The grass will not be trampled because the tigers need not fight: new thoughts and old paradigms for detente across the Taiwan Strait.

• Author: Puder, Markus G.

ABSTRACT

This Article examines the relationship between the Federal Republic of Germany and the German Democratic Republic, and explores whether the German experience may contain lessons for the relations between the People's Republic of China and Taiwan.

The Author's analysis of the German situation begins with a discussion of the relations between the separate German states, with a particular emphasis on how that relationship was shaped by the Basic Treaty. That document provided for the promotion of peaceful relations, recognition of independence and sovereignty of each nation, as well as a normalization of the diplomatic relations. After ratification, the Bavarian State Government sought a declaration that the ratification law was incompatible with the Basic Law, which conceived of Germany as one nation. The German Federal Constitutional Court unanimously rejected the petition, finding that the Basic Treaty was compatible with the Basic Law. The Author examines the Court's methods of analysis, as well as the ramifications of the Court's decision.

The Author then turns to an examination of the relations between the People's Republic of China and Taiwan. He recognizes that the People's Republic of China advocates the One-China principle for achieving a peaceful reunification between the mainland and Taiwan. By contrast, the government of Taiwan maintains that China has been split into two separate and independent states with divergent political and economic systems.

The Author notes that such divergent viewpoints had plagued German rapprochement. Once the parties moved past their disagreements, however, the Federal Republic of Germany and the German Democratic Republic were able to launch a viable partnering mechanism that increased the permeability of the inner-German border, facilitated German-German dialogue, and alleviated the hardships of division. The Author suggests that the Chinese affinity for treaty frameworks in the context of legal and political arrangements may be harnessed for increased levels of interaction in social, economic, trade, and other venues. Furthermore, the Author contends, the success of the Basic Treaty has illustrated how increasing contacts and decreasing tensions can effectively enhance the relationship.

1. INTRODUCTION(2)

   On July 9, 1999, in an interview with the German Radio Station Deutsche Welle, the former President of Taiwan--the Republic of China (hereinafter Taiwan), Lee Teng-hui, characterized "cross-strait relations [between Taipei and Beijing] as ... at least a special state-to-state relationship."(3) These remarks sparked a flurry of reactions, including vehement criticisms from the Government of the People's Republic of China,(4) subsequent clarifications by officials from Taiwan,(5) and mixed pronouncements from different players in the United States.(6)

   Dr. Lee Teng-hui's locution connotes a pattern molded by the late Chancellor of the Federal Republic of Germany, Willy Brandt (1968-74), who, against significant domestic resistance, based his policy of detente (Entspannungspolitik) on accepting the former German Democratic Republic as an equal.(7) After the completion of Germany's integration into the Western institutional, economic, and security frameworks that had dominated the Adenauer era,(8) Chancellor Brandt sought concrete steps for approaching the Eastern neighbors to lower tensions in Central Europe and improve inner-German relations.(9) Early in his tenure, Mr. Brandt proposed that the German Democratic Republic and the Federal Republic of Germany conclude a treaty on the mutual relations for the purpose of "arriving through regulated coexistence at togetherness."(10) Clarifying that his Government did not plan to recognize the German Democratic Republic under international law,(11) the Chancellor emphasized that the two states did not constitute foreign countries in relation to each other.(12) According to Mr. Brandt, the mutual relations between the Federal Republic of Germany and the German Democratic Republic were of a specific kind.(13) The offer, which was made in the context of renouncing the Hallstein doctrine(14) and forging the new conception of New East Policy (Neue Ostpolitik), ultimately resulted in the Treaty on the Basis of Relations Between the Federal Republic of Germany and the German Democratic Republic (Vertrag uber die Grundlagen der Beziehungen zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik).(15) The Treaty, which is also known as the Basic Treaty (Grundlagenvertrag), provided the agreement between the Federal Republic of Germany and the German Democratic Republic to develop good relations, desist from representing each other or exerting jurisdiction in the other's territory, and recognize that they constituted separate entities.(16) The Basic Treaty was designed to become the launching pad for a comprehensive treaty policy enveloping the Federal Republic of Germany and the German Democratic Republic.(17) The Bavarian State Government challenged the constitutionality of the Basic Treaty under Germany's Basic Law.(18) The Federal Constitutional Court,(19) however, held that the Basic Treaty was not anti-constitutional.(20) After their admission into the United Nations(21) the Federal Republic of Germany and the German Democratic Republic exchanged permanent missions.(22) The New East Policy embodied in the Basic Treaty has been credited with having played a crucial role in the process of inner-German rapprochement that culminated with German reunification.(23)

