democratic government. Asylum is an extension of political protection to those who cannot claim it from their home state. A person fleeing a state with a developed civil rights regime and a demonstrated respect for t he rule of law is not usually thought of as a political refugee, governments guilty of political persecution complicates the question of entrance conditions based on political persuasion. membership in the German Communist party, a fact which generated palpable tension at the convention. Renner questioned whether refugees from the Ostzone or the easter n Soviet zone, should automatically be viewed as politically persecuted. 128 In a similar vein, he examined the asylum institutions of other model democracies, such as the United States, England, and France, referencing their entry restrictions on communists as problematic. 129 128 Parlamentarischer Rat, 584 (44 th Session, 19 January 1949). 129 Ibid.
42 One delegate questioned why Renner was present at the convention, implying that he should be in the Soviet east zone. The hostility on the part of the other delegates to an democracy is not open to dissent from leftist or rightist parties, belying the theory that democracy is enhanced by dissenting opinions and the spirit of political pluralism. Yet, delegates Wagner and Schmid advocated an unconditional right to asylum err in entrance decisions, democracy is actually furthered. This perspective reflects the universalistic humanitarian aspects of the liberal democratic tradition in relation to asylum, emphasizing the humanitarian element of the democratic narrative. The liberal interpretation of the asylum right envisions the creation of a haven for all who are politically persecuted as a sort of penance for the refugees created by t he Third Reich. Protection is afforded specifically to non citizens, ranking foreigners equally with co ethnics in the enjoyment and provision of basic human rights. The ultimate version of Article 16(II)(2) symbolizes a repudiation of the racist nationali sm of the Third Reich in favor of universal humanitarian norms and values, with the asylum provision acting as an 130 The provision serves to Reich. 131 Conventional state interests are restructured and humanitarian considerations are put before the material and the security related concerns of the state. Wagner argued passionately on behalf of an asylum righ t undiluted by conditions and prerequisites: 130 Schuster, 186. 131 Nathans, 235.
43 I believe one should be careful here with the attempt to restrict this right to asylum and to make the granting of it dependent on our own sympathy or antipathy and on the political attitude of he who comes to us. That would not be an unconditional right to asylum anymore, that would be a right to asylum with requirements, with conditions, and such a regulation would be in my eyes the beginning of the end of the principle of the right to asylum on the whole. Either we grant an asylum right, a right that, I believe, from a legal historical perspective, is ancient or we abolish it. Ich glaube, man sollte da vorsichtig sein mit dem Versuch, dieses Asylrecht einzuschrnken und seine Gewhrung von unserer eigen en Sympathie oder Antipathie und von der politischen Gesinnung dessen abhngig zu machen, der zu uns kommt. Das wre dann kein unbedingtes Asylrecht mehr, das wre ein Asylrecht mit Voraussetzungen, mit Bedingungen, und eine solche Regelung wre in meinen Augen der Beginn des Endes des Prinzips des Asylrechts berhaupt. Entweder wir gewhren Asyrecht, ein Recht, das, glaube ich, rechtshistorisch betrachtet, uralt ist, oder aber wir schaffen es ab 132 Delegates acknowledged that restrictions and condition s placed upon the right to asylum might be at odds with the liberal democratic tradition. Schmid questions whether or not a limited right to asylum is counterintuitive: I do not know whether one can limit the right to asylum to certain groups if one w ants to make it effective. The granting of the right to asylum is always a question of generosity, and when one wants to be generous, one must risk having made a mistake in a person in certain cases. That is the other side of it, and perhaps therein also l ies the dignity of such an act. Whenever one proposes a limitation, such as: yes to the right of asylum as far as the man is politically friendly or sympathetic to us, then one is taking too much away. Ob man das Asylrecht, wenn man es wirksam machen will auf bestimmte Gruppen beschrnken kann, wei ich nicht. Die Asylrechtgewhrung ist immer eine Frage der Generositt, und wenn man geners sein will, mu man riskieren, sich gegebenenfalls in der Person geirrt zu haben. Das ist die andere Seite davon, und darin liegt vielleicht auch die Wrde eines solchen Aktes. Wenn man eine Einschrnkung vornimmt, etwa so: Asylrecht ja, aber soweit der Mann uns politisch nahesteht oder sympathisch ist, so nimmt das zuviel weg 133 132 Parlamentarischer Rat, 582 (44 th Session, 19 January 1949) 133 Ibid., 217 (18 th Session, 4 December 1948).
44 According to Schmid, the asylum right has worth precisely because it does not seek to exclude refugees on the basis of their political leanings. Despite the need to protect and maintain the democratic tradition within a state, protecting those who are politically persecuted out of humanitarian considerations without prejudice is equally conducive to the legitimacy of the liberal democratic state. The ability of a generous asylum provision to legitimate the German state as a liberal democracy should not be overlooked. Article 16(II)(2) was no t necessarily crafted out of purely altruistic motives, as foreign policy considerations supported the inclusion of a constitutional right to asylum. Asylum can function as an ideological tool for states, allowing them to demonstrate their respect for poli tical and civil rights and thereby legitimate themselves as liberal democracies. 134 The legitimization of the state as a liberal Allies in the postwar years. The Allied Role in the Creation of a Postwar Ethnocultural Narrative Despite the explicit intent expressed in the Basic Law, and by the Allied forces, that Germany become a civic political nation and repudiate any notions of ethnic superiority, ethnocu ltural narratives of German political membership were perpetuated in two distinct ways. The first was that Germany never abandoned its restrictive citizenship laws, which were based on the notion of blood descent, and the second was that the Allies ironica lly reinforced ethnocultural understandings of German nationhood by mandating 134 Schuster, 34.
45 that all ethnic German refugees be granted citizenship in the Federal Republic. Both of these decisions supported the historical notion of the German Volk as an ethnic, cultural people rather than as people bound by common political allegiances. Prior to unification in 1871, Germany had historically been defined in relation to language and culture, or to a particular Volksgemeinschaft rather than with a territorially defined nation state. The unification of the various German states had lent German national membership a territorial dimension, however, and the people a dvocated by the Basic Law was a people based on political principles and a shared historical political tradition rather than nationality, although underlying ethnocultural conceptions of membership persisted. the purely p political 135 This ited group as much as a fictitious political entity needed to legitimize the very government of which it is a part. le as expressed in the Basic Law were simultaneously undermined by its citizenship law. German citizenship law at the time restricted political membership based on blood descent. The founders of the Basic Law did not abolish the ancestral citizenship princ iple of jus sanguinis, citizenship granted on the basis of blood, for that of jus soli citizenship granted on the basis of birth 135 Smith, 13.
46 within the territorial confines of a state. The 1913 Citizenship Law still in use in 1949 permitted Auslandsdeutsche or Germa n citizens living abroad, to pass on citizenship to their descendants at birth, but children of parents without German citizenship born on German soil do not automatically become citizens. 136 Article 16 thus poses an interesting mixture of membership stat uses, as it includes citizenship law does not apply to asylum. The symbolic ethnic meaning of citizenship is distinct from the symbolic political meaning of asylum. Asyl um marks the creation of a different kind of belonging in the German state, one that extends far beyond mere toleration and simply not being expelled to a declaration of the political values of the German community. The protection of German citizenship c ontained in Article 16(I) ensures that German citizens will not be persecuted by having their citizenship revoked. citizenship. Citizenship may be lost only pursuant to a law, and against the will of the 137 The original Article 136 Paul A. Harris, "Imagined Identity: Immigration, Ueberfremdung, and Cultural Chauvinism in German Far Right Partisan Discourse. German Policy Studies 1.3 (September 2000): 331. Expanded Academic ASAP. Gale. University of South Florida. 23 Sept. 2009
47 right to asylum, which is the only clause in Citizenship and asylum were initially separated into two articles, with asylum addressed in Article 17. The delegates debated combining the two articles and eventually did so, perhaps as a result of their inability to agree on whether asylum applied to Germans. The combination of the two articles could also suggest that the d rafters considered the extension of asylum to be equally important as preventing the denaturalization of citizens, despite the priority often given citizenship by the state over other forms of political and legal status. 138 The second way in which ethnocu ltural narratives of German national identity persisted is through postwar Allied policy. Although the Allies mandated the creation of a Germany founded on civic principles of membership, Allied actions in the immediate postwar period contributed to the co nsolidation of an ethnic understanding of political membership. The Allies simultaneously required a rejection of Nazi ideals of ethnic millions of ethnic German refugees. Germany had to cope with the multitude of ethnic German refugees who migrated to its territory as well as address its own part in the creation of stateless persons during World War II. Ethnic Germans from Eastern Europe faced discrimination during the last 138 Dani Migrationsrecht.net, http://www.migration srecht.net/european immigration migration law/619 citizenship german nationality through naturalisation.html (accessed February 13, 2010). Citizenship was never suggested by any of the delegates as a right or privilege of those granted asylum. However, fo llowing the 2000 Nationality Act and the 2005 Immigration Act, individuals granted asylum under Article 16a as well as recognized Geneva Convention refugees can apply for citizenship after a shorter period of time; 6 years instead of 8.
