Criticism of German foreign policy, which at the same time questions the German constitution, is of little help. It ignores the fact, that the Basic Law is the best substantiated line of argumentation for peace policy and international understanding.
The recognition and formulation of natural law and the incorporation of natural law into positive law means that ethics and law are no longer opposites. Today, human kind can look back on a canon of codified international law based on natural law and thus ethics (for example, large parts of the UN Charter of 1945, the Declaration of Human Rights of 1948, the Human Rights Pacts of 1966). Most constitutions of the nation states have also incorporated principles of natural law.
This also applies to Germany. The version of West German Basic Law formulated in 1948 and 1949 was under the strong influence of natural law, following the catastrophic consequences of pure juridical positivism. To this day, the key points have remained in Basic Law – despite numerous and questionable constitutional amendments. This must always be remembered.
Article 1 and Article 20 of the Basic Law provided for the “eternity clause” of Article 79, paragraph 3. The outstanding importance of the content of these two articles should thus be stressed. Even a slight deviation from these articles is completely unconstitutional.
Article 1, unchanged thru today, reads as follows:
“1 Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
2 The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
3 The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.“
Article 20 originally read:
“1 The Federal Republic of Germany is a democratic and social federal state.
2 All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.
3 The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.“
Paragraph 4 of Article 20, which regulates the right of resist, was first added in 1968 as a result of emergency legislation.
Articles 1 and 20 are closely related. The legislature was faced with the question of how to organise a state where respect and protection of human dignity, human rights and fundamental rights are best guaranteed. Resulting were the four state principles in Article 20: the principle of democracy, the rule of law, the federal state principle and the welfare state principle. Additionally, there is the separation of powers and control of powers.
But also, the commitments formulated in Articles 25 and 26 connected to the general rules of international law, international understanding and the ban on the preparation of a war of aggression were not only the result of immediately preceding history, but were also an expression of natural law, i.e. fundamental ethical thinking. These two articles deserve to be quoted again and again.
Article 25 reads:
“The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.”
Article 26, paragraph 1, reads:
“Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offence.”
These constitutional articles, which are currently not sufficiently observed and fulfilled, result in rights and obligations for every German and Germany. Every day a look at our media shows us how far Germany has moved away from these constitutional provisions.
These constitutional provisions must also be observed in Germany’s international relations. It is unconstitutional that German politicians and the German media are helping to press Russia into an enemy image/stereotype and even to provoke a war against this country. Nor is it acceptable that German government members publicly say that they have no legal recourse against the decisions and the subsequent measures of the US administration in dealing with the US termination/denunciation of the nuclear agreement with Iran and the associated announcement of unilateral sanctions contrary to international law – not only against Iran, but also against German companies trading or investing in Iran.
With such statements, the German government declares itself incapable of acting. Such an inability to act in view of injustice fits neither the German constitution nor a constitutional state, nor the constitution of a sovereign state.
If in such a situation the representatives of the German state, who no longer respect the constitution, are faced with an “opposition” that claims to criticize the government sharply but at the same time distances itself from the German constitution, then this is of little help.
Germany and the Germans are well advised to centre their arguments around the basic principles of the country‘s constitution. Everybody must be committed to this. This is a sustainable perspective in dealing with sanctions and war policy that violate international law. •
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