Article 32 of the Basic Law for the Federal Republic of Germany

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Article 32 of the Basic Law for the Federal Republic of Germany (GG) is standardized in the second section of the Basic Law, which regulates the structural basis of the Federation and the Länder . The standard determines the association responsibilities of the federal and state governments with regard to maintaining Germany's foreign relations. This particularly includes the conclusion of international agreements . In principle, this is the responsibility of the federal government. However, the federal states may conclude international treaties insofar as these affect matters that fall within their legislative competence . Whether the federal government is also authorized to conclude contracts in this area is a matter of dispute in jurisprudence. In political practice, this dispute was settled by the Lindau Agreement of November 14, 1957.

The content of Art. 32 GG is related to Art. 59 GG. This determines which federal body is responsible for concluding international treaties, i.e. regulates the body's competence . As a special provision on the distribution of competences, Art. 32 takes precedence over general Art. 30 of the Basic Law.

Normalization

Since the Basic Law came into force on May 24, 1949, Art. 32 GG has read as follows:

(1) The federation is responsible for maintaining relations with foreign states.

(2) Before the conclusion of a contract that affects the special circumstances of a country, the country must be heard in good time.

(3) Insofar as the states are responsible for legislation, they can, with the consent of the federal government, conclude contracts with foreign states.

History of origin

Art. 32 GG is based on Art. 78 of the Weimar Imperial Constitution (WRV) from 1919, which in turn is based on the forerunners of the Bismarckian Imperial Constitution of 1871 and the Paulskirche Constitution of 1849.

Federal competence for maintaining external relations

Article 32 (1) of the Basic Law provides that the Federation is responsible for maintaining relations with foreign states. According to this, he may appear towards them and act in a manner relevant to international law, for example by concluding a contract. The federal responsibility is to ensure that Germany is represented uniformly under international law.

According to general opinion, the concept of the foreign state is too narrowly defined in jurisprudence. The wording is historical. In a manner relevant to international law, however, the Federal Republic of Germany can interact not only with states, but also with non-state subjects of international law . Therefore, these also fall under the concept of the foreign state within the framework of Article 32 paragraph 1 of the Basic Law. This standard therefore covers the maintenance of relationships with other states, international organizations such as NATO and the UN, as well as the International Committee of the Red Cross and the sovereign Order of Malta . However , according to the prevailing view in jurisprudence, the Holy See is not considered a foreign state, despite its subjectivity under international law. Proponents of this view argue with historical aspects and the special spiritual position of the Holy See, which distinguishes it from other subjects of international law. The competence to conclude concordats is therefore assessed according to the general provisions on legislative competence.

Article 32 (1) of the Basic Law makes no statement as to whether the federal government may implement a binding under international law domestically . According to the prevailing dualistic view, international law represents an independent legal system that only becomes valid through a transformation into domestic law within the Federal Republic. The implementation of international law is judged according to the general distribution of competences between the Federation and the Länder in accordance with Article 70 of the Basic Law. According to Art. 32, Paragraph 1 of the Basic Law, there is only federal competence to enter into a binding under international law. Therefore, degree and implementation skills can fall apart. In this case, however, the requirement of federal-friendly action results in a mutual duty of consideration between the federal and state governments, which urges both to respect the interests of the other.

Protection of national interests

Art. 32 paragraph 2, 3 GG contain special provisions regarding the distribution of competences when concluding international treaties. These protect the interests of the countries.

Duty to be heard

According to Art. 32 Paragraph 2 of the Basic Law, the Federation that concludes a contract that affects the specific interests of a federal state must hear it before the contract is concluded. The state must therefore be given the opportunity to present its position on the treaty to the federal government. However, the federal government does not have to include this in the drafting of the contract. Due to the reference to specific national interests, the obligation to consult only exists if a country is particularly affected by the contract. This is not the case if several countries are affected in the same way by the treaty.

Contract conclusion competence

Article 32 paragraph 3 of the Basic Law gives the Länder the power to conclude international agreements. In this way, countries partly acquire the quality of a subject under international law.

A federal state is authorized to conclude a contract if the subject matter of the contract falls within its legislative competence. According to Article 70 of the Basic Law, this applies in principle to all matters that the Basic Law does not assign to the federal government. According to this, school law, for example, falls under the responsibility of the federal states. In the area of competing competences according to Art. 74 , Art. 105 Paragraph 2 of the Basic Law, the Land is responsible, unless the Federation makes use of its legislative competence. If the federal government enacts a regulation in the area of ​​a competing competence, on the basis of which the state had previously concluded a treaty, this does not affect the validity of the treaty under international law. Federal legislation only prevents the state from concluding further contracts.

For a country to be able to conclude a treaty, the approval of the federal government is still required . This is to prevent a country from affecting federal interests. The granting of consent is at the discretion of the federal government. However, it must not act in an abusive manner. In the absence of consent, the treaty is ineffective under international law as well as nationally.

In jurisprudence, it is controversial whether the final competence of the federal states is exclusive or competing.

According to one opinion, Article 32, Paragraph 3 of the Basic Law only contains an additional authorization for the Laender, which is in addition to the extensive federal competence from Article 32, Paragraph 1 of the Basic Law. This view is known as the centralized view or the Berlin solution. It is based on the fact that Art. 32 Paragraph 3 GG only speaks of the ability of the states. Therefore, the norm does not aim to shorten the federal government's competence to conclude a certificate from Art. 32 Paragraph 1 of the Basic Law. In addition, only comprehensive federal competence ensures that the Federal Republic appears as a unit under international law.