48 years of the Nazi regime and immediately after the war. Twelve million ethnic Germans, an estimate for the period 1945 1950, either fled or were displaced from the eastern territories of the Third Reich and those territories formerly occupied by t he German Wehrmacht such as Poland, the Baltic states, Bohemia, Moravia, Slovenia, Serbia, and the Ukraine. 139 In Poland alone seven million ethnic Germans and former German citizens were expelled with Allied approval. At the Potsdam Conference, the Al lies called for the massive resettlement of the 12 million ethnic German expellees to within the new borders of occupied Germany. 140 Between 1945 and 1950 almost 65% of these ethnic German refugees were resettled in West Germany, while about 32% were resettl ed in Soviet controlled eastern Germany. 141 Significant migration within Germany during the occupation period also occurred, as 1.3 million people moved from the Soviet occupied zone to the three Western zones as well as the Western parts of Berlin. 142 The mas s expulsion of ethnic Germans and their concentration in the western zones of occupied Germany dwarfed the mass resettlement of ethnic Germans that had taken place under Hitler. The Nazi regime had attempted to bring as many ethnic Germans, or Volksdeutsch e into the Third Reich as possible, many of whom were used in the Wehrmacht 143 Ironically, Allied policy and post war migration 139 Fassmann and Mun z, 521. 140 Harris. 141 Fassmann and Munz, 523. 142 Kurthen, 920. 143 Dietrich Thranhardt, "Tainted Blood: The Ambivalence of Ethnic Migration in Israel, Japan, Korea, Germany and the United States. German Policy Studies 1.3 (September 2000): 273. Expand ed Academic ASAP Gale. University of South Florida. 23 Sept. 2009.
49 flows created a nation that was ethnoculturally homogenous to an extent that exceeded even the wildest hopes for racial purity h eld by the Nazis during the Third Reich. 144 Many of the responsibilities Germany held toward persons of German descent in Europe and the legal categories used to define them were thrust upon Germany by foreign powers during post war negotiations. At the end in the creation of so many of the refugees caused international organizations to assign the burden of caring for these displaced people to Germany. The United Nations and the International Refugee Organization (IRO) s eparated German and non German refugees, with the IRO claiming responsibility for the non German group, and designating Germany as solely responsible for the fates of German refugees. 145 Germany was left by the Allies to deal with its co ethnics on its own, since the Allied forces believed that the victims of the Nazi regime deserved assistance before persecuted or expelled Germans. 146 of German racial identity which only c onfirmed the ethnocultural and racial theories used 147 Virtually all of the refugee laws enacted between 1945 and 1956 dealt with categories of German refugees, such as the Sudeten Germans, Baltic Germans, Russian Germans, Germans from Poland, and Soviet zone refugees. 148 The Allies also mandated that all of the ethnic Germans forced upon Germany should be granted citizenship. Article 116, the constitutional law providing for the 144 Kurthen, 918. 145 Senders, 160. 146 Ibid. 147 Ibid., 162. 148 Ibid., 160.
50 automatic granting of citizenship to Vertriebene ethnics made 149 In an effort to guarantee the integration of ethnic Germans, who were often culturally and linguis tically dissimilar from the native population, the U.S. Military Government ordered Article 116 to be added to the Basic Law to afford resettled ethnic Germans automatic citizenship: be granted German nationality with full civil and political rights ...." 150 Article 116 also extended a rule. 151 by forced resettlement or by redrawn borders after unconditional surrender, using the 1937 borders of the Reich. Additionally, Article 116 provides for the Aussiedler a term used until the fall of the Soviet Union in 1990 to designate ethnic Germans who relocated to the Federal Republic of Germany from areas outside the pre 1945 borders of the former Third Reich 152 Although Article 116 of the Grundgesetz offspring of former citizens or expellees. 153 Article 116 is often cited as proof of the vlkisch undercurrents at play in the structure of German citizenship policy. Through Article 116, West Germany extended citizenship not only to the Reichsdeutsche 154 b ut also to the Volksdeutsche non citizen 149 Senders, 149. 150 Thranhardt. 151 Joyce Marie Mushaben, The Changing Faces of Citizenship: Integration and Mobilization Among Ethnic Minorities in Germany (New York: Ber ghahn Books, 2008), 31. 152 Ibid. 153 Ibid., 91 92. 154 This term originally pertained to citizens of Imperial Germany living within the borders of the German Empire established in 1871 and was later used to refer to Germans citizens who were
51 ethnic Germans born outside the Reich. 155 While there was a preexisting political bond between West Germans and the Reichsdeutsche the basis for extending national membership to the Volksdeutsche was purely ethnocul tural. Removed from the context of post war Europe, in which Germany attempted to 156 eign policy decisions, the article certainly appears to exhibit the vestiges of Nazi vlkisch nationalism. Yet, Germans were consistently defined in an ethnic sense by the Allies during post war negotiations and resettlement was promoted as a containment s trategy, as "the Allies wanted integration of the German expellees from the East, to avoid any revisionist activity against the new borders in the East." 157 Rather than viewing Article 116 as the consummate expression of vlkisch nationalism, the article sho uld be seen as an effort on the part of the Allies to make the German cultural nation coterminous with a political state. Considering the right to asylum in the light of Article 116, one could surmise that Article 16(II)(2) does not need to provide asylum specifically for ethnic Germans, since they are afforded automatic citizenship in Article 116 and thus are already fully protected by the German state. Article 116 certainly provides a convenient channel for German ethnocultural commitments, and des pite the fact that the article was mandated by the living withi n the pre 1938 borders of Germany (i.e., prior to the annexation of Austria and the Sudetenland). This category included Germans who had been born prior to May 1945 and had been living in the former German territories east of the Oder Neisse line that were incorporated into Poland and Russia after World War II (Silesia, Pomerania, East Prussia). 155 Brubaker, 168 169. 156 Mushaben, 92. 157 Harris.
52 Allies, one cannot ignore that it has contributed strongly to the construction of an ethnocultural understanding of postwar German identity. expulsion of ethnic Germans from Eastern Europe and the Soviet Union, and the imposed division of 158 s promised to guarantee national stability, identity, and continuity in times when Germany was still 159 The act of rebuilding the war 160 The resurgence in nationalist sentiment after the Second World War was colored by memories of a previous fervor wherein nationalists denied immigration and cultural diversity. 161 Increased nationalism laid the groundwork for a national mindset closed to the concept of multiculturalism. Despite Allied policy regarding ethnic Germans after the Second World War, the problems Germany experienced with the integration of foreigners and the resurgence of ethnocultural narratives regarding political membership in the 1990s cannot be wholly, or ethnic Germans after the war is that they completely defy the logic of creating a civic political pe ople; however the Allies did not dictate future ethnocultural interpretations of German national identity. It is possible, however, that Allied policy inadvertently reinforced the ethnic and cultural concept of the Volk in defining membership, as 158 Brubaker, 168. 159 Kurthen, 930. 160 Ibid. 918. 161 Ibid., 917.
53 ethnocult ural arguments in favor of restricting asylum at the parliamentary council were minimized due to the deep humanitarian debt owed by the German state as a result of the Nazi dictatorship. Allied policy could have reintroduced tensions between liberal and et hnocultural commitments by forcing ethnic Germans on a direct path to German citizenship. The vision of Germany as a monocultural nation without non German immigration created lingering social and political problems. Germany was obligated to symbolically e mbrace ethnic German immigrants while enduring heavy non German immigration that the state tried to deny, leading to contested conceptions of German political membership.
54 Chapter II: The 1993 Asylum Debate Introduction The proposal to amend the Basic Law was introduced on January 21, 1993 and approved by the Bundestag on May 26, 1993 by a vote of 521 132. Two days later the amendment passed the Bundesrat and went into effect on July 1, 1993. The parliamen tary debates were highly controversial, not only among parliamentarians, as evidenced by the hour running time on May 26, but also publicly, as the Bundestag was 162 The came about when the SPD finally capitulated and agreed to back the amendment in a political turn around known as Die Petersberger Wende 163 The SPD votes decided the passage of the amendment, with the resulting supermajority effectively m andating a change in the law. 164 The SPD agreed to back the amendment given that certain concessions be met, such as the introduction of an annual quota for Aussiedler and the liberalization of nationalization requirements for foreign nationals born on Germa n soil. The number of Aussiedler was capped at 1991/1992 levels, at approximately 225,000 repatriates per year. Civil war refugees were also 162 Steiner, 65 and 85. 163 Schuster, 2 12. 164 American University Journal of International Law and Policy 9, no. 4 (S ummer 1994): 105.
55 removed from the asylum process and a special temporary protection status was created for refugees from war zones. 165 The amendment replaced Article 16(II)(2) of the Basic Law with Article 16(a). 166 preserved from the original article but Paragraphs two through five delineated re strictions placed upon the constitutional right to asylum. Paragraph two states that the right to Communities or from a third country where the application of the Conventi on Relating to the Status of Refugees and the European Convention for the Protection of Human Rights 167 Paragraph three allows the ebuttable Paragraph four discusses deportation measures and paragraph five recognizes treaties relating to asylum made between European Union states or between an EU state and a third state. 168 Article 16(a) thus akes account of the common European asylum policy in the context of the Schengen h established EU asylum policy. 169 Despite the political compromise, the 1993 amendment remained controversial as it introduced numerous restric tions on the entry of asylum seekers, thus negatively Specifically, t 165 Bosswick, 49. This status was implemented for the first time for refugees from Kosovo in 1999. 166 For the full text of Article 16 of the Basic Law, see Appendix 1. 167 For a list of EU member states by entry date, see Appendix 4. 168 Se e Appendix 3 for the European Union treaties, conventions, and initiatives related to asylum and immigration enacted prior to 1993. 169 The American Journal o f International Law 88, no. 2 (April 1994): 363 364
56 third states or any EU state or state party to the Refugee Convention or the ECHR, as ou as determined by Parliament. Non EU states Switzerland, and the Czech Republic. 170 Most importantly, according to this definition, Germany is surround Republic by land has technically passed through a safe state in which they could have made their claim. 171 Since almost 90 percent of all asylum seekers in Germany reach its borders through a ne ighboring state, most applicants for asylum would not even be considered under the new law. or asylum in those states rather than Germany. 172 refoulement as it is assumed that the safe third state, since it abides by the Refugee C onvention and the ECHR, will not deport asylum seekers to a state where they could face persecution. A substantiate their claims to political persecution upon arrival or face deportation. The list o f safe countries of origin includes Hungary, Bulgaria, the Czech Republic, Poland, Romania, the Slovak Republic, Gambia, Ghana, and Senegal. 173 According to Blay and non military, 170 Senders, 169. 171 For a map demonstrating the states bordering Germany, see Appendix 5. 172 Blay and Zimmermann, 369 and 365. 173 Senders, 169; Blay and Zimmermann, 373.
