Ten Years of Basic Law Amendments: Developing a Constitutional Model of German Unification

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ABSTRACT

On October 3, 1990, West and East Germany officially united. Although several unification methods were possible, the unification occurred by East Germany acceding to the West German Constitution--the Basic Law--through a series of treaties. This "treaty route" to unification necessarily required amendments to the Basic Law.

The primary unification instrument, the Treaty on the Establishment of German Unity, detailed the Basic Law amendments that were immediately essential to effectuating unification. The treaty, however, also contemplated additional Basic Law amendments arising from the consequences of unification. In fact, in the ten years following German unification, the German legislature passed six Basic Law amendments that directly addressed unification issues.

This Note analyzes the unification amendments to the Basic Law, identifying both the positive and the negative constitutional effects of German unification. The Note organizes these constitutional effects into a Constitutional Model of German Unification. The Constitutional Model of German Unification: (1) identifies and explains the constitutional characteristics of unification, (2) proposes constitutional recommendations for future unifying States, and (3) predicts the content of future unification amendments to the Basic Law.

I. INTRODUCTION(1)

On October 3, 1990, West and East Germany officially united to form a single, enlarged Federal Republic of Germany.(2) The unification occurred in accordance with the Treaty on the Establishment of German Unity (Unification Treaty) of August 31, 1990.(3) The treaty route to German unification(4) had been strongly endorsed by the East German elections of March 18, 1990.(5) In fact, the Unification Treaty itself was only one of several agreements that was necessary to realize German unification.(6) The Treaty Establishing a Monetary, Economic and Social Union (May 18, 1990)(7) and the Treaty on the Final Settlement With Respect to Germany (September 12, 1990)(8) also contributed significantly to the unification process. During and following the 1990 unification Germany amended its Constitution or Grundgesetz (Basic Law)(9) thirteen times, affecting forty different articles of that document.(10) The Basic Law had been amended thirty-five times between its original promulgation on May 23, 1949, and German unification in 1990.(11)

This Note will develop a Constitutional Model of German Unification by analyzing the Basic Law amendments that occurred as a result of German unification. The constitutional model will identify and explain the implications of the unique positive and negative constitutional characteristics of German unification. The development of a Constitutional Model of German Unification is important for three reasons: (1) to provide an analytical framework within which future unifying States may evaluate and implement their own unification; (2) to propose a set of constitutional recommendations for future unifying States based on Germany's unification experience; and (3) to predict the content of future Basic Law amendments relating to unification.

Section II will describe the processes by which Germany amends the Basic Law and enters into treaties. This section will also explain the constitutional authority under which Germany entered into the unification process. Next, Section II will detail the constitutionally significant provisions of the Unification Treaty and the Treaty Establishing a Monetary, Economic, and Social Union (MESU Treaty).(12) Finally, this section will briefly describe the content of each of the thirteen Basic Law amendments since 1990.

Section III will: (1) identify the Basic Law amendments that resulted from unification; (2) detail the provisions of each amendment; (3) explain how each amendment relates to unification; and (4) describe how each amendment contributes to the Constitutional Model of German Unification. …