Ten years of Basic Law amendments: developing a constitutional model of German unification.

• Author: Pile, Mathew W.

ABSTRACT

On October 3, 1990, West and East Germany officially united. Although several unification methods were possible, the unification occurred by East Germany acceding to the West German Constitution--the Basic Law--through a series of treaties. This "treaty route" to unification necessarily required amendments to the Basic Law.

The primary unification instrument, the Treaty on the Establishment of German Unity, detailed the Basic Law amendments that were immediately essential to effectuating unification. The treaty, however, also contemplated additional Basic Law amendments arising from the consequences of unification. In fact, in the ten years following German unification, the German legislature passed six Basic Law amendments that directly addressed unification issues.

This Note analyzes the unification amendments to the Basic Law, identifying both the positive and the negative constitutional effects of German unification. The Note organizes these constitutional effects into a Constitutional Model of German Unification. The Constitutional Model of German Unification: (1) identifies and explains the constitutional characteristics of unification, (2) proposes constitutional recommendations for future unifying States, and (3) predicts the content of future unification amendments to the Basic Law.

1. INTRODUCTION(1)

   On October 3, 1990, West and East Germany officially united to form a single, enlarged Federal Republic of Germany.(2) The unification occurred in accordance with the Treaty on the Establishment of German Unity (Unification Treaty) of August 31, 1990.(3) The treaty route to German unification(4) had been strongly endorsed by the East German elections of March 18, 1990.(5) In fact, the Unification Treaty itself was only one of several agreements that was necessary to realize German unification.(6) The Treaty Establishing a Monetary, Economic and Social Union (May 18, 1990)(7) and the Treaty on the Final Settlement With Respect to Germany (September 12, 1990)(8) also contributed significantly to the unification process. During and following the 1990 unification Germany amended its Constitution or Grundgesetz (Basic Law)(9) thirteen times, affecting forty different articles of that document.(10) The Basic Law had been amended thirty-five times between its original promulgation on May 23, 1949, and German unification in 1990.(11)

   This Note will develop a Constitutional Model of German Unification by analyzing the Basic Law amendments that occurred as a result of German unification. The constitutional model will identify and explain the implications of the unique positive and negative constitutional characteristics of German unification. The development of a Constitutional Model of German Unification is important for three reasons: (1) to provide an analytical framework within which future unifying States may evaluate and implement their own unification; (2) to propose a set of constitutional recommendations for future unifying States based on Germany's unification experience; and (3) to predict the content of future Basic Law amendments relating to unification.

   Section II will describe the processes by which Germany amends the Basic Law and enters into treaties. This section will also explain the constitutional authority under which Germany entered into the unification process. Next, Section II will detail the constitutionally significant provisions of the Unification Treaty and the Treaty Establishing a Monetary, Economic, and Social Union (MESU Treaty).(12) Finally, this section will briefly describe the content of each of the thirteen Basic Law amendments since 1990.

   Section III will: (1) identify the Basic Law amendments that resulted from unification; (2) detail the provisions of each amendment; (3) explain how each amendment relates to unification; and (4) describe how each amendment contributes to the Constitutional Model of German Unification.

   Section IV will define the Constitutional Model of German Unification by: (1) identifying and explaining the seven constitutional characteristics of German unification; (2) proposing constitutional recommendations for future unifying States in light of Germany's unification experience; and (3) predicting the content of future Basic Law amendments relating to unification.

2. AMENDING THE BASIC LAW AND CONCLUDING TREATIES: PROCESS AND SUBSTANCE

   A discussion of the constitutional effects of German unification necessarily implicates two different procedures that will be discussed in this section: the passage of constitutional amendments and the conclusion of treaties. These two processes can be closely related; in fact, a constitutional amendment may be necessary to authorize participation in or fulfillment of a treaty. This raises two additional issues that will be discussed in this section: the sources of constitutional authority for Germany's participation in the unification process, as well as the identification of the essential provisions of the two unification treaties. This section will conclude by briefly describing the content of the Basic Law amendments since 1990.