57 govern ments as well as multiparty systems and independent judiciaries, and are thus The constitutionality of the new amendment was challenged by various asylum seekers who specifically disputed Court [ Bundesverfassungsgericht, BVerfG ] upheld the constitutional change, however, on May 14, 1996. 174 restrict the asylum right and place Article 16 asylum status definitively beneath Geneva Refugee Convention re fugee status, leading critics to asylum right under Article 16(a) meets the standards of refugee protection provided for in international law. 175 In this chapter, I will examine the development of the asylum debate in the early 1990s. The attempt to make the Federal Republic of Germany into a civic political people in 1949 was not entirely successful, and ethnocultural narratives of German nati onal identity resurfaced as Germany experienced considerable economic and political difficulties. I analyze the ways in which political entrepreneurs constructed the asylum debate to form economic, ethnocultural, and political narratives about German natio nal identity leading up to the 1993 amendment. 174 Reinhard Marx and Kathari A Basis for Burden International Journal of Refugee Law 8, no. 3 (1996): 419 422. The Court referred to two major cases from among the multiple individual complaints to reach their verdict: 2 BvR 1938/93 and 2 BvR 2315/93. 175 For a comparison of Article 16(a) asylum status and the rights afforded under the Geneva American University Journal of International Law and Policy 9, no. 4 (Summer 1994): 159 179; Blay and Zimmermann; and Tiedemann.
58 entrepreneur utilizing a controvers ial issue to gain political support. The section focuses on the general economic and political situation of Germany in the early 1990s and the construction of asylum as a threat to the Federal Republic. The second section develops the economic narratives a ssociated with asylum seekers. I discuss the economic costs posed by various groups of immigrants and detail how asylum seekers were constructed understanding as a nation. In t he third section, I discuss the ethnocultural dimension of the 1993 asylum debate, focusing on how ethnocultural narratives of German identity The problems of xenophobia and the resistance to a multicultural German state reflect how ethnocultural stories can be attached to legitimate concerns about public welfare and integration. commitments to dem ocracy and its liberal commitments to human rights. This tension is two fold, involving whether Germany should prioritize democratic obligations over universal, humanitarian commitments and whether the asylum problem should be resolved at the national or i nternational level of government. The 1994 Elections and the Construction of the Asylum Threat The German government under Chancellor Helmut Kohl certainly turned the sudden explosion of asylum applications in the early 1990s to its advantage, utilizing the historically been made into an election issue in what Virginie Guiraudon terms the
59 176 For the past 20 years, except in t he year 1983, asylum had been a major election issue and debate usually resulted in a tightening of the asylum law. The 1994 German federal election was of exceptional importance, as it was the first nationwide election since the Fall of the Berlin Wall an d German reunification. The conservative Union parties had been in power in Germany for ten years and the incumbent government was concerned about voter apathy and needed an election issue to motivate voters as well as to discredit the opposition parties ( such as the SPD). The Kohl administration had been blamed for the economic recession and it was problematic for the conservatives to concentrate solely on economic issues. Asylum was problematized in order to deflect attention from economic issues and to d amage the position of the SPD, which staunchly supported the right to asylum. 177 The government hyped the threat posed by asylum seekers, with Chancellor Kohl stemme d immediately. A commentary in Der Spiegel spoke derisively of the unemployment, the ho using shortage, and right wing violence. 178 capacity to absorb refugees had been reached. 179 National security concerns restructured 176 Citizens: France, Germany, and the Chall enge to the Nation State: Immigration in Western Europe and the United States ed. Christian Joppke (New York: Oxford University Press, 1998), 290 293. 177 Schuster, 202 and 251 252. 178 Ibid., 208. 179 Ibid., 180.
60 the asylum debat e, divorcing the right from its traditional foundation in human rights. 180 In this way, asylum seekers were specifically targeted as a scapegoat for the Federal 181 asy lum rhetoric reflected larger anxieties over immigration and the economy and connected those issues to concerns about who was a legitimate member of the German community. German government f elt pressured to amend the asylum right of the Basic Law due in part, to the immigration explosion that occurred in the early 1990s and the popular backlash against the hundreds of thousands of asylum seekers who arrived in the Federal Republic Despite t avowed position against immigration, Germany received two thirds of all asylum applications submitted to EU countries in the 1980s and 1990s. 182 Increases in the number of asylum applicants tended to coincide with conflicts abroad, reflecting Ger applications rose from 1,906 in 1953 to 16,284 in 1956 following the invasion of Hungary. Applications peaked again in 1969 after the Prague Spring, totaling 11,664, and 180 e Europeanisation of German asylum policy and the presented at the European Union Studies Association [EUSA] conference, Montreal, CA, May 2007). 181 Krell et a l., 164. For further discussion of the scapegoat mechanism as applied to foreigners, International Migration Review 27, no. 4 (Winte r 1993): 850 869. 182 Gibney, 97.
61 spiked agai n in 1980 at 107,818 following martial law in Poland. The breakup of the Soviet Union and the war in Yugoslavia prompted a further dramatic growth in applicants, increasing from 193,063 in 1990, to 256,112 in 1991 and to a peak of 438,191 in 1992. 183 Incr eases in asylum applications also occurred following the institution of the Anwerbestopp [an end to the active recruiting of foreign labor] in 1973. The number of asylum claims increased from 5,595 in 1973 to 9,424 in 1974. 184 After the Anwerbestopp, asylum was the only legal avenue for entry into the Federal Republic and it was an especially attractive alternative given the fact that asylum seekers were allowed work permits prior to 1985 and were also eligible for welfare benefits. The number of East Eur opean Aussiedler and post Soviet Sptaussiedler able to claim citizenship under Article 116 also increased from 78,498 in 1987, to 377,042 in 1989 and 397,067 in 1990. 185 All in all, the Federal Republic of Germany absorbed three million new migrants between 1989 and 1992. Such mass asylum seeking overburdened to the steady, relatively meager, flow of refugees during the Cold War era. 186 Mass asylum seeking also caused th of asylum. The problem of separating political refugees from economic migrants began when the origin of asylum seekers began to change in the mid 1970s after the world oil oil crisis asylum 183 Mushaben, 129 and 130. 184 Joppke, 276. 185 Mushaben, 89. 186 Joppke, 279 and 261.
62 Euro pean asylum seekers increased from 7% in 1968 187 The presence of millions of asylum seekers from Third World countries led to the perception that the institution of asylum was being abused by dard of living in the Federal Republic. The growing perception that asylum seekers were predominantly economic migrants could explain the steady fall in recognition rates of asylum seekers. The increase in asylum seekers from about 1970 to 1990 saw a cor responding decrease in recognition rates. Refugees recognized according to the Convention (including those recognized under Article 16) fell from nearly 80 percent in 1971 to about 11 percent in 1981, increasing to approximately 29 percent in 1985, but the n falling again to less than 5 percent in 1990. Asylum seekers were also arriving in a period of severe economic hardship for the FRG. The Fall of the Berlin Wall in 1989 and reunification in 1991 shocked the German state infrastructure considera bly. The housing deficit rose to 2.5 million homes in 1991 from 1 million in 1988. The number of unemployed totaled 900,000 in the new eastern Lnder alone, and the number of homeless in the Bundesrepublik as a whole had risen from 40,000 in 1988 to over a million in 1991. 188 The cost of shoring up the East German economy was staggering; after 1990 West Germany transferred approximately 187 Joppke, 276. For an analysis of the number of asylum applicants to Germany, including countries of origin and recognition rates, until the year 2004, see Hans Zeitschrift fr Auslnderrecht und Auslnderpolitik 6 (2005): 190 195. 188 Schuster, 197 and 206.
