The Grass Will Not Be Trampled Because the Tigers Need Not Fight: New Thoughts and Old Paradigms for Detente across the Taiwan Strait

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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.

I. 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.

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

A. 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)

B. 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)

a. 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 order.(54) The Court emphasized that among several possible interpretations of a treaty only those complying with the Basic Law were allowed.(55) It added that adherence to judicial self-restraint meant that the Court would not "play politics" or intrude into the space created and delimited by the Basic Law for free policy-making by the other constitutional bodies.(56) The Court concluded that in light of the Basic Law's decision for comprehensive constitutional review, the executive should not seek to out-maneuver pending proceedings, and therefore a treaty should not enter into force before an abstract norms-control judgment was handed down.(57)

b. Substance(58)

The Court determined that the Basic Treaty was compatible with the Basic Law.(59) The Court prefaced the details of the Treaty's constitutional assessment with an analysis of the legal status of Germany and a description of the relevant legal frameworks.(60)

The Court explained that, pursuant to the Basic Law, the Federal Republic of Germany was "partially identical" with the German Reich that continued to exist despite its incapability to act.(61) In this sense, the sovereign power of the Federal Republic of Germany, as a newly organized part of Germany, was confined to the area covered by the Basic Law.(62) The Court added that, because the German Democratic Republic was also part of Germany, it did not constitute a foreign country in relation to the Federal Republic of Germany.(63) The Court identified reunification in the exercise of self. determination as a constitutional command.(64) Within this constitutional parameter, the Court continued, the Federal Government enjoyed a margin of evaluation and discretion with respect to the political ways and means to achieve the reunification goal.(65) The Court, however, admonished that the Basic Law barred the Federal Republic of Germany and its constitutional organs from relinquishing the constitutionally mandated legal title (Rechtstitel) to the realization of German unity and self-determination.(66) Similarly, creating a title incompatible with the Basic Law or becoming involved with the establishment of an anti-constitutional position were disallowed.(67) According to the Court, all constitutional organs were obliged to maintain the claim to reunification alive domestically and defend it with vigor externally. Any political conduct that forfeited the reunification goal was constitutionally outlawed.(68) The Court noted that it was not called upon in this case to decide whether a sole claim to represent Germany as a whole (Alleinvetretungsanspruch fur Deutschland als Ganzes) potentially held by the Federal Republic of Germany was rooted in the Basic Law.(69) In summary, the Court found that the Treaty had not left the constitutional bedrock.(70)

The Court then discussed the Basic Treaty within its broader contexts.(71) According to the Court, the Treaty was part of the Federal Government's comprehensive East Policy directed at detente and expressed in the Treaties of Moscow and Warsaw.(72) The Basic Treaty, which did not contain a time limitation nor a denunciation clause, constituted a fundamental reorientation of the relations between the Federal Republic of Germany and the German Democratic Republic and provided the basis for future legal specifications with respect to shaping the new coexistence and togetherness of the two states.(73) The Court observed that the Basic Treaty was embedded in more comprehensive and specific legal frameworks.(74) This, according to the Court, was evidenced by the Treaty's reference to the United Nations and its clause leaving intact the bilateral and multilateral international treaties and agreements that were concluded by the Federal Republic of Germany and the German Democratic Republic as well as those affecting the two states.(75) The Court stated that, even in the absence of a formal recognition of the German Democratic Republic by the Federal Republic of Germany, the German Democratic Republic was a state and subject of international law.(76) In light of the consistent previous practice of explicitly denying a formal recognition to the German Democratic Republic, the Court characterized the Federal Republic of Germany's new policy of detente, especially the conclusion of the Basic Treaty, as a factual recognition of a specific kind (besonderer Art).(77) The Court found that the Treaty had a dual character because, by its type, it exhibited an international law nature(78) and, by its content, it regulated "inter se relations" (inter-se-Beziehungen)(79)--a formula used for describing the special legal closeness between the two parties.(80) The Court concluded that not every "two-state model" (Zwei-Staaten-Modell) for Germany was anti-constitutional.(81)

The Court finally assessed the details of the Basic Treaty.(82) The Court found that the Preamble to the Treaty(83) and the letter on German unity(84) evidenced that the Federal Government did not relinquish the legal title and ability to promote the national unity of the German people through free self-determination and peaceful means in consonance with the general principles of international law.(85) The Court characterized the border between the Federal Republic of Germany and the German Democratic Republic as a border in national law(86) based on the continued existence of Germany as a whole.(87) The border confirmation, the Court added, amounted to a new and additional recognition by treaty that was compatible with the Basic Law.(88) The agreement between the parties of confining the exercise of their sovereign power to their respective territories was subject to the interpretation stipulating the continued existence of Germany as a whole.(89) The Court emphasized that the Basic Law prohibited the Federal Government from entering into a dependency, by treaty, that rendered incorporation of other parts of Germany subject to a prior agreement with its treaty partners.(90) In this sense, the Court explained, the Federal Republic of Germany was constitutionally bound to retain its role as the sole master of any future decisions with respect to other parts of Germany that were willing and able to accede to the Basic Law.(91) The Court summarized that the inclusion of other parts of Germany into one free German state had to remain legally possible after the entry into force of the Basic Treaty.(92)

