Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of the Federal Republic of Germany.
The West German constitution was adopted in Bonn on 8 May 1949 and came into effect on 23 May after having been approved by the occupying western Allies of World War II on 12 May. It was termed "Basic Law" to indicate that it was a provisional piece of legislation pending the reunification of Germany. However, when reunification took place in 1990, the Basic Law was retained as the definitive constitution of reunified Germany. Its original territory of application —that is, the states that were initially included in the Federal Republic of Germany—consisted of the three Western Allies' zones of occupation, but at the insistence of the Western Allies, formally excluded West Berlin. In 1990, the Two Plus Four Agreement between the two parts of Germany and all four Allies stipulated the implementation of a number of amendments.
The German word Grundgesetz may be translated as either "Basic Law" or "Fundamental Law". The term Verfassung was avoided as the drafters regarded the Grundgesetz as an interim arrangement for a provisional West German state, expecting that an eventual reunified Germany would adopt a definitive constitution. Article 146 of the Basic Law stipulates that such a constitution must be "freely adopted by the German people". Nevertheless, although the amended Basic Law was approved by all four Allied Powers in 1990, it was never submitted to a popular vote, neither in 1949 nor in 1990. However, the Basic Law as passed in 1949 also contained Article 23, which provided for "other parts of Germany" to "join the area of applicability of the Basic Law": this was the provision that was used in the 1990 German reunification from a constitutional standpoint. As the overwhelming consensus thereafter was that the German question was settled, and to reaffirm the renunciation of any residual German claim to land east of Oder and Neiße, Article 23 was repealed as of the day of reunification. An unrelated article on the relationship between Germany and the European Union was instead inserted in its place two years later. As a heritage of the Lesser German solution, neither was unification with Austria aspired for.
In the preamble to the Basic Law, its adoption was declared an act of the "German people", and Article 20 states that "All state authority is derived from the people". These statements embody the constitutional principles that "Germany" is identical with the German people and that the German people act constitutionally as the sovereign of the German state. Where the Basic Law refers to the territory under the jurisdiction of this German state, it refers to it as the "federal territory", thus avoiding any implication of a constitutionally defined "German national territory".
The authors of the Basic Law sought to ensure that a potential dictator would never again be able to come to power in the country. Although some of the Basic Law is based on the Weimar Republic's constitution, the first article is a protection of human dignity and human rights; they are core values protected by the Basic Law. The principles of democracy, republicanism, social responsibility, federalism and the rule of law are key components of the Basic Law. Articles 1 and 20 are protected by what is called the eternity clause, Article 79, which prohibits any amendment or removal of the principles laid down in Articles 1 and 20.
Fundamental rights
Fundamental rights are guaranteed in Germany by the Federal Constitution and in some state constitutions. In the Basic Law, most fundamental rights are guaranteed in the first section of the same name. They are subjective public rights with the constitutional rank which bind all institutions and functions of the state. In cases where a federal or state law or public ordinance is alleged to be in violation of these fundamental rights, the Basic Law provides the constitutional complaint with an appeal to the Federal Constitutional Court. Article 1 of these fundamental rights, which states that human dignity shall be inviolable and all state authority shall respect and protect it, cannot be changed or removed. The same is true of Article 20, which enshrines fundamental principles of the state—for example, that Germany is a state of law and a democracy. Laws which limit these basic rights are in no case allowed to affect the essence of these rights. Some people think every basic right cannot be changed or removed. However, that is a misconception as other fundamental rights are not protected by Article 79 paragraph 3.According to this regulation the Federal Constitutional Court can be called not only because of a violation of fundamental rights, but also by violation "of the rights set out in Article 20 paragraph 4 and Articles 33, 38, 101, 103 and 104". Hence, these rights are called the rights identical to fundamental rights.
