The Genesis of Germany’s Asylum Law: A Historiographical Debate
Introduction
Germany’s asylum law has become a contentious topic in recent years, with historians joining the debate. Heinrich August Winkler has argued that the framers of the German Basic Law (Grundgesetz) never intended to establish an individual right to asylum, and therefore it should be abolished. This interpretation has been challenged by other historians and constitutional lawyers.
Michael Mayer’s Alternative Perspective
Michael Mayer, a leading historian specializing in the history of asylum law in Germany, offers a contrasting perspective in his 2024 article in Die ZEIT. He contends that the asylum provision in Article 16a(1) of the Basic Law was not primarily motivated by concerns about foreign persecution but rather by the challenges of the post-World War II era.
The Primacy of Domestic Concerns
Mayer argues that the Parliamentary Council, the body responsible for drafting the Basic Law, was primarily concerned with protecting persecuted Germans from the Soviet-occupied zone (SBZ). The mass flight of refugees from the SBZ, coupled with the British occupation authorities’ order to accept all refugees, had created a significant burden on the Western zones, particularly Niedersachsen.
The Role of Asylum Procedures
To address this situation, Niedersachsen issued a decree in May 1947 requiring refugees to undergo an asylum procedure. This procedure aimed to provide protection for those facing political persecution while also limiting immigration. The other British-occupied zones soon adopted similar procedures, with the result that two-thirds of refugees were denied asylum.
Contrasting Policies in the US Zone
In contrast, the US authorities in the US-occupied zone immediately deported illegal immigrants from the SBZ, regardless of their political status. However, the German states in the US zone pressed for exceptions for political refugees. As a result, they implemented informal recognition procedures to protect refugees on a case-by-case basis.
Unification of Asylum Procedures
Despite their different motivations, the British and US zones agreed on a unified asylum procedure in the summer of 1947. This procedure allowed the British zones to deport more refugees, while the US zone could protect a small number from deportation. The French zone later joined this agreement.
The Significance of Mayer’s Interpretation
Mayer’s interpretation challenges the prevailing view that the asylum provision in the Basic Law was a unique response to the Nazi era. Instead, he argues that it was primarily driven by the practical concerns of the post-war period, with a focus on protecting German refugees from the SBZ.
Conclusion
Mayer’s historical analysis provides a valuable alternative perspective on the origins of Germany’s asylum law. It sheds light on the complex motivations and challenges that shaped the development of this important legal provision. By understanding the historical context of the Basic Law, we can better engage with the current debates surrounding asylum policy in Germany.
