German foreign policy and the Basic Law
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By Christopher Hill
May 2019
BOLOGNA, Italy — Only the most unreconstructed realist would deny that constitutional structures have a significant influence on the way in which a country conducts its foreign policy. The United States may be a superpower, but the implementation of its external relations is constantly affected by the separation of powers between the President, the Congress and the Supreme Court. How much more is this the case, then, for the Federal Republic of Germany (FRG), a country whose political system was created with the main aim of constraining its foreign policy behavior through embedding the principle of “never again war” — meaning that its armed services were only to exist for defense purposes. These restrictions are set out explicitly in the FRG’s constitution, its “Basic Law” of 1949 (Articles 25, 26, 32, 45 a&b, 87 a&b, 115 a,b,c,d & e).
As all countries claim that they are only interested in “defense,” while behaving in a wide variety of ways, the term is inherently ambiguous. It has been stretched to include forward defense, preventive war and humanitarian intervention. Germany, however, has kept close to the letter of the law since regaining the right to its own national armed forces in 1955 and even since regaining the status of full sovereignty in 1990. This means that, in practice, the FRG has pursued a distinctively peaceful and progressive foreign policy, the inverse of the 1930s form of Sonderweg. During the Cold War, it was content to prove a loyal member of the NATO alliance, which was providing its security, and never had to face the issue of involvement in “out of area” operations[1], even in Vietnam, where at one stage the United States was so desperate for demonstrations of support that it demanded the dispatch of 1,000 German troops, a proposal which was never realistic[2].
After the Cold War, however, circumstances combined to put the new Berlin Republic under pressure to pursue a more forward foreign policy. The disintegration of Yugoslavia, expectations for the Europeans’ new Common Foreign and Security Policy, and the impatience of some parts of German opinion to see the country accepted as a “normal” international actor again led to demands that Berlin take on new international responsibilities, particularly in relation to humanitarian peacekeeping operations. At the same time, the FRG showed itself keen to become a permanent member of the UN Security Council — although this proved to be a premature hope.
In parallel, Germany’s domestic society was changing in diverse ways, complicating both understandings of the Basic Law and the conduct of foreign policy. On the one hand, the Law’s acceptance that new territories might wish to accede to Germany (i.e., principally the German Democratic Republic) was no longer relevant. Indeed, the associated law of citizenship based on the ius sanguinis was increasingly incompatible with the de facto emergence of a multicultural society. Change was slowly underway in terms of recognizing the rights of those not born in Germany or to German parents. On the other hand, that very cosmopolitanism was generating calls to extend the country’s international role beyond its staunch support for its American ally and for Israel. This meant an early recognition of the independence of Croatia and Slovenia, and the willingness to provide military support for the operation in 1999, which secured Kosovo its independence from Serbia. The Basic Law’s insistence that the “German people [therefore] acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world” (Article 1:2) thus turned out to have important implications for national foreign policy once full sovereignty and international legitimacy had been achieved.
Yet humanitarian intervention was, by now, about more than foreign aid. As over Kosovo, it involved peace enforcement, which in turn meant the use of military force (firstly through air power) and the willingness to kill and be killed. This new scenario was deeply uncomfortable for a generation brought up to respect the letter and the spirit of the Basic Law. It was particularly so because of the growing awareness that Germany was moving on from being an economic giant towards realizing once more its potential as a great power, leading to debate over how far the country was justified in prioritizing its own “national” interests over wider considerations of peace and solidarity with other states. In that sense, modern Germany is unavoidably pulled between two horses: realism and normalcy on the one side and legalism/pacificism on the other[3].
This tension is not wholly resolved, as German decision-makers have hoped, by participation in the European foreign policy process. Germany has certainly kept, and continues to keep, a much lower profile than France or Britain. But its influence has steadily grown, driven in part by economic strength. What is more, as other Member States have shown themselves willing to defect from common positions when they deem it necessary, so has Germany become more willing to go it alone — albeit often for motives arising out of the philosophy of the Basic Law. The prime example here is Chancellor Merkel’s decision to open the German frontier to Syrian refugees in August 2015, despite the fact that this blew a hole in the EU’s Dublin accord, which said that asylum-seekers should be processed only in their country of arrival, and the inevitable encouragement it gave to hundreds of thousands of migrants from all sources to head for Europe. It was a generous decision wholly compatible with the FRG’s political and legal culture.
Unfortunately, matters became ever more complicated as public opinion across Europe became more anxious, in some cases positively hostile, to the large wave of migration, while the logistics inside Germany became quickly more difficult. For its part, the European Union completely failed its test of solidarity, leading the Chancellor to follow a more traditional path. Her bilateral diplomacy with Turkey, holding out the carrot of significant resource transfers, was seen by some as a brutal example of realpolitik, bribing Ankara to ensure that refugees stayed away from Europe, just as Germany had strong-armed Greece during the latter’s financial crisis and was to leave Italy to face the next wave of migration, from Libya, for the most part alone[4].
The Basic Law arose from the disaster which was Nazism. Its provisions accordingly imposed unusual constraints on the conduct of national foreign policy, which cannot easily be changed, although they have already been finessed. The Law instituted some indelible historical memories. But the FRG has acquired an historical memory of its own, which shapes its choices almost as profoundly. The habits of caution, civilian power, economic diplomacy and multilateralism are now part of the mental furniture of the German public. In that sense, the Basic Law has created attitudes and norms just as much as constitutional constraints.
Christopher Hill is the Wilson E. Schmidt Distinguished Professor at the Johns Hopkins University School of Advanced International Studies (SAIS).
[1]In fact, only in 1994 was it established by a decision of the German constitutional court that out-of-area operations of the “Bundeswehr” are constitutional.
[2]Eugenie M. Blang (2004), ‘A reappraisal of Germany’s Vietnam policy, 1963-1966: Ludwig Erhard’s response to America’s war in Vietnam’. German Studies Review, 27 (2), 341-360.
[3]Pacificism, as opposed to pacifism, is the tendency to believe that the use of force is almost always unjustified in international relations, although it must be kept as a last resort. Pacifism stands for the absolute prohibition of violence in all circumstances. See Martin Ceadel (1987) Thinking about Peace and War (Oxford: Oxford University Press).
[4]Leonard August Schuette (2018), ‘Collective memory in Germany and the great foreign policy debate: the Case of the European refugee crisis’, Cambridge Review of International Affairs, 31:3-4, 272-290.