Extensions of the field of application by Article 23
The 1949 Basic Law was explicitly irredentist, maintaining that there remained separated parts of 'Germany as a whole' in the form of German peoples living outside the territory under the control of the Federal Republic of 1949, with whom the Federal Republic was constitutionally bound to pursue reunification, and in respect of whom mechanisms were provided by which such other parts of Germany might subsequently declare their accession to the Basic Law. Since initially the Basic Law did not apply for all of Germany, its legal provisions were only valid in its field of application. This legal term was frequently used in West German legislation when West German laws did not apply to the entirety of German territory, as was usually the case.Article 23 of the Basic Law provided other de jure German states, initially not included in the field of application of the Basic Law, with the right to declare their accession at a later date. Therefore, although the Basic Law was considered provisional, it allowed more parts of Germany to join its field of application. On one side, it gave the Federal Republic of Germany—composed as it was in 1949—no right to negotiate, reject or deny another German state's declaration of its accession to the FRG, subject to the FRG's recognising that state de jure and being satisfied that the declaration of accession resulted from the free self-determination of its people; while on the other side an acceding state would have to accept the Basic Law and all laws so far legislated under the institutions of the FRG as they were. As the Federal Republic could not itself declare the accession of another part of Germany under Article 23, this provision could not be applied as an instrument of annexation, nor could accession under Article 23 be achieved by international treaty with third party states, although the Federal Constitutional Court recognised that a future declared accession could be framed de facto as a compact between the Federal Republic and the acceding state. It remained unclear whether accession under Article 23 could be achieved by a part of Germany whose government was not recognised de jure by the Federal Republic, and if so how; but in practice this situation did not arise. Article 23, altered after 1990, originally read as follows:
Whereas the West German state had gained restricted sovereignty in May 1955, the Saarlanders rejected in a referendum the transformation of their protectorate into an independent state within the emerging European Economic Community. The Saar Treaty then opened the way for the government of the Saar Protectorate to declare its accession to the West German state under Article 23, including the new Saarland into the field of application of the Basic Law. The Saar held no separate referendum on its accession. With effect from 1 January 1957 the Federal Republic regarded itself as including almost all of Western Germany such that the only "other parts of Germany" to which Article 23 might be extended were now to the east, hence relinquishing all claims to those western parts of the former German Reich that had been surrendered to France and Denmark.. The towns of Elten, Selfkant, and Suderwick, which had been occupied and annexed by Netherlands in 1949, were reunited with the Federal Republic in 1963 by means of an international treaty without invoking Article 23.
The Basic Law, in its original form, maintained the continuing existence of a larger Germany and German people, only parts of whom were currently organised within the Federal Republic. Nevertheless, the full extent of the implied wider German nation is nowhere defined in the Basic Law, although it was always clearly understood that the peoples of both East Germany and Berlin would be included. In its judgement of 1973, confirming the constitutional validity of the Basic Treaty between East Germany and West Germany, the Federal Constitutional Court justified the recognition of East Germany as a valid German state, on the basis that this would enable the GDR in the future to declare accession to the Basic Law under Article 23. But the Court then explicitly acknowledged that this limited de jure recognition of the GDR also implied acceptance of the constitutional power of the GDR in the interim to enter into international treaties on its own account, naming specifically the treaty with Poland which confirmed the transfer of the "Eastern Territories" to Polish sovereignty.
The Communist regime in East Germany fell in 1990. Following free elections the parliament of the GDR declared the accession of the GDR according to Article 23 to the Federal Republic of Germany to come into effect on 3 October 1990, making unification an act unilaterally initiated by the last East German parliament. East Germany's "declaration of accession" envisaged states within East Germany being included into the field of application of the Basic Law, but subject to the Basic Law first being amended in accordance with both the previously negotiated Unification Treaty between East and West Germany, and also the Two-Plus-Four Treaty, under which the Allied Powers had relinquished their residual German sovereignty. So, on the date of accession of East Germany to the Federal Republic of Germany Article 23 was repealed, representing an explicit commitment under Two-Plus-Four Treaty that, following the unification of East Germany, West Germany and Berlin, no "other parts of Germany" remained in east or west to which the Berlin Republic might validly be extended. Rather than adopting a new constitution under Article 146 of the Basic Law, the Bundestag amended Article 146 and the Preamble of the Basic Law to state that German unification had now been fully achieved, while also adding a further clause 143 to entrench in the Basic Law the irreversibility of acts of expropriation undertaken by the Soviet occupying powers between 1945 and 1949. Hence when the GDR's nominal accession to the Federal Republic under Article 23 came into effect on 3 October 1990, Article 23 was no longer in place. Strictly therefore, German reunification was effected by the Unification Treaty between two sovereign states, the GDR and the Federal Republic, and not by the GDR's prior declaration of accession under Article 23, although the former Article 23 was agreed by both parties to the Treaty as setting the constitutional model by which unification would be achieved.
As part of the process, East Germany, which had been a unitary state since 1952, was re-divided into its initial five partially self-governing states, being granted equal status as the already existing Länder, with East and West Berlin reuniting into a new city-state. After the changes of the Basic Law, mostly pertaining to the accession in 1990, additional major modifications were made in 1994, 2002 and 2006.