   1. Amending the Basic Law

      The legislative branch of the Federal Government is composed of two houses: the Bundestag (Federal Parliament) and the Bundesrat (Federal Council).(13) The Bundestag is a parliamentary assembly that represents the people of Germany.(14) The two major functions of this lower house are "to pass laws [and] to elect the Federal Chancellor."(15) The Bundesrat, on the other hand, is composed of Land (state) representatives who are not elected by the people.(16) The consent of the Bundesrat for regular legislation is only required if the legislation concerns the "vital interests of the states" because Bundesrat members represent the Lander (states).(17)

      In accordance with Article 79(2) of the Basic Law, however, both houses of the legislature must approve an amendment to the Basic Law.(18) An amendment must be passed "by two-thirds of the Members of the Bundestag and two-thirds of the votes of the Bundesrat."(19) The constitutional amendment must also be "explicit."(20)

   2. Concluding Treaties

      Article 32 of the Basic Law governs the treaty-making power.(21) Article 32 not only allows the Federal Government to conclude treaties, but it also defines situations in which the Lander may conclude treaties with foreign states.(22) Both the unification treaties involve the Federal Government's treaty-making power so only the federal treaty-making power will be described in this Note.

      Generally speaking, the Federal Government may conclude treaties involving three types of subjects: subjects over which it has exclusive legislative authority under Article 73 of the Basic Law, subjects over which it has concurrent legislative authority with the Lander, and subjects over which it has the power to enact general rules.(23) There is unresolved debate as to whether the Federal Government may conclude treaties in areas exclusively legislated by the Lander.(24) A non-binding agreement between the Federal Government and the Lander (referred to as the "Lindau Arrangement" of November 14, 1957), however, recognizes the practicality of allowing the Federal Government to conclude treaties that may incidentally affect issues of exclusive Lander legislative authority.(25)

      The subject matter of a treaty determines whether the legislative branch must approve it.(26) The consent of the Bundestag (and perhaps of the Bundesrat) is required under Article 59(2) of the Basic Law for "[t]reaties which regulate the political relations of the Federation or relate to matters of federal legislation."(27) If consent of the legislative branch is required, the consent must be conveyed in the form of a federal statute.(28) The Basic Law does not require more than a simple majority to consent to a treaty, unless the resulting statute would amend the Basic Law.(29) As is the case with other federal legislation,(30) the subject matter of a treaty governs whether the Bundesrat must join the Bundestag in consenting to a treaty.(31) Therefore, the subject matter of a treaty resolves two issues: (1) whether the legislative branch must approve the treaty at all; and (2) if consent is required, whether the Bundesrat must be included in the approval process.(32)

   3. Sources of Constitutional Authority for German Unification

      There is broad consensus that the constitutional authority for German unification could have derived from either Article 23 or Article 146 of the Basic Law.(33) At the time of its adoption, Article 23 provided for the possibility of a future German unification.(34) Article 146, on the other hand, indicated that a new constitution could be drafted should unification ever be considered.(35) The unification proceeded under Article 23 because the Article did not require a lengthy constitutional convention to achieve unification (as Article 146 seemed to require).(36)

      Article 23 and Article 146 were not the only proposed methods for instituting German unification.(37) "Confederation" was another possible route to unification under the 1990 Basic Law.(38) This unification method allowed both German States to "preserve their individual structures and governments while gradually merging some specified functions."(39) Chancellor Helmut Kohl supported this method in his Ten-Point Plan of November 28, 1989.(40) A lack of political support defeated this option and Chancellor Kohl soon withdrew his proposal.(41)

      Hans Modrow, the East German Prime Minister, suggested another early proposal for unification that enjoyed initial support.(42) Modrow proposed a "contractual community" between West and East Germany.(43) This idea, like Chancellor Kohl's confederation proposal, was eventually abandoned due to a lack of political support.(44)

   4. Provisions of the Two Unification Treaties

      This section will identify provisions of the Unification Treaty and the MESU Treaty that were most likely to produce...