NYLS Journal of International and Comparative Law Volume 14 Number 2 Volume 14, Numbers 2 & 3, 1993 Article 7 1993 TURMOIL IN UNIFIED GERMANY: ASYLUM-SEEKERS BECOME THE NATION'S SCAPEGOAT Patricia A. Mollica Follow this and additional works at: https://digitalcommons.nyls.edu/ journal_of_international_and_comparative_law Part of the Law Commons Recommended Citation Mollica, Patricia A. (1993) "TURMOIL IN UNIFIED GERMANY: ASYLUM-SEEKERS BECOME THE NATION'S SCAPEGOAT," NYLS Journal of International and Comparative Law: Vol. 14 : No. 2 , Article 7. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol14/iss2/ 7 This Notes and Comments is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. TURMOIL IN UNIFIED GERMANY: ASYLUM-SEEKERS BECOME THE NATION'S SCAPEGOAT I. INTRODUCTION On November 9, 1989, the Berlin Wall fell, symbolizing the end of a divided German state. The long dreamed-of unification finally came to its fruition. However, the euphoria experienced in 1989 proved ephemeral. In the past four years, Germans have faced the bitter ramifications of unity. The affluent, capitalist West was called on to assimilate and re-educate the repressed communist East. Since unification, Easterners have been plagued by unemployment and a lack of security and identity, while Westerners have sacrificed the many luxuries to which they have grown accustomed. A more sinister consequence of unity, however, is the emergence of a violent right-wing nationalist movement. Asylum- seekers and foreigners have become the target of brutal attacks by extremists who advocate a homogenous Germany. Amidst the social volatility in unified Germany, the government amended its asylum laws and adopted more stringent standards for entry. The purpose of this Note is to show that the asylum-seekers are not the cause of Germany's ailments, but are rather a scapegoat for them. Furthermore, the government's preoccupation with the "Asylum Debate," only diverts attention from the country's more pressing social problems. Secondly, Germany's historic reliance on ethnicity and homogeneity has provided fertile ground for the radical extremism that now plagues the country. In fact, the amended asylum laws may exacerbate the resurgence of the far-right. The government has effectively sent the message that it agrees with the extremists' demand, "Foreigners Out!"; it is only their means that differ. II. "GERMANY FOR GERMANS" A. Who Is a "German"? The definition of a "German" is enumerated in Article 116 of the Basic Law of the former Federal Republic of Germany ("FRG")': 1. The Basic Law, the constitution of the former FRG, was adopted by unified 402 N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 14 (1) Unless otherwise provided by the law, a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German stock (Volkszugehoerigkeit) or as the spouse or descendant of such person. (2) Former German citizens who, between 30 January 1933 and 8 May 1945, were deprived of their citizenship on political, racial or religious grounds, and their descendants, shall be regranted German citizenship on application. They shall be considered as not having been deprived of their German citizenship if they have established their domicile (Wohnsitz) in Germany after 8 May 1945 and have not expressed and have not expressed a contrary a contrary intention.2 To fully understand article 116, one must retrace German history. In 1937, the "German Reich" included all of the present-day Western and Eastern states, as well as territories later annexed by Poland and the former Soviet Union, under the Potsdam Protocol of 1945.1 In the following two years, nearly thirteen million ethnic Germans who were expelled from Poland, Czechoslovakia, Romania and Hungry resettled in Germany and became citizens of the Eastern and Western states.4 Therefore, the term "German" encompasses three categories: citizens of the former FRG, citizens of the former German Democratic Republic ("GDR"), and ethnic Germans.5 Prior to unification, this concept of nationality was an anomaly. Although Germany was physically divided, Germany via Chapter II, Articles 3 and 8 of the Unification Treaty. Treaty on the Establishment of German Unity, Aug. 31, 1990, 30 I.L.M. 463 (entered into force Sept. 29, 1991) [hereinafter Unity Treatyl. 2. BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY art. 116 (promulgated by the Parliamentary Council on 23 May 1949 as amended by The Unification Treaty of 31 Aug. 1990 and Federal Statute of 23 Sept. 1990) (translated and revised by the Federal Ministries of the Interior, Justice and Finance of the FRG (German Information Center)). 