Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.
Similarities seem to appear everywhere once one starts comparing reunification processes from a constitutional perspective. While recent constitutional developments seem to point in the direction of separation and independence movements rather than reunification, the German example springs to mind as a possibly comparable historical situation. However, as with all constitutional comparisons, the ever present historical, political, social and economic differences between states need to be kept in mind. Thus, there are certainly no ready-made and direct lessons to be learned but there might be some broader considerations that could point the way to what to expect, what best to avoid and hints to possible pitfalls in a constitutional reunification.
Starting Point: The Cold War
The border between the Federal Republic of Germany (FRG) and the German Democratic Republic (GDR) was also the border between the two major competing political and economic geopolitical blocks in the post-WW II period. Communism and capitalism clashed in a single country. The two German states were paradigmatic for the ideas and ideologies of capitalist and socialist systems, and they fought on many levels. One can say that up until the 1980s, the FRG and the GDR were archenemies.
Then, things started to shift in favour of the capitalist model as the economic collapse of the GDR was imminent. Civil society protests against the totalitarian approach of the SED (Sozialistische Einheitspartei Deutschlands, Socialist Unity Party of Germany) paved the way for a non-violent change. Where border patrol soldiers had previously shot those wanting to cross the border, forcefully separated families reunited on that truly magic night of the 9th November 1989 that to this day I remember vividly as a child growing up in Berlin.
At that point in history, the capitalist system seemed to be the “winner”. And before too long, the FRG indeed took it all.
Constitutional Theory: Constitution-Making Power or Constituted Power?
The Constitution of the FRG was not even called a “constitution” because the parliamentary assembly in 1948/49 thought of the “Basic Law” as an interim solution until Germany would be reunited. Article 146 of the Basic Law shows this quite clearly. In its 1949 version it read:
“This Basic Law loses its validity on the day on which a constitution comes into force which has been freely decided by the German people.”
There were various competing interpretations of what this article actually meant. Some figured it regulated the constitutional way to reunification. Others sought and found deeper meaning: they understood Article 146 to regulate the constitution-making power as opposed to the constituted power. Proponents of this view argued that a reunited German people would be absolutely unbound by the then invalid Basic Law.
Both politicians and constitutional lawyers did not foresee the events of November 1989. What had seemed to be a largely theoretical academic debate suddenly and unexpectedly became a relevant and decisive question.
No New Constitution for the Reunified German People
Contrary to an intuitive reading of Article 146, the Basic Law continues to be the Constitution of the (now reunified) Federal Republic of Germany No. 2. The new state even kept the name of the capitalist part of the country.
Instead, a solution was found by negotiating a lengthy “Unification Treaty”, concluded on the 31st August 1990. This international treaty between the FRG No. 1 and the GDR regulated the legal dissolution of the GDR, its accession to the Federal Republic of Germany and, finally, German unity. The GDR simply ceased to exist, its territory was transformed to fit into the federal organisation of the FRG No. 1, and all substantive decisions of the Basic Law extended to apply in the five new federal states.
Several annexes of a highly detailed and legally complex nature extended the validity of all law of the FRG No. 1 to the territory of the acceding GDR. Some exemptions were made, for example in funeral law, but largely the law of the former GDR ceased to exist at the same time as the socialist state.
Wounds that do not Easily Heal
The populace of the former GDR had to pay an unequally distributed share of the costs of German reunification – economically, mentally, politically, and democratically. The state in which people had grown up and which they knew, even if they disliked the authoritarian setup, disappeared overnight, and with it most laws regulating daily life. Everything was new now. The ideology of the former GDR was “defeated”, and so was its population. In November 1990, the widely circulated cover of a satirical journal from West Germany depicts “Zonen-Gabi” (Gabi, a woman from Eastern Germany) holding a partly pealed cucumber with the caption: “My First Banana”.
“Ossis”, people from East Germany, having grown up behind the Iron Curtain, were believed to be backward, not cultivated, and generally in need of thorough democratic education. Many “Wessis”, people from West Germany, were sent to fill the leading positions in administration and the former socialist companies. Soon, they were known as “Besser-Wessis” (those from West Germany that know everything better). Differences between the populaces of West Germany (former FRG No. 1) and East Germany (former GDR) were exacerbated, and they continue to have a major impact. In terms of power relations and in an anti-discrimination perspective, these differences amount to a relationship similar to that between a dominating group (West Germans) and a dominated group (East Germans). Anti-discrimination law is, however, not in a position to address this structural inequality meaningfully and protect East Germans (evidenced by a Stuttgart Labour Court decision from 2010 which allowed a person to be disregarded for a job on the basis of them being an “Ossi”).
Economically, it was evident from the beginning that East Germany was in a dire condition. Nevertheless, in 1990 German Chancellor Helmut Kohl famously claimed:
“Through a joint effort, we will soon succeed in transforming Mecklenburg-Western Pomerania and Saxony-Anhalt, Brandenburg, Saxony and Thuringia into flourishing landscapes again in which it is worth living and working.”
To this day, East Germany is economically less well off than West Germany. Employees on average earn less, and pensions are lower. Young people tend to “flee” to West Germany, for economic reasons.
Finally, the decision to enact German reunification in this way has at least contributed to the rise of nationalist, populist, and fascist political movements. A xenophobic, outright racist and misogynist party such as the so called “Alternative for Germany” has its strongest footing in East German federal states.
From the perspective of many, of course not all, East Germans, German reunification was a deeply unsettling experience, rendering biographies and people superfluous. After the fall of the Iron Curtain, capitalist systems were no longer under pressure to prove their “human side”. In the 1990s, EU Member States, the FRG No. 2 among them, started to implement a form of turbocapitalism that hurt (and still hurts) not only the East Germans but the western part of the German population in a particularly brutal form. To them, German reunification must have appeared not so much as a unification but indeed more as an annexation.
Postponement of the Constitution-Making Power
No referendum was held in either the FRG No. 1 or the GDR. In fact, the “Unification Treaty” is said to be an example of legal genius, negotiated by lawyers and bureaucrats. The highly complex nature of the Treaty made it impenetrable to the not legally trained populace.
Even in this really broadly sketched little narrative, it is obvious that this constitutional moment in German history was not the time of constitution-making power. Rather, the constituted power of FRG No. 1, brought into the world by the Basic Law 1949, changed the wording of Article 146. Today it reads:
“This Basic Law, which, since the achievement of the unity and freedom of Germany, applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.”
The time at which all Germans can exercise constitution-making power, together, is apparently postponed to another day.