The Court found the Treaty compatible with the constitutional citizenship provisions.(93) The broad notion of German citizenship, according to the Court, simultaneously applied to the citizens of the Federal Republic of Germany as well as to those Germans not currently residing in the Federal Republic of Germany.(94) The Court explained that all Germans, including the citizens of the German Democratic Republic, within the ambit of the Basic Law, were entitled to all guarantees of the fundamental rights(95) and the full protection by the courts as well as other avenues, such as the Federal Republic of Germany's diplomatic representations and membership in international organizations.(96)

The Court scrutinized the various areas of cooperation contemplated by the Basic Treaty for future agreements against the measuring standards of the Basic Law.(97) The Court emphasized that, in the areas of postal and telecommunications, the Federal Government was disallowed from handing away the guarantee of the secrecy of letters, postal, and telecommunications,(98) as well as from restricting the freedom to exchange opinions and information.(99) Moreover, according to the Court, trade between the Federal Republic of Germany and the German Democratic Republic was barred from becoming foreign trade through the erection of customs borders of any type.(100) The Court further held that the Treaty was unable to alter the independence of developing television and broadcasting programs(101) or to restrict the freedom of association.(102) The Court added that the Treaty did not dispense the federal and state institutions from their constitutional duty to keep the public consciousness alive with respect to the common features as well as the ideological, political, and social distinctions between the Federal Republic of Germany and the German Democratic Republic.(103) The Court clarified that the practices at the border between the Federal Republic of Germany and the German Democratic Republic, including the wall, barbed wire, free-fire zones, and the order to shoot, were incompatible with the Treaty.(104) In sum, the Court held that the Basic Treaty, in the interpretation advanced in the decision, did not contradict the Basic Law.(105)

c. Observations

The Basic Treaty decision ranks among the classics in the history of the Federal Constitutional Court. It reflects the Court's unique methodology and cautious, yet determined, adjudication of politically charged controversies.

The Court interpreted the Basic Treaty in such a way that it was not found violative of the Basic Law's requirement for the German people to work for unity.(106) The Court saved the Basic Treaty through a technique that is known as "interpretation in conformance with the constitution" (verfassungskonforme Auslegung).(107)

Deciding that under the Basic Treaty Germany could still be conceived as one nation, that had been reorganized temporarily into two entities, the Court advanced the position that the German state represented by the Reich never ceased to exist.(108) This was the premise of the four principal continuation theories (Fortbestandstheorien), which held that the German state did not perish with the surrender in 1945(109) or at any time later.(110) The state-nucleus theory (Staatskerntheorie) asserted the identity of the Federal Republic of Germany and the German Reich, however, distinguished between the state territory and the scope of application of the Basic Law.(111) The shrink-state theory (Schrumpfstaatstheorie) posited that the state territory of the German Reich was reduced to the state territory of the Federal Republic of Germany.(112) The roof theory (Dachtheorie) diagnosed that the German Democratic Republic and the Federal Republic of Germany were two legal entities existing under the one roof of the invisible, but extant, German Reich.(113) The partial-identity theory (Teilidentitatstheorie) contended that the Federal Republic of Germany was (at least partially) identical with the Reich and exerted German state power as the allies relinquished it,(114) even though the Federal Republic of Germany did not control all of the territory formerly belonging to the Reich.(115) In contrast to the continuation teachings, the two main termination theories (Untergangstheorien) held that the German Reich perished as a subject of international law due to the unconditional capitulation or certain subsequent events.(116) The total-conquest theory (Debellationstheorie) provided that the surrender of the German Reich and the takeover of the government by the allied powers extinguished the element of state power and replaced it with a "condominium."(117) The dismemberment theory (Dismembrationsthorie) stipulated that the German Reich split into two new parts that were not her legal successors.(118)

The legal positions of the German Democratic Republic and the Federal Republic of Germany changed several times. The German Democratic Republic initially asserted its full identity with Germany as a whole and denied the existence of two German states.(119) After a short flirt with the roof theory, the German Democratic Republic switched to the total-conquest theory arguing that, in the wake of the extinction of the German Reich, two independent successor states had emerged.(120) The Federal Republic of Germany viewed itself as the only legitimate successor to German state power formerly exerted by the Reich.(121) The associated claim to sole representation of Germany as a whole in the international arena, however, failed vis-a-vis the Western Powers and the other countries at large.(122) The New East Policy exhibited aspects of the shrink state and roof theories.(123) The Federal Constitutional Court tilted toward the partial-identity theory.(124) The Federal Republic of Germany most ostensibly expressed its assertion of responsibility for Germany as a whole in the area of nationality and citizenship.(125) The case law of the Federal Constitutional Court basically confirmed the broad approach to German nationality.(126)

International law suggested that the German Reich had not perished.(127) At the same time, however, the dismemberment of the German Reich and subsequent rise of two new states(128) or, in the alternative, the secession of the German Democratic Republic and corresponding shrinking of the German Reich to the territory of the Federal Republic of Germany(129) remained plausible constructions. The assessment problems associated with evidencing the processes underlying a status determination for Germany was for practical purposes resolved on the basis of divided-state or two-states models.(130) This pragmatic approach constituted the …