Some voices accuse this view of undermining the differentiated distribution of competencies between the federal government and the federal states by enabling the federal government to influence the federal states' areas of regulation by concluding international treaties. They therefore assume that Article 32, Paragraph 3 of the Basic Law only empowers the states to conclude contracts in the area of ​​state legislative powers. According to this, Art. 32, Paragraph 3 of the Basic Law is to be read in such a way that, in the area of ​​state legislation, only the states are authorized to conclude contracts. This view is known as the federalist view or the southern German solution. She argues that only those who are allowed to implement them in their own law should be able to conclude contracts.

A mediating view divides the powers between the federal government and the federal states. According to this North German solution, the federal government may also conclude international agreements in the area of ​​state legislation. However, it is forbidden to transform this into national law; only the federal states can do this.

The federal states and the federal government defused the legal dispute with the Lindau Agreement of November 14, 1957. This means that the federal government may also conclude international agreements in the area of ​​state legislative competences, which must be implemented by the states. However, the federal government must first reach agreement with the states concerned about the content of the contract.

The agreement has so far proven itself in practice. In jurisprudence, however, the legal nature and constitutional conformity of the agreement are controversial. From the point of view of the centralist view, this appears doubtful, since the states are given a say which they are not entitled to under Article 32 of the Basic Law. From the point of view of the federalist point of view, the federal government is given final authority to which it is not entitled under Article 32 of the Basic Law.

literature

  • Christian von Coelln: Art. 32 . In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  • Hans Jarass: Art. 32 . In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  • Bernhard Kempen: Art. 32 . In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 2 . Articles 20 to 82. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  • Martin Nettesheim: Art. 32 . In: Theodor Maunz, Günter Dürig (ed.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  • Ondolf Rojahn: Art. 32 . In: Ingo von Münch, Philip Kunig (Ed.): Basic Law: Comment . 6th edition. CH Beck, Munich 2012, ISBN 978-3-406-58162-5 .
  • Silvia Pernice: Art. 32 . In: Horst Dreier (Ed.): Basic Law Comment: GG . 3. Edition. Volume II: Articles 20-82. Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-148232-8 .
  • Rudolf Streinz: Art. 32 . In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .

Web links

Individual evidence

  1. ↑ Rudolf Streinz: Art. 32 , Rn. 1. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  2. ^ Christian Calliess: Staatsrecht III: References to international and European law . CH Beck, Munich 2014, ISBN 978-3-406-66834-0 , Part 2, A, Rn. 49.
  3. ^ Hans-Georg Dederer, Michael Schweitzer: Staatsrecht III: Staatsrecht, Völkerrecht, European law . 11th edition. 3: Constitutional law, international law, European law. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9343-8 , Rn. 301
  4. ↑ Rudolf Streinz: Art. 32 , Rn. 14. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  5. ↑ BVerfGE 2, 347 (374) : Kehler Hafen.
  6. ↑ Christian von Coelln: Art. 32 , Rn. 6. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  7. ↑ BVerfGE 6, 309 (362) : Reich Concordat.
  8. ↑ Bernhard Kempen: Art. 32 , Rn. 31. In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 2 . Articles 20 to 82. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  9. ↑ Hans Jarass: Art. 32 , Rn. 3. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  10. ↑ BVerfGE 111, 307 (318) : Görgülü.
  11. ^ Heiko Sauer: Staatsrecht III . 4th edition. CH Beck, Munich 2016, ISBN 978-3-406-69544-5 , § 6, Rn. 5-7.
  12. ↑ Christian von Coelln: Art. 32 , Rn. 7-9. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  13. ↑ Ondolf Rojahn: Art. 32 , Rn. 29. In: Ingo von Münch, Philip Kunig (Ed.): Basic Law: Commentary . 6th edition. CH Beck, Munich 2012, ISBN 978-3-406-58162-5 .
  14. ↑ Christian von Coelln: Art. 32 , Rn. 12. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  15. ^ Hans-Georg Dederer, Michael Schweitzer: Staatsrecht III: Staatsrecht, Völkerrecht, European law . 11th edition. 3: Constitutional law, international law, European law. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9343-8 , Rn. 295.
  16. ↑ Bernhard Kempen: Art. 32 , Rn. 43. In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 2 . Articles 20 to 82. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  17. ^ Hans-Georg Dederer, Michael Schweitzer: Staatsrecht III: Staatsrecht, Völkerrecht, European law . 11th edition. 3: Constitutional law, international law, European law. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9343-8 , Rn. 298.
  18. ↑ Joerenipses. - Control questions on constitutional law
  19. ↑ BVerfGE 2, 347 (370) : Kehler Hafen.
  20. ↑ Ondolf Rojahn: Art. 32 , Rn. 39. In: Ingo von Münch, Philip Kunig (ed.): Basic Law: Commentary . 6th edition. CH Beck, Munich 2012, ISBN 978-3-406-58162-5 .
  21. ↑ Rudolf Streinz: Art. 32 , Rn. 63. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  22. ^ Rudolf Geiger: Basic Law and International Law . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64739-0 .
  23. ↑ BVerfGE 42, 103 (113) .
  24. ↑ Distribution of competencies in the area of ​​external violence . CH Beck, Munich 1986, ISBN 3-406-31169-5 , p. 136 .
  25. ^ Hans-Georg Dederer, Michael Schweitzer: Staatsrecht III: Staatsrecht, Völkerrecht, European law . 11th edition. 3: Constitutional law, international law, European law. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9343-8 , Rn. 311-312.