63 DM 150 billion, or 5 percent of its GNP, to the eastern Lnder each year 189 A 7.5 percent and corporate income taxes was imposed in July of 1991 to aid in financing the substantial burden. 190 In addition to the increased migration of ethnic Germans to the Federal Republic there was significant East West migration within Germany as well. Ap proximately 340,000 bersiedler former citizens of the now obsolete German Democratic Republic, migrated to West Germany in 1990. 191 Between 1989 and 1993 about 1.4 million East Germans and East Berliners settled in West Germany. 192 As part of the policy of b urden sharing within the Federal Republic, the reunification treaty of October 1991 allotted 20% of all new asylum seekers to the economically depressed eastern Lnder 193 The maintenance of asylum seekers aggravated an economy already struggling to support its own citizens. The dissolution of the Soviet Union and the subsequent relaxation of exit controls also meant that roughly 2.5 million ethnic Germans living in the former USSR could travel to Germany and claim full citizenship rights under Article 116. 194 The dramatic rise in Aussiedler bersiedler and asylum seekers coupled with the housing shortage and increasing unemployment led the German government to prioritize its migrant groups. Not only did the strained economic situation force these groups in to competition with each other, but German citizens also began to feel as if they were vying with refugees and repatriates over scarce resources. Xenophobic sentiment, fueled by the 189 gether Again: The Fiscal Cost of German The Brookings Review 13, no. 2 (Spring 1995): 42. 190 Publius 28, no. 4 (Autumn 1998): 142; Heilemann and Reini cke, 44. 191 Joppke, 279. 192 Kurthen, 920. 193 Joppke, 279. 194 Schuster, 181.
64 far Right, led to a surge of attacks on asylum seekers and foreigners in g eneral in the early 1990s. By 1992, the radical Right in Germany was responsible for about 2,000 attacks on foreigners, the most brutal and publicized events being the September 17, 1991 attack in Hoyerswerda and the August 24, 1992 attack in Rostock. 195 A 1 992 poll seekers 196 and many politicians spoke of the necessity of restricting the right to asylum in order to curb further xenophobic violence. The ultimate decision to restrict the constitutional right to asylum was justified as additional asylum seekers would reduce the cost of maintaining applicants, many of whom were consider genuine applicants. Increasing social security costs induced the German government to were easier to le gitimize than reduced payments for citizens, and would be met with far less resistance. 197 The Economic Dimension of the 1993 Asylum Debate Economic concerns were stated much more explicitly in the 1990s than they were in the 1949 debates on as ylum. The concern raised by politicians over the financial burden of asylum seekers was in response to real economic hardship, but the economic 195 Steiner, 65. 196 Gibney, 102. 197 Schuster, 206.
65 debate also exposed the symbolic import of economic privileges to the German citizenry. The presence of hundreds of thousands of asylum seekers raised serious concerns among the disadvantaged portions of the population as to the allocation of welfare benefits, thereby jeopardizing the particular German economic identity developed after the Second World War. T he post World War II Federal Republic was in no position to guarantee broad welfare rights, but Germany in the 1990s had an economy strong enough to provide substantial material benefits to both citizens and non nationals. While the drafters of the Ba sic Law expected abuse of the asylum right to be rare and that political refugees could be readily distinguished from economic migrants, 198 in the early 1990s the state suspected to the detriment of both German citizens and genuine political refugees. While Western states regard the provision of asylum as an extremely important indicator of their commitment to humanitarian principles, they also expend significant time and resour ces in the effort to guarantee that as few asylum seekers as possible are granted protection. An examination of the rights and privileges afforded asylum seekers in Germany helps to explain why the state might jealously guard its asylum right from those it deems disingenuous. The Federal Republic of Germany was structured as a democracy with a Sozialmarktwirtschaft 199 Germany has a strong tradition of welfa re provision, and welfare 198 Kurthen, 924. 199 Schuster, 190.
66 currently consumes about 30 percent of GDP. 200 Asylum seekers are not excluded from the welfare system and are generally fed and housed by the government for the duration of the asylum process. Application and decision procedures, i ncluding the appeals process, took an average of three to four years prior to the amendment. 201 Even when an Germany than with a standard residence permit. 202 The tota l cost of providing housing and social services and of processing the asylum claims was estimated in 1991 to be US $1.9 billion a year. 203 In 1992, the Bundestag related costs exceeded DM8.27 billion, or US $5.36 billon. 204 Sinc e prior to the amendment only about 4 percent of applicants were recognized in the first instance by the Federal Office for the Recognition of Refugees with another 2 to 3 percent recognized by court decisions following appeal, the Federal Republic was sp ending billions of dollars on asylum seekers who were ultimately rejected. 205 One could assume that t he state simply cannot justify classing asylum seekers as equals with citizens in the d istribution of welfare benefits, especially given the added eco nomic commitments created during reunification. Hostility directed towards asylum seekers arose mainly from the sense that asylum seekers unjustly received government aid at the expense of German citizens in need. Especially in the eastern Lnder where mo 200 Schuster, 190. 201 Blay and Zimmermann, 362. 202 Senders, 168. 203 Gibney, 86. 204 Didden, 1 03. 205 Blay and Zimmermann, 362.
67 against people belonging to the lower third or quarter of society, who defend this standard of living by virtue of nation 206 Criti cs of the asylum policy certainly did have a number of valid concerns. some evidence that the asylum system truly was being abused. Fingerprinting of asylum seekers b egan in 1993 and revealed 33,500 multiple applications for asylum in the first year of implementation. 207 Other countries also advertised the German right to asylum, encouraging their nationals to take advantage of the opportunity to emigrate. Turkish newspa way airfare and legal instructions on applying for asylum in Germany, emerged as a new market in South Asia. 208 Despite the increasing costs of sup porting an asylum system clearly subject to abuse, there are substantial problems with the argument that the 1993 amendment was only in response to the financial burden posed by asylum seekers. The state practiced a policy of deterrence even when the pract ice of discouraging asylum seekers also incurred great expense. Efforts to deter asylum applicants have naturally taken the form of welfare cuts and restrictions on work permits. 209 In the 1980s the government increased the waiting time for work permits for asylum seekers from one to five years. Other deterrence measures included housing applicants in camps in order to restrict their 206 Fremdenangst und Fremdenfeindlichkeit ed. Mechtild H. Jansen and Ulrike Prokop (Basle: Stroemfeld, 1993), 13 28, quoted in Krell et al., 162. 207 Bosswick, 50 208 Joppke, 277. 209 See Appendix 2 for further information on German asylum practice from 1949 to 1993.
68 freedom of movement and substituting vouchers or goods in kind for cash benefits. 210 The latter was done even though the use of v ouchers or goods in kind is more expensive and less efficient. 211 Welfare to asylum seekers was cut by the SPD Green governing 212 Federal and state governments have also invested considerable resources in a deportation system that is so efficient that the state of Bavaria could boast a 252 percent increase in deportations in the first six months after the 1993 amendment. New state bureaucracies were created to handle the deportations and public funds were allocated to pay for the deportation process and enhanced border controls. 213 Not only does Germany seek to deter those refugees it deems economic migrants, it has also discouraged the migration of e legal commitments to ethnic Germans as stipulated in Article 116, Germany attempted to prevent additional Aussiedler under Chancellor Kohl pledged financia l support for the creation of an independent republic for ethnic Germans in the Volgograd region of the former USSR. The the region, numbering almost one million, from repatr iating to Germany. The cost of resettling Aussiedler 214 210 Gibney, 100; Schuster, 247. 211 Schuster, 247. 212 Ibid., 247 and 255. 213 N ew German Critique no. 64 (Winter 1995): 80 82. 214 Gibney, 99.
69 sts but rather the deterrence of migrants, ethnic German and non German alike, in order to preserve economic social benefits for its own citizenry. Moreover, deterrence measures do not follow a rational economic calculus, as the state accepts additional ex penses even in times of economic strife in order to implement its anti immigration policies. Niklaus Steiner states that one might expect the acceptance rate of refugees to increase or decrease along with the economic stability in a country. However, in a comparison of the unemployment rates and the number of asylum recipients in Germany, Switzerland, and Great Britain between 1983 and 1995, the two factors do not correspond. The granting of asylum does not follow a simple economic cost/benefit analysis, an d Steiner concludes 215 Post World War II Germany experienced tremendous economic successes an d economic prosperity became increasingly symbolic for German national identity, forming the basis of German national pride. Political identification with the state has been problematic given the absence of a popularly ratified constitution and national sh ame over the Nazi past. In light of the deep political apathy of the post 1945 generation, loyalty to the state was largely connected to material prosperity. Nationalism based on the greatness of the German state had been replaced by trust in capitalism an d pride in deutsche Wertarbeit ]. 216 [ Wirtschaftswunder ], or the rapid reconstruction and development of the West German 215 Steiner, 6. 216 The Transformation of Sacrifice: German Identity Between Heroic Pain and Prosperity: Reconsidering Twentieth ce ntury German History ed. Paul Betts and Greg Eghigian (Stanford, CA: Stanford University Press, 2003), 130 133.