   This Article refreshes the historic German blueprint provided by the Basic Treaty. It explores the potential significance of the reoriented German detente architecture for the relations between Beijing and Taiwan.(24) Rather than taking sides in one fashion or another, the Article intends to offer the proposition that unencumbered creativity in the long term may lead to results that were previously adjudged as inconceivable. In that sense, the paradigm associated with the Basic Treaty may assist the parties concerned with re-energizing the complex legal, political, philosophical, and psychological cross-strait kaleidoscope.

2. FLASHBACK: THE DETENTE PARADIGM OFFERED BY THE BASIC TREATY

   1. General Content

      On November 8, 1972, the Basic Treaty was initialed and published, along with several supplementary texts.(25) The Treaty was signed on December 21, 1972.(26) Several other legal instruments, including protocols, declarations, and correspondence were attached.(27) Prior to the signing, the Government of the Federal Republic of Germany had sent a letter on German unity to the Government of the German Democratic Republic.(28) The legislative bodies of the Federal Republic of Germany considered, debated, and adopted the ratification law for the Basic Treaty.(29) On June 21, 1973, the Treaty entered into force.(30)

      The Basic Treaty consisted of ten articles.(31) It committed the Federal Republic of Germany and the German Democratic Republic to "develop normal neighborly relations with each other on the basis of equality of rights."(32) Moreover, the sovereign equality of all states, respect for independence, autonomy, and territorial integrity, the right of self-determination, the preservation of human rights, and the principle of non-discrimination were espoused.(33) The Treaty affirmed the inviolability of the existing borders.(34) Furthermore, the two states were held unable to represent the other internationally or act in the other's name.(35) In addition, the Basic Treaty pledged the promotion of peaceful relations and disarmament.(36) The Treaty further stated that the sovereign power of each state was confined to its state territory and that each party was to respect the other's independence and autonomy in internal and external affairs.(37) The normalization process was directed at resolving practical and humanitarian questions as well as cooperating in a broad suite of areas.(38) The Basic Treaty also announced the exchange of permanent representations.(39) It clarified that existing bilateral and multilateral treaties and agreements remained unaffected.(40) Finally, the Treaty imposed a ratification requirement and regulated the modalities of its entry into force.(41)

   2. Legal Challenge Before the Federal Constitutional Court

      1. The Petitions

         The Bavarian State Government petitioned the Federal Constitutional Court to declare the ratification law null and void for being incompatible with the Basic Law.(42) The petitioner reasoned that the Treaty contravened the constitutional precept of maintaining Germany's national unity and infringed the constitutional duty of care and protection vis-a-vis Germans residing in the German Democratic Republic.(43)

         The Federal Government requested a finding that the ratification law was compatible with the Basic Law.(44) It alleged that the petitioner, under the guise of advancing legal principles, read its purely political concepts into the Basic Law.(45)

      2. The Holding

         The Court unanimously rejected the petition.(46) It held that the abstract norms-control proceeding was admissible but unfounded.(47)

         1. Admissibility(48)

            The Court affirmed the admissibility of the petition.(49) The Court read the Basic Law's requirement of parliamentary control in the form of a ratification law for all treaties with foreign countries regulating the political relations of the Federation or relating to matters of Federal legislation(50) to include treaties with the German Democratic Republic.(51) The Court therefore distilled the ratification law and the Basic Treaty, including the Additional Protocol, as the appropriate subjects of its review.(52)

            The Court identified the Basic Law as the measuring standard and added several considerations for exercising its prerogative of giving binding interpretations of the Basic Law.(53) It explained that mere treaty law was not able to alter the existing constitutional...