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Excerpted from "Recent Changes in German Refugee Law: A Critical Assessment" by Sam Blay and Andreas Zimmermann -- American Journal of International Law, 4/94
Two of the most significant events of the 1980s were the fall of the Berlin Wall and the subsequent reunification of Germany. Since the beginning of the 1990s, however, the euphoria that greeted these events has given way to concern as Germany adopts measures to deal with the realities of reunification against a background of general political and economic instability in the former Communist states of Eastern and southeastern Europe. Of the many post-reunification problems, the influx of refugees into Germany has predominated.
By October 1992, about fifty thousand refugees were entering the country per month. By the end of 1992, the total number of refugee applicants was 438,191, an estimated 71 percent increase over the total for 1991, and more than that for the rest of Europe combined. This increasing number of refugee applicants focused attention on the liberal constitutional guarantee of the right of asylum, and whether it should be abolished, modified or amended dominated political discussions at the time.
In December 1992, the major political parties in Germany, after several months of negotiations, finally reached a compromise to amend the Constitution: it sought to balance the desire to stop the influx of asylum seekers by abolishing the constitutional right of asylum altogether with the desire to admit and protect applicants who might genuinely be in need of asylum. A law based on this compromise was subsequently enacted by the federal legislature and it entered into force in July 1993.
Since neither conventional law, in the form of the Refugee Convention of 1951 and its 1967 Protocol to which Germany is a party or customary international law provides for a right of asylum, there was no international law obligation on Germany to maintain a liberal posture regarding political asylum. On the other hand, when Germany or any party to the Convention decides to modify its refugee laws, it is obliged to ensure that, at the least, the new legal setting meets the minimum standards required by the Convention, in particular the obligation of "non-refoulement" under Article 33. Thus, even though the recent changes have appeared to satisfy domestic political demands, the issue remains whether they are compatible with Germany's obligations under the Convention.
To ensure that the changes are properly understood, we will first sketch the background to the amendment. We next discuss the changes themselves and then analyze them in the light of Germany's obligations under international law.
I. Background to the Constitutional Amendment
Prior to passage of the amendment, the principal source of German refugee law was Article 16(2) of the Constitution. It provided that "persons persecuted on political grounds shall enjoy the right of asylum." In general terms, the courts interpreted Article 16(2) broadly. However, the decision to accept or reject an application for asylum was preceded by a complex and lengthy administrative and judicial procedure. On average, it took the Federal Office for the Recognition of Refugees thirteen months to complete the initial examination and decide on the soundness of applications. Applicants denied political asylum were allowed a right of appeal for judicial review of the administrative decision. All told, the application and decision procedures could take an average of three-to-four years. Pending the outcome of the application and within that period, applicants were generally fed and housed by the Government. The cost to the state could be quite high, depending on the number of applicants. Since only a small percentage of the applicants were granted refugee status in the long run, the real difficulty did not concern those who were granted such status, but those who were permitted to stay pending consideration of their application.
All these factors, together with the escalating number of asylum seekers, especially from Eastern Europe, led to a dramatic increase in the number of applications throughout Western Europe, but particularly in Germany. Furthermore, on the domestic front a complex set of sociopolitical and economic factors necessitated reassessment of the country's asylum law. First, the massive cost of financing the reunification programs limited the Government's resources and made it harder to fund a large population of aliens, most of whom might not qualify for refugee status anyway. Second, Germany, like most other countries in the Organisation for Economic Co- operation and Development, was going through a recession. This situation compounded the economic stresses of reunification. Third, the large influx of asylum applicants in a period of economic difficulties tended to breed public resentment, which was manifested by violence against foreigners generally, and asylum seekers in particular.
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