70 economy in the postwar years, based o n economic prosperity and social welfare, which rejected any connection with the 217 The economic recession in the 1970s destabilized the German economic narrative, however. Heightened concerns regardin g the cost, and the legitimacy, of immigration in turn led to hostility and even xenophobic attacks on foreigners and asylum seekers. 218 The perception that citizens had been slighted economically in respect to outsiders posed major social and political prob lems for the state and led to the depiction of asylum seekers as deceptive and undeserving. Public resentment over the perceived abuse of the asylum right led to the coining of the derogatory expressions Scheinasylant [pse udo asylum seeker], Wirtschaftsasylant [economic refugee], Asylmissbrauch [asylum misuse], and Asylbetrger [asylum con men]. The term Asylant [asylum seeker] itself has a negative connotation, as it is morphologically related, via the ant ending, to word s such as Ignorant, Querulant, and Simulant [respectively, ignoramus, grumbler, and malingerer]. The connotation of Asylant in public discourse stands in stark contrast to the word Flchtling [refugee, or fleeing person]. 219 The distinction between th e terms Asylant and Flchting developed an ethnic cast, with Asylant 1970s onward skinned, non European masses, merely feigning their need for 217 Anna Triandafyllidou, Immigrants and National Identity in Europe (New York: Routledge, 2001), 71. 218 Ibid., 72. 219 Mattson, 63 67. The term Asylant have been a logical linguistic assimilation to other Latinate forms ending in ant ent ient
71 220 The term Flchtling came to be associated with light skinned Europeans who were fleeing persecution, typically Communist oppression in the eastern bloc. Major political parties contributed to the portrayal of asylum seekers as con men and opportunists who were stealing from honest tax payers. Klaus Landowsky, former begging, cheating, and stabbing people, and then when they are arrested, because they 221 Acco rding to the Bundestag a rape cases attributed to asylum seekers in 1992. 222 When not directly accused of murder and theft, asylum seekers were depicted as generally disreputable people. During the 1993 parliamentary debates, Fuchtel (CDU) challenged opponents of the amendment: w who is ashamed of going to the 223 Unfortunately, the fear of real and imagined abuse of the right to asylum by economic migrants fleeing poverty rather than political persecuti on led to the restriction of the asylum right for thousands of other genuine refugees. The popular backlash against asylum and immigration also resulted in violent attacks against both foreign residents and asylum seekers. 220 Mattson, 64 65. 221 Schuster, 207. 222 Didden, 102. 223 Steiner, 86.
72 The Ethnocultural Dimension of the 1993 Asylum Debate A strong connection exists between economic insecurity and xenophobia. Citizens often blame foreigners for economic problems 224 and they are often legitimated, at least in part, by the government. Xenophobic attacks across the Fede ral Republic and the rise of the far Right in the early 1990s incited fear of the possible breakdown of democracy in Germany. Rather than blaming and castigating the attackers for wanton acts of racism, the state in part yielded to the extremism of the far Right, allowing it to color the national position on asylum. 225 Klose (SPD) argued during the 1993 parliamentary debates that: The people who live in areas with high numbers of asylum seekers are not xenophobic, but their standard of living is dropping in an often dramatic manner; they feel themselves threatened, personally and socially. It would not be right to deny this, and it would be dangerous to stand idly by and let things go on. In the end, this is my very real fear: it threatens the stability of o ur democracy, especially because the temptation is great to exploit politically these problems and fears. We democratic parties have nothing to gain from this situation that only helps the pied pipers of the right ( Rattenfngern von rechts ). 226 argument illustrates the fact that the hostile acts of the citizenry stemmed from economic pressures rather than an innate xenophobia. He criticizes the far Right for turning economic concerns into fuel for xenophobic action, but ironically, other right extremist party Die Republikaner ) practically condoned the attacks. Edmund Stoiber asylum is creating unrest and anger in the population, and thereby the basis for toleration 224 Schus ter, 246. 225 Harris. 226 Steiner, 86.
73 227 In response to the community sanctioned violence in Rostock, Dieter Heckelmann (CDU) argued that communi 228 229 turing and resolution of the asylum debate is questionable. Rather than being an unequivocal grassroots movement against asylum, as the xenophobic attacks in Rostock and Hoyerswerda might indicate, popular dissatisfaction with asylum and the image of the c riminal asylum seeker is more likely a 230 Certain segments of the German population who harbored the most distrust and ill will towards asylum seekers were those 231 An examination of the rhetorical posturing on the part of the media and politicians helps explain how asylum seekers could be blamed for their own deaths rat her than the neo Nazis who attacked them. This puzzling contradiction makes slightly more sense when considered in light of the high level of xenophobia thought to be appropriate, or at 227 Schuster, 208. 228 Ibid. 229 Didden, 104. 230 Mattson, 68. 231 Ibid.
74 least normal, in German national public discourse. berfremdung [over foreignization] is a term that was unabashedly employed by the conservative parties in the early 1990s and in the parliamentary debates. In this ethnocentric understanding, the invasion of Germany efugees, veritably goaded the citizenry to xenophobic acts of violence. Steiner details how previous parliamentary debates on asylum did not involve the use of terms such as berfremdung probably due to the delicate nature of such an argument given German 232 The idea of a multicultural German society is, unsurprisingly, colored by the same distrust of foreigners and fear of the disintegration of a fabled ethnic purity. Stoiber durchrass te Gesellschaft [mongrelized society] and Streibl, former Prime Minister of Bavaria, equated it to a multikriminelle Gesellschaft criminal society]. 233 past dea lings with ethnicity. The specter of the Third Reich prevented any tampering with sacred 234 historical l 235 During the parliamentary debates, only Briefs (unaffiliated) mention ungeheuren historischen Schuld Deutschlands 232 Steiner, 88. 233 Schuster, 243. 234 Joppke, 274. 235 Ibid.
75 which German society and the German state consciously stood by and dealt in a significant way with the 236 Instead, the national conservative parties incorporated Fremdenfeindlichkeit [hostility towards foreigners] into their party platforms. A 1981 CDU resolution reads: c as a national unitary state and as part of a divided nation does not permit the commencement of an irreversible development into a multi 237 The concept of the Volk and its derivative principle jus sanguinis are formidable barriers to the pol itical and social integration of those not of German 238 Long term residency in the country and command of the German language oxymoronic term auslndischer Mitbrger [foreign fellow citizen]. 239 Michelle Mattson contends that xenophobia is n naturalized but also sanctioned as necessary for German ethnic well 240 The German Volk is an organic, historical entity, the cohesiveness of which is essential to political stability. Foreigners threaten Zusammengehrigkeitsgefhl [the feel ing of belonging together], a feeling that inspires mutual loyalty among the citizenry and ensures the unity of the state. The CDU stresses the importance of maintaining this quality in German political culture 236 Steiner, 93 94. 237 Gibney, 91. 238 Schuster, 188. 239 Senders, 148. 240 Mattson, 72.
76 ethnic homogeneity within the Federal Republic. 241 The CDU position statement on immigration and integration made in 2000 in response to the SPD facili tate migrant labor clearly defines Germany as a Christian nation not open to other shaped by Christianity, Judaism, ancient philosophy, humanism, [R]oman law and the E 242 Then SPD Minister of the Interior Schily singled out Muslims as own country that it is not possible to exercise their religious practices when it is at the 243 The perception of Muslims as unacceptable is supported by a CDU/CSU asylum policy which refused Turkish asylum seekers as a group but made an exception for Christian Turks, claiming that due to their faith they should no t be classified as economic refugees. Refugees who cannot claim German descent and cultural knowledge, even those belonging to the greater Christian faith, are viewed with a certain degree of suspicion. fore their loyalty to the state can never be guaranteed. Dual citizenship, although now a possibility for some, is not encouraged by the German government due to a perception that it engenders conflicting loyalties that impede full integration. 244 241 Schuster, 210. 242 Ibid. 243 Ibid. 244 Ibid., 226 and 189.
77 The e thnic German Aussiedler citizenship, were assumed to possess fundamental prerequisites for integration, such as German ancestry and a familiarity with German language and culture. The Aussiedler and after 1990 the Sptaussiedler were repatriates and as such did not need to be naturalization because it involves no change in national identity repatriates are by definition already 245 Repatriates were not required to prove their German ancestry, but rather their cultural descent (which implies blood descent). Proof of personal suffering as a result of their German heritage is also a component, leading is to some degree assumed that to be German is to suffer for 246 differ greatly from that of local German communities, however, where repatriates are typically viewed as foreigners Aussiedler must Auslnderproblematik foreigners]. Aussiedler 247 Repatriates were initially welc omed in West Germany during the Cold War years, but with the breakup of the Soviet Union and the large increase in the number of Aussiedler settling in 245 Senders, 149 and 174. 246 Senders, 164; Steiner 77. Steiner identifies this idea of German suffering as central to the right of asylum. He describes the use of the Germans as victims argument during the 1978/1980 parliamentary debates over asylum, which stipulates that since Germans suffered under Nazi persecution and were granted asylum by others, the German state now has an obligation to grant asylum to those who suffer persecution. He point s out that the argument does not refer to Germans causing the suffering of others during World War II, but merely to the diplomatic debt owed by the state as a result of other countries having accepted its persecuted nationals. 247 Schuster, 223.
78 Germany, community acceptance of their presence declined rapidly. 248 Locals claimed that Aussiedler seeme 249 The government initially attempted to curb public resentment of the Aussiedler 250 The government seemed to recognize that public intolerance stemmed from the increase of ethnic German migrants in a time of economic and political enough to balance 251 Faced with public disapproval of its Aussiedler policy, the government began programs to encourage ethnic Germans not to migrate while never abandoning its official stance regarding their welcome One such pre vention scheme was the aforementioned plan by the Kohl government in 1992 to create an independent republic for ethnic Germans in the Volgograd region of the former USSR so that they would not migrate to Germany. Aussiedler can be successfully assimilated while those unable to claim German descent cannot reflects the stubborn refusal to self identify as a country of immigration as well as the association of the nation with a specific culture. Wolfgang Schuble (CDU ) emphasized the construction of the the states of old Europe are classic nation states. We do not create our identity through belief in an idea, but through belonging to a particular people, as it is geograph ically bordered and as it has developed 248 Sende rs, 164. 249 Schuster, 187. 250 Senders, 164. 251 Ibid., 165.
