Debate Over Asylum Rights: Historical Perspectives and Current Implications

The ongoing discussion regarding asylum rights in Germany has resurfaced, particularly in light of recent political debates. A notable reference was made by Friedrich Merz, the candidate from the CDU/CSU, who cited historian Heinrich-August Winkler during a televised debate. Winkler, a member of the SPD, has suggested that the founding fathers of the German constitution did not intend to establish an individual right to asylum. However, this assertion raises questions about its relevance in today's legal and political landscape.

Merz's statements indicate a desire to reform or potentially abolish the individual asylum right in Germany. He claims that such reforms would facilitate the rejection of migrants at Germany's borders, even if they declare themselves as asylum seekers. Winkler's commentary in a recent article for a prominent magazine underscores this viewpoint, asserting that many individuals entering Germany illegally use the asylum system to secure a temporary, and often indefinite, residency status without genuine claims to political asylum.

Winkler elaborates that the number of individuals incorrectly claiming asylum far exceeds those with legitimate claims, thus transforming the asylum framework into a de facto immigration law. He argues for a shift from a subjective to an institutional approach to asylum, which aligns with the CDU and CSU's long-standing agenda to manage irregular migration.

While Winkler is a respected historian, his insights into the current migration discourse may lack the necessary expertise. His argument hinges on the premise that the Parliamentary Council, during the formation of the Basic Law, did not envision a subjective individual right to asylum. Rather, he suggests that the intention was to establish a state-guaranteed institutional right. This perspective posits that the historical context of asylum rights is being misrepresented in contemporary discussions, potentially justifying the rejection of all asylum seekers at the borders, as suggested by Merz.

It is crucial to note that the interpretation of the Basic Law is the purview of the Federal Constitutional Court and not solely the domain of historians. The Court has consistently recognized the right to asylum as a subjective fundamental right. Winkler's characterization of the Court's rulings as 'idiosyncratic and contestable' is noteworthy, particularly given his non-legal background.

Moreover, historical interpretation is merely one of several methods applied in legal interpretation. As time progresses, historical perspectives lose their weight in favor of more contemporary interpretations that align with current societal values and legal standards. The Constitutional Court's decisions have evolved based on these principles, which may diverge from Winkler's historical analysis.

The debate surrounding the German right to asylum has persisted for decades and reflects broader societal and political tensions. Notably, significant changes were made to the asylum laws in 1993, which many argue diluted the original intent of the right to asylum. The modifications made at that time, primarily driven by the CDU/CSU, have rendered the asylum right ineffective for most refugees arriving from safe third countries.

Despite Winkler's assertions, it remains a fact that the current political discourse still references the Basic Law, including its asylum provisions. This includes arguments from high-profile politicians like Chancellor Olaf Scholz, who still cite the asylum right in their political rhetoric. However, Merz can counter these arguments effectively by referring to Article 16a, paragraph 2, of the Basic Law, which highlights the practical limitations of the asylum right as it stands today.

Ultimately, those who continue to advocate for the right to asylum in its traditional sense may inadvertently bolster the arguments of right-wing factions, such as the AfD. This is particularly ironic given that the SPD played a crucial role in the 1993 reforms that effectively curtailed the asylum rights in Germany.

The prospect of rejecting all asylum seekers at Germany's borders does not violate the Basic Law but presents challenges under EU law, which has established its own asylum system. The individual right to asylum is now rooted in EU legislation, which is implemented in German law. Looking forward, new regulations are anticipated from the EU that will further shape the legal framework governing asylum rights, making historical arguments increasingly irrelevant in contemporary discussions.