3. T.C. HARTLEY, EEC IMMIGRATION LAW 81 (1978). After World War II, England, the former Soviet Union, and the United States signed the Potsdam Protocol in 1945, which essentially redrew Germany's eastern border, placing German territory under Polish and Soviet administration. James H. Walsh, German Reunification and the Future of Asylum, MIGRATION WORLD MAG., Mar.-Apr. 1990, at 5. 4. Walsh, supra note 3, at 5. 5. HARTLEY, supra note 3, at 80-83. 1993] ASYLUM-SEEKERS IN UNIFIED GERMANY 403 the east and west shared a single German citizenship under the Basic Law of The Federal Republic of Germany. 6 The underlying premise of the nationality law is the principle of jus sanguinis,7 meaning those of German blood are Germans. This is best exemplified by article 116's inclusion of all ethnic Germans (or those of German stock) and their descendants. Philosophically, this inclusion comes from an old commitment to the notion of race-the commitment that found its most sinister expression in Hitler's Third Reich.' Unlike foreigners, ethnic Germans wishing to reside in the country need not speak German nor have any means of financial support.9 They must, however, prove their German ancestry. Ironically, a Polish refugee gained entry by presenting a counterfeit Nazi document detailing his father's employment as an officer in the Wehrmacht.'0 This satisfied the border official, since only those of German ancestry served in this section of Hitler's Third Reich." One German politician criticized this reliance on ethnicity by stating that some ethnic Germans' closest link to the nation was that they "perhaps once owned a German shepard dog."' 2 B. Unified Germany: A Home for Germans In recent years, the world has watched the disintegration of the Soviet Bloc, revolutions in Poland, Hungry, Czechoslovakia, and Romania, the fall of the Berlin Wall, and the emergence of a new unified German state. The repercussions of these events on the population of Germany are twofold. The opening of borders throughout western and eastern Europe resulted in the migration of over 600,000 ethnic Germans"' to Germany 6. William R. Brubaker, Frontier Theses: Exit Voice & Loyalty in East Germany, MIGRATION WORLD MAG., Mar.-Apr. 1990, at 13 [hereinafter FrontierTheses]. See also TomAs HAMMAR, DEMOCRACY AND THE NATION STATE 177 (1990). 7. Gerald L. Neuman, Immigration and JudicialReview in the Federal Republic of Germany, 23 N.Y.U. J.INT'L L. & POL. 35, 44-45 (1990). See also HAMMAR, supra note 6, at 74. 8. AMITY SHLAES, GERMANY: THE EMPIRE WITHIN 20 (1991). 9. Id. at 26. 10. Id. at 24-25. 11. Id. 12. Id. at 34. 13. Over 20,000 Germans migrated in 1989. More Asylum Seekers, Resettlers; Schauble Callsfor New Asylum Policy, WK. IN GERMANY, Jan. 11, 1991, available in LEXIS, News Library, AFP File. There were 397,073 Germans who migrated in 1990. Fewer Ethnic Germans Come to Germany & Fewer Easterners in the West, WK. IN 404 N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 14 and the movement of over 700,000 eastern Germans into the former FRG. 4 The constitutional right of all Germans to enter and reside as citizens in Germany emanates from Article 11(1)15 and Article 116 of the Basic Law. As previously noted, under article 116, those residing in the former FRG and GDR have always shared a single German citizenship. 16 Ethnic Germans, under article 116(2), are regranted citizenship upon application. 7 However, the right of entry derives directly from article 11(1),s which states: "All Germans shall enjoy the freedom of movement throughout the federal territory."19 It is important to note that when the Basic Law was written in 1949, it was intended only as a temporary measure until unification was achieved.2" Fifty-one years later, on October 3, 1990,21 the framers' desire for reunification materialized. This glorified Day of German Unity symbolized a break with the past and a genuine hope for the future. However, "[t]he euphoria of Germany's 1990 reunification may seem like a deceptive footnote in history . .. 2 The affluent West continues to shoulder the burden of revitalizing the impoverished East. The government transferred "$130 billion from west to east in 1993, up from GERMANY Oct. 30, 1992, available in LEXIS, News Library, AFP File [hereinafter Fewer Germans]. There were 221,995 Germans who migrated in 1991. Id. And 173,746 Germans migrated in the first 10 months of 1992. Tom Heneghan, Kohl May Force Through Tough New Laws on Asylum, Reuter Libr. Rep., Nov. 2, 1992, available in LEXIS, News Library, LBYRPT File. 14. Over 150,000 eastern Germans migrated into the former FRG in 1989. Philip L. Martin & Mark J. Miller, Guests or Immigrants?, MIGRATION WORLD MAG., Mar.- Apr., 1990, at 11. About 333,290 Eastern Germans migrated in 1990 and about 243,000 migrated in 1991.