79 252 Official German policy toward foreigners reflects the need to retain integration of foreigners living legally in Ger non EU countries. 253 Germany advocates that even long integration problems with immigrant s are exacerbated by the arrival of hundreds of thousands of asylum seekers. The tension between asylum and immigration is not new, and stems from the common perception that Germany has a severely limited integration capacity. Herbert Gruhl, a conservative founder of the Green Party, argued that in terms of integration, the state should admit those with a cultural biological connection to same. If someone comes from Indi It is after all most natural that one accepts those with whom one already shares a common 254 The sense that Germany can better integrate those of German ethnicity and who speak German practically mandates that immigrants assimilate. Asylum seekers are viewed as hindering the difficult and lengthy process of assimilation for foreign residents. Asylum seekers were identified as a negative imp act on the integration of guest workers in the 1978/1980 parliamentary debates over asylum. Parliamentarians stated that the increased number of applicants complicated the integration of foreigners already in the 252 Schuster, 242 243. 253 Senders, 149. 254 Mattson, 71.
80 country and Wendig (Free Democrat) claimed that the Integrationsfhigkeit [integration capacity] of the country had been exceeded. 255 The overwhelming degree of biologically and ethnoculturally based arguments against immigration and asylum should not overshadow the humanitarian arguments in favor of asylum present in the 1993 debates. Universal humanist perspectives were certainly present in the debates and one parliamentarian who opposed the amendment also argued that the proposed change in the law was harmful to democracy because it was 256 Von Larcher (SPD) cautioned against being so 257 Outbur 258 Wei (Green) accused the amen 259 Gysi (Party of Democratic Socialism) called nation poverty of the so called Third World while at the same time building walls against 260 255 Steiner, 73. 256 Ibid., 88. 257 Ibid., 88 89. 258 Ibid., 92. 259 Ibid., 89. 260 Ibid., 92.
81 In one sense the debate over a sylum was inextricably linked with the problems of immigration a nd hostility towards foreigners and seemed partially removed from its humanitarian context in the mind of the public, as w hat was once a universal institution had now been restric ted to better exclude the finstere Masse [dark masses] 261 of asylum s eekers implied that the problem lay with the law and the asylum seekers rather than a xenophobic public, the cont radictory immigration policy, and a problematic definition of nationhood. 262 However, the view that rejects immigration strong biological component was joined by a political debate advocating the rights of foreigners. Some German academics, such as Habermas, proffer a vastly different version of membership in the German community. For Habermas, the an abstract institutionalization of legal principles, but also a political cultural context for t 263 Preferably, all 264 [ Verfassungspatriotismus ] by Habermas, promotes universal, humanitarian values and a traditions. ective regarding the admittance of foreigners stands the view that German citizens must be able to choose 261 Mattson, 73. 262 Kurthen, 927. 263 Schuster, 47. 264 Ibid.
82 who gains entry to the state, a view which reflects persisting ethnocultural narratives of German national identity. Eckart Schiffer, chief foreign po licy advisor for Secretary of the Interior Wolfgang Schuble and director of the constitutional department, analyzed the political difficulties of a multicultural society in an editorial for Der Spiegel in 1991 Der Koran ist nicht Gesetz ran is not Law]. 265 He maintains that the battleground for imported ideologies and when the basic consensus on the legal goods required for the peaceful coexistence of peop les is endangered. 266 According to Schiffer, membership in the German political community does not follow the model of Blut und Boden [blood and soil] propagated during the Nazi dictatorship, but rather is structured around the association and commitment of Willens und Wertegemeinschaft ]. 267 greatly from that of Habermas, however, as he fears that the cultural differences between immigrants and the native (German) popu lation would be so great that abstract political should readily engage in the political praxis of the receiving state, but Habermas takes care to discern political accultura tion from cultural assimilation, stating that: The democratic right of self determination includes, of course, the right to political culture, which includes the concrete context f assertion of a privileged cultural life form. 268 265 Der Spiegel no. 40 (30 September 1991): 53 59. 266 Ibid., 57. 267 Ibid., 59. 268 Praxis Inte rnational 12, no. 1 (April 1992), 17.
83 The state has a duty to help preserve a particular political culture and to ensure that risks losing the politic al support it needs to govern legitimately and effectively. 269 The state, cannot, however, legitimately limit immigration or asylum on the basis of a founded on cultura l differences, but rather on the social and economic capacities of the state to absorb new members. The Political Dimension of the 1993 Asylum Debate The political controversy over asylum in the early 1990s represented a fundamental debate democracy and its liberal commitments to international law and human rights. The first level of the debate focused on whether Germany should prioritize democratic obligations over universal, human itarian commitments. The second level of the debate concentrated on which level of government, the national or international level, should decide the asylum problem. The question of the appropriate sphere of government was complicated however, by the invol vement of the European Union and issues generated by disparate international and EU standards. humanists. Liberal universal arguments to preserve an uncondit ional right to asylum represented not only a particular political story of peoplehood, but also an alternative 269 Krell et al., 165.
84 ethically constitutive story of membership, one which drew upon a shared history of universal commitments to human rights in the Federal Republic since the foundation of the Basic Law in 1949. Gerhard Schrder (SPD), then Minister President of Lower in favor of human 270 people who live here. It is not my duty to treat all problems i 271 During the 1993 parliamentary debates, Alfred Dregger (CDU) asserted that the German own citizens first, and only secondarily the rest of the Jedermannsland 272 interests over those of foreigners in need, as the origin, and thus the perceived identity, of as been non European, by 1993 over 70 percent were European, mainly from the former 273 These refugees came predominantly fr 274 a region which had recently won its political freedom and thus the opportunity for economic freedom as well. After the dissolution of the Soviet Union, asylum seekers 270 Joppke, 280. 271 Ibid. 272 Ibid., 280 281. 273 Steiner, 63 64. 274 Joppke, 279.
85 from the former Soviet bloc countries were no longer viewed as politically oppressed, but merely impoverished. Due to the close connection between political and economic freedom, the West perceived the economic system of Communist countries as a form of oppression, and refugee s fleeing East Germany and the Soviet bloc [ Republikflchtlinge ] played an important propaganda role for the West German state, validating the political superiority of Germany as a capitalist democracy. 275 After the Fall of the Berlin Wall and the end of the Cold War, refugees from formerly communist countries were no longer assumed to be 276 and were perceived instead as economic migrants. The fledgling states that emerged from the ruins of the Soviet Union were expected, n ow that they had won their freedom, to experience economic improvement and achieve political stability. 277 The debate over the threat of persecution in Communist Europe that had existed in 1949 had been resolved by the dissolution of the Soviet Union, and Po lish Sozialhilfe Tourismus ]. 278 The acceptance rate of East European asylum seekers dropped below 1 percent in the early 1990s. 279 Asylum seekers in the e arly 1990s were faulted for overwhelming the economic system and thereby posing a threat to political stability. Yet, the readiness of the state and of the economic system to absorb these people, but.. more upon how citizens perceive the 275 Schuster, 191 192. 276 Mattson, 64. 277 The Global Review of Ethnopolitics 2, no. 1 (September 2002): 35. 278 Schuster, 201. 279 Dietz, 36.
86 280 Economic difficulties prompted the conservative Union parties to construct the asylum debate in a way that pitched ical and economic interests against those of outsiders, outsiders who were between rightful members of the polity and those who could not make claims on legal and socia l goods. The German government did not abrogate all responsibilities towards refugees, however. The Federal Republic accepted 75 percent of Bosnian and Kosovar refugees fleeing civil war in the former Yugoslavia, creating the special category of 281 These refugees initially applied for asylum and constituted the largest applicant group in the early 1990s, leading to a distortion of the 1990 1991 asylum statistics. 282 Removal of these refugees fr om the regular asylum process lowered the official number of asylum applications considerably not viewed as a threat because they were temporary as soon as the Dayton Peace Agreement was signed and the German government announced the war in Yugoslavia had ended, they were returned home. 283 Civil war refugees were not labeled as asylum seekers because the term carried a connotation of unworthiness. Once a beacon of the moral humanitarian achievements of the state, the institution of asylum became an embarrassment and a nuisance to a government that felt thwarted in its attempts to serve the interests of its citizens. The 280 Habermas, 13. 281 Schuster, 127. 282 Mattson, 65. 283 Schuster, 189.
87 generous right to asylum was sacrificed be cause the retention of asylum depends on its ability to validate the state as liberal and democratic. 284 The generosity of the right to asylum contained in Article 16(II)(2) certainly reflected liberal commitments, but the were seen as coming into direct conflict with those of citizens. The 1993 amendment marks the first time in history that German citizens, through their parliamentary representatives, formulated c onstitutional law on asylum. Due to the economic success of the Wirtschaftswunder years in the 1950s, the Grundgesetz was accepted as the constitution of the West German state even though it had never been popularly ratified. The opportunity to amend or re write the constitution at the time of reunification was rejected. The liberal right to asylum contained in Article 16(II)(2) was Rather than stemming from the democratic process, the liberal humanitari an commitments enshrined in Article 16(II)(2) developed in conjunction with international human rights and refugee law. Germany ratified the Geneva Convention in 1953 and since international law is incorporated into municipal law under Article 25 of the Gr undgesetz the German asylum institution operated within the framework of the Convention. 285 owing to well founded fear of being persecuted for reasons of race, religion, nationality, membe rship of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. 286 284 Schuster, 55. 285 Hlene Lambert, Francesco Messineo, and Paul Tiedema Refugee Survey Quarterly 27, no. 3 (2008), 26. The full name of the Convention is the 1951 United Nations Convention Relating to the Status of Refug ees. 286 Steiner, 15.
88 Prior to 1986, Federal Constitutional Court inte rpretations tended to construe the German asylum provision as broader than the Convention definition regarding who was eligible for asylum. In 1980 the FCC ruled definitively that Article 16 provided for those persecuted individuals to whom the Convention did not apply. 287 Following the 1980 decision, Article 16 granted refugees asylum status and the Convention protected those waiting for their claim to be processed or those whose claim had been rejected from deportation. 288 The 1986 reversal to a more restrict ive stance on the part of the court resulted in the narrowing of Article 16 entitlement rights in relation to the Convention. 289 The disparity between formal asylum status under Article 16 and Convention status be persecution perpetrated by the state or highest governing power. In contrast, the 1951 Convention recognizes non state actors of persecution. 290 The turn to a restrictive reading of Article 16 asylum status coin cided with the rise of a decidedly illiberal European Union asylum regime at odds with German constitutional law. Germany initially attempted to convince other European states to adopt its liberal asylum provision. In 1977 Germany attempted to make its asy lum law international practice when it proposed its individual right of asylum be adopted at a United Nations conference. The only state to vote for the West German proposal was the Vatican. 291 Once again in 1991 the united Federal Republic proposed at the L uxembourg 287 Tiedemann, 164. 288 Ibid.; Joppke, 278. Before the 1993 changes to the asylum law, Germany only deported about 1 2% of denied asylum applicants. 289 Tiedemann, 165. The court ruled that the inability to worship publicly did not co unt as persecution. 290 Ibid. 291 Joppke, 281.
89 summit to harmonize the asylum policies of EU states to a level similar to that of Germany. 292 asylum right meant fewer asylum applicants for other EU states. The German go have to be amended in order to harmonize German and European asylum policy. With the advent of the European Union, Germany gained a new role as a member of a supranational b ody with regional, European commitments and obligations. spheres of authority, generating debate over which level of government, the national or international level, sho uld decide the asylum problem. A the state could justify allowing the EU asylum regime to assume res ponsibility for German constitutional commitments. Within this new framework, German legislators could confidently assert that asylum seekers did not need refuge in Germany specifically. During the 1993 parliamentary debates, Van Essen (Free Democrat) stat human right for protection against torture and inhumane treatment, but there is no human 293 The implication here is that while asylum seekers are welcome to protection, Germany has no special obligation to assist them over that of other nations. For Germany, membership in the EU replaced its commitments to international human rights. 292 Gibney, 99. 293 Steiner, 90.
90 arguments pose d by delegates during the 1993 parliamentary debates actually depicted the amendment as beneficial for the citizens of other nations. Dregger (CDU) boldly brain drain fro 294 that they could not provide refuge from political persecution. 295 The liberal opposition countered by a rguing that unjustly dumping asylum seekers on neighboring states would damage foreign policy interests and violate the sovereignty of border states. 296 The EU burden sharing system effectively insulates Germany from the asylum problem, for while Ge rmany ceded partial sovereignty to the EU in matters of monetary and trade policy Germany also acquired the ability to shift domestic responsibility to the EU level in other less desirable areas such as asylum and immigration. Dorothee Post and Arne Niema makers can refer to domestic constraints in order to strengthen their negotiating position at the international change 297 The latter dynamic aptly describes the actions of legislators in favor of the 1993 amendment. One of the principal arguments in support of the amendment was that a change in German asylum law was necessary in order to com ply with EU asylum policy. Membership in the EU was used tactically in 1992 by the German government to justify 294 Steiner, 88. 295 Ibid., 87. 296 Ibid., 89. 297 Post and Niemann.
91 298 The Federal Republic utilized EU policy instruments in 1992 1993 to legitimize restrictive r eforms of the domestic asylum law. These policy instruments were based on the 1990 Dublin Convention and on the London Resolutions, which were three key, but non binding, principles developing the s as well as the principle of 299 The German government was in favor of the harmonization of German and EU asylum policies because greater integration and cooperation between the two asylum regimes would allow Germany to benefit from the EU burden sharing system. Shifting the burden of asylum onto the EU sphere redefined the asylum issue as a European problem rather than a domestic one and enabled Germany to justify downgrading its considerably more generous standards to l ower European ones. 300 301 In the words of one parliamentarian, Germany d owngraded its 302 This downgrade resulted in a harmonized EU asylum policy that is set at the level of the lowest common 298 Bosswick, 54. 299 Econo mic Policy 19, no. 38 (April 2004): 21. 300 Union and the International Refugee Survey Quarterly 20, no. 2 (2001): 62 63. 301 Journal of Population Economics 19, no. 2 (June 2006): 413. 302 Steiner, 91.
92 de nominator. 303 The ability of the German government to shift its onerous responsibility for asylum seekers onto its European neighbor position as a landlocked country in the center of Europe from a disadvantage in term s of asylum 304 German membership within the European Union therefore provided a way to both shirk the responsibility to refugees mandated by Article 16(II)(2) and to avoid the conversion of Germany into a country of immigratio n. Prior to the 1993 amendment, German asylum law was considerably more may only be processed by one EU country, and that a rejection from one EU state is a re jection from the EU as a whole. 305 prohibited such blanket rejection and led to an inordinate amount of asylum seekers being able to apply in Germany. The safe third country rule incorporated into Article 16(a) ame pressure its border states to assume responsibility for asylum seekers who passed through their territories. The Federal Republic utilized its new position within the EU to compel Ea stern European countries, particularly Bulgaria, Lithuania, the Czech Republic, Slovakia and Poland, to adopt asylum regimes which would satisfy criteria for the safe third country rule. 306 Germany also concluded various agreements with bordering states to s ecure the right to return its rejected asylum seekers and paid DM120 million to 303 Bo swell, 543. 304 Gibney, 104. 305 Joppke, 281; Gibney, 101. 306 Bosswick, 54.
93 Poland and DM60 million to the Czech Republic to improve the effectiveness of their border controls. 307 s attacks 308 Paradoxically, by ceding partial sovereignty to the EU and fully joining the EU asylum regime, Germany was able to reclaim an essential facet of national sovereignty through greater control over its borders. Proponents of the 309 The Federal Republic does identify obligations to the protection of human rights an d legal obligations which the state has under domestic and international law, but these n sharing, allows the moral obligations of the state to be fulfilled, but not at the expense of German citizens. 307 Gibney, 104. Germany signed return agreements with Romania in 1992, Poland and Switzerland in 1993, Bulgaria and the Czech Republic in 1994 and Vietnam in 1995. 308 Schuster, 222. 309 Bosswick, 56 57.
94 Conclusion In Chapter One, I examined the 1949 German constitutional right to asylum and the ways in which political na rratives of peoplehood superceded ethnocultural ones to define membership in the German political community. A thorough analysis of the 1948 1949 parliamentary council debates revealed that the German constitutional right to asylum established in 1949 soug ht to create a civic political German people in contradistinction to the racially defined German Volk of the Nazi period. The new civic political German people were to be united by an allegiance to political principles rather than by a common culture or th rough biological descent. The German Basic Law represented a renunciation of vlkisch Nazi ideologies in its fundamental commitments to human dignity and basic civil rights. In addition to containing explicit obligations to universal human rights, the Basi c Law sought to guarantee the formation of a civic political people by structuring its political system to encourage the preservation of democracy and by mandating that all political parties uphold democratic principles. The predominant political storie s of peoplehood that occurred in 1949 centered first on the importance of a united German political Volk for the creation of a German constitution, and second on the importance of maintaining a strong democratic political culture in the Federal Republic. T he political division of Germany led to the lack of a conception of the Basic Law as a temporary governing document rather than a
95 constitution. Confusion amongst delegates over whether the asylum right would apply to Germans as well as foreigners stemmed from the desire to reconstitute the German Volk The heavy emphasis delegates placed upon democratic values inspired a conception of political membership based on a strong individual commitment to democratic principles the 1948 1949 parliamentary council wanted to ensure that asylum seekers were committed to democratic principles. Poli tical narratives of membership in 1949 thus exemplified tensions between universal and constitutional commitments to human rights as, however, complicated by the post war perpetuation of underlying ethnocultural narratives of German political membership. Ethnocultural narratives of German political identity were discouraged during the formation of the Basic Law due to the overwhelmin g sustained in the post restrictive citizenship laws based on blood descent were not revised in 1949. Second, the war European refugee policy encouraged ethnocultural notions of German political membership by making Germany solely responsible for ethnic German refugees and by specifically mandating that Germany grant citizenship to these ethn ic German refugees in Article 116 of the Basic Law. In Chapter Two, I examined how political entrepreneurs constructed the asylum debate surrounding the 1993 amendment to Article 16(II)(2) to form particular economic, ethnocultural, and political nar ratives of membership in the German political community.
96 I first analyze the ways in which Chancellor Helmut Kohl utilized the controversial issue of asylum to gain support in the 1994 federal elections. The elections, and the 1993 amendment to the right t o asylum, occurred amidst considerable economic and political turmoil in the Federal Republic as a result of German reunification in 1991 and a prolonged economic recession. In light of the tumultuous economic and political situation, the drastic increase in the number of asylum applicants to Germany in the early 1990s allowed Kohl to construct the institution of asylum as a threat to the Federal Republic, drawing public attention away from the economic troubles which could damage his campaign. German political leaders such as Kohl defined the national political community in relation to the problem of asylum using three types of narratives. The first narrative that I discuss is the economic, focusing on how asylum seekers destabilized the German econom reconstruction years. The 1993 asylum debate highlighted the symbolic importance of economic prosperity and material privileges, such as welfare benefits, to the German citizen ry. The perceived cost of the asylum process caused the economic interests of citizens and foreign asylum seekers to come into conflict, leading to negative depictions of asylum seekers as deceptive opportunists profiting off of hardworking German citizens Conflicting commitments to citizens and non nationals such as asylum seekers also came into play during the substantial political controversy over asylum in the early 1990s. Democratic obligations to serve the interests of German citizens existed in tension with liberal commitments to human rights embodied in an unconditional right to asylum.
97 Arguments in favor of the 1993 amendment to restrict the right to asylum prioritized ropean Union ultimately provided proponents of the constitutional change with a way to restrict to politically persecuted refugees. Parliamentarians in favor of th e amendment argued that restrictive reform of Article 16 was necessary in order to comply with the system allowed Germany to transfer the majority of its asylum responsibil ity onto the EU level of government. The economic and political dimensions of the 1993 asylum debate were colored by an ethnocultural narrative of national membership that was not present in the 1949 debate. Although partially suppressed in 1949, ethn ocultural understandings of German national political membership resurfaced during the economic and political turmoil of the nation and a liberal democratic order, legitimat combined with ethnocultural notions of national membership to influence the national enophobia and the resistance to the idea of a multicultural German society is evident in the public portrayal of asylum seekers as threatening national political stability and impeding the integration of existing foreign residents. My analysis of the 1949 and 1993 German asylum debates could easily be applied to different research projects. The evident backlash to a multicultural German state
98 contained in the asylum debate can also be observed in other areas, such as in immigration and citizenship pol icies. Future research projects could pursue a closer examination of both German citizenship and immigration law. With regard to citizenship policy, I would analyze the changes in German citizenship law over time, focusing on the persistence of ethnocultur al conceptions of the citizen and the recent liberalization of citizenship status in 2000. The slow, difficult process of introducing principles of citizenship based on jus soli rather than jus sanguinis could be explored as evidence of an underlying Germa analysis I provide in this thesis would prove especially helpful in this regard, as citizenship law was always an underlying factor in the 1949 and 1993 asylum debates. As part of the 1993 asylum compromise, liberal citizenship laws were granted in exchange for restricting the constitutional right to asylum. The impact of a liberalized citizenship can ex pect there to be a coinciding change in the development of narratives of national political membership regarding citizenship. My thesis research could also further investigation of German immigration issues. Asylum is closely connected to larger ques tions of immigration and German resistance to the concept of a multicultural society could also be explored in the context of immigrant communities. Additionally, the reception of guest workers in the Federal Republic offers a promising comparison to asylu m, as popular resentment at the presence of foreign laborers did not occur to the same extent and ethnocultural narratives of German identity did not emerge during the recruitment processes in the 1950s and 1960s. This difference is most likely due to the construction of guest workers as temporary members of the
99 German community. However, as foreign labor populations gradually became permanent, one can expect the stories of peoplehood constructed in relation to these immigrant communities to have changed as well. By comparing and contrasting the narratives of national membership constructed in relation to asylum with the narratives constructed with regard to citizenship and immigration, one could achieve a deeper and more complete understanding of German nat ional identity.
100 Appendix 1 Article 16 of the German Basic Law Article 16 [Citizenship Extradition] (1) No German may be deprived of his citizenship. Citizenship may be lost only pursuant to a law, and against the will of t he person affected only if he does not become stateless as a result. (2) No German may be extradited to a foreign country. The law may provide otherwise for extraditions to a member state of the European Union or to an international court, provided that t he rule of law is observed. Article 16 a [Right of asylum] (1) Persons persecuted on political grounds shall have the right of asylum. (2) Paragraph (1) of this Article may not be invoked by a person who enters the federal territory from a membe r state of the European Communities or from another third state in which application of the Convention Relating to the Status of Refugees and of the Convention for the Protection of Human Rights and Fundamental Freedoms is assured. The states outside the E uropean Communities to which the criteria of the first sentence of this paragraph apply shall be specified by a law requiring the consent of the Bundesrat. In the cases specified in the first sentence of this paragraph, measures to terminate an stay may be implemented without regard to any legal challenge that may have been instituted against them. (3) By a law requiring the consent of the Bundesrat, states may be specified in which, on the basis of their laws, enforcement practices and general political conditions, it can be safely concluded that neither political persecution nor inhuman or degrading punishment or treatment exists. It shall be presumed that a foreigner from such a state is not persecuted, unless he presents evidence justifying the conclusion that, contrary to this presumption, he is persecuted on political grounds. (4) In the cases specified by paragraph (3) of this Article and in other cases that are plainly unfounded or considered to be plainly unfounded, the implementation o f doubts exist as to their legality; the scope of review may be limited, and tardy objections may be disregarded. Details shall be determined by a law. (5) Paragraphs ( 1) to (4) of this Article shall not preclude the conclusion of international agreements of member states of the European Communities with each other or with those third states which, with due regard for the obligations arising from the Convention Relating to the Status of Refugees and the Convention for the Protection of Human Rights and Fundamental Freedoms, whose enforcement must be assured in the contracting states, adopt rules conferring jurisdiction to decide on applications for asylum, including the reciprocal recognition of asylum decisions.
101 Appendix 2 German Asylum Practice 1949 1993 Between the creation of the asylum provision in 1949 and the amendment to Article 16 in 1993, asylum legislation focused primarily on accelerating the applicati on the asylum right. Social deterrence measures and accelerated legal procedures acted to 310 The a sylum 311 the late 1970s to the mid 1980s, when local state governments pus hed for more restrictive asylum legislation but Article 16(II)(2) remained sacrosanct. 312 The ideological left versus right conflict marked the late 1980s and early 1990s, as the Right argued to revise Article 16 and the Left sought to preserve it. In the se cond period, restrictive tendencies on the part of the courts utilized constitutional and international arguments to limit the right to asylum. During the first period of legislative restrictions, from the late 1970s to the mid 1980s, three significant pi eces of asylum legislation were introduced. In 1978 the First Acceleration Law [ Gesetz zur Beschleunigung des Asylverfahrens ] was passed 313 This law attempted to speed up the asylum process, which at that time could take up to seven 310 Joppke, 276. 311 Ibid., 275. 312 Ibid. The Lnder governments are legally responsible for providing housing and welfare benefits to asylum seekers. 313 Steiner, 61.
102 years by adding personne l to the Federal Office for the Recognition of Foreign Refugees and by limiting the appeal opportunities of applicants whose claims had been rejected due 314 Asylum applications continued to increase, however, and in 1980 the Second Acceleration Law was enacted ( Zweites Gesetz zur Beschleunigung des Asylverfahrens ). 315 The 1980 law withheld work permits from of fleeing poverty rather than polit ical persecution. After the passage of this law, applications did decrease from 108,000 in 1980 to 19,700 in 1983, but merely rose again in 1985 to 73,800 and 99,700 in 1986. 316 In 1986 a much stricter law was passed, 317 prohibiting asylum seekers from gai ning work permits for the first five years of their stay in Germany and automatically denying asylum to anyone who had already enjoyed asylum in another country for at least three months. 318 This legislation also did not deter applicants for very long, for i n 1988 the number of asylum applications filed in Germany was 103,076. 319 In order to deal with the dramatic increase in applicants following the fall of the Berlin Wall, a series of laws went into effect on January 1, 1991 which loosened work restrictions, abolished the Duldung 320 Time restrictions for work permits were reduced to one 314 Steiner, 61. 315 Ibid. 316 Ibid., 62. 317 Gesetz zur nderung asyl verfahrensrechtlicher, arbeitserlaubnisrechtlicher und auslnderrrechtlicher Vorschriften 318 Steiner, 62. 319 http://www.migrationinformation.org/DataHub/asylumresults.cfm (accessed March 6, 2010). 320 Steiner, 62 63.
103 granted for a period of six months to persons who did not qualify for asylum but who could not be deported because they faced the threat of persecution, war, or famine in their home country. 321 321 Steiner, 63.
104 Appendix 3 European Union treaties, conventions, and initiatives related to asylum and immigration, 1985 1992 322 Date Date entered Title signed into force 1985 1995 Schengen Accord 1986 1987 Single European Act (SEA) -Ad Hoc Working Group on Immigr ation (AWGI) 1990 1997 Dublin Convention on Asylum 1991 1993 Treaty on European Union (the Maastricht Treaty) 1992 -Center for Information, Discussion and Exchange on Asylum (CIREA) Center for Information, Discuss ion and Exchange on the Crossing of External Borders and Immigration (CIREFI) 322 Note: Dates omitted where not applicable. Date entered into force does not necessarily reflect German domestic implemen tation date, but rather when the policy entered into force for all signatory states.
105 Appendix 4 EU Member States by Entry Date Entry Date EU Member States 323 1957 Belgium France Germany Italy L uxembourg Netherlands 1973 Denmark Ireland United Kingdom 1981 Greece 1986 Portugal Spain 1995 Austria Finland Sweden 2004 Cyprus Czech Republic Estonia Hungary Latvia Lithuania Malta Poland Slovak Republic Slovenia 2007 Bulgaria Romania 323 Candidate countries for membership in the European Union are Croatia, the Former Yugoslav Republic of Macedonia and Turkey.
106 Appendix 5 Map of the European Union demonstrating states bordering Germany 324 324 Source p of EU member states http://www.unitetheunion.com/ resources/political_department / unite_in_europe/eu_information/map_of_eu_member_states.aspx (accessed April 6, 2010).
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