Published: 03 July 2017 Author: Stefan Talmon
For many years, foreign government officials and politicians were allowed to address the electorate of their own State at events in Germany. For example, in recent years Turkish President Recep Tayyip Erdogan and other Turkish government officials on several occasions addressed compatriots living in Germany, home to an estimated 1.4 million eligible Turkish voters and a 3 million-strong ethnic Turkish community.
Visits by foreign government officials and politicians were usually notified in advance by the foreign country’s embassy in Berlin but the Federal Government took the view that such visits did not require prior approval. On 17 February 2017, the spokesperson for the Federal Foreign Office explained: “There is no request for approval. But that is also not required by law.” According to the Foreign Office, no decisions were taken at the federal government level. Campaign rallies by foreign politicians and government officials were seen as a matter purely of the German Assembly Act and administrative law more generally which were administered by the federal states and local authorities. That Germany, like any other sovereign State, could decide on who enters or leaves the country, was seen in this context more as a theoretical possibility. In response to a parliamentary question, the Federal Government replied that since the year 2000 (the date referred to in the question) it had never denied entry to a foreign politician or government official who wanted to speak at a campaign rally or other political event.
On 16 April 2017, Turkey held a controversial referendum on constitutional changes which, if successful, would replace Turkey’s parliamentary system with an executive presidency. At the request of the Turkish Government, the Federal Government approved for the referendum also to be conducted in Germany to allow Turkish citizens resident in Germany to vote. In February 2017, the Turkish embassy in Berlin notified the Federal Foreign Office that between 17 February and 27 March 2017, the Turkish Prime Minister, his deputy and 11 Ministers planned to visit Germany to take part in campaign rallies in favour of constitutional change.
A severe deterioration of relations between Turkey and Germany, the blocking of campaign appearances by Turkish officials in other European countries, and the upcoming parliamentary elections in Germany led to widespread calls to ban campaign rallies of Turkish Government officials in Germany ahead of Turkey’s constitutional referendum. The Federal Government initially tried to evade such calls by arguing that it did not have a role in the decision-making with regard these campaign rallies. On 13 March 2017, the government spokesperson declared:
“It remains the attitude of the Federal Government that, especially when we criticize others for restricting freedom of expression and press freedoms, we uphold these values in our own country. That means that we have not issued a general ban on the appearance of Turkish politicians which take place within the framework of our laws and our Assembly Act and provided that no internal Turkish conflicts may be stoked here and that such appearances are notified in a timely and transparent manner.”
However, pressure to ban Turkish Government officials from speaking in Germany mounted day by day. An opinion poll showed that some 83 percent of Germans thought that Turkish politicians should not be allowed to campaign in Germany for the referendum, while only 15 percent thought such appearances were acceptable. There were also widespread demands that Germany should take a tougher stance against Turkey.
Only two days later, on 15 March 2017, Peter Altmaier, Head of the Federal Chancellery and Federal Minister for Special Tasks, gave an interview to a major newspaper group trying to release some pressure by indicating a shift in the Government’s position. He said:
“Like any other country, Germany is entitled under international law to prevent the entry of foreign government officials. This happens worldwide only in exceptional circumstances, and, in my recollection, in Germany it has not happened at all. […] The fact that the Federal Government has not yet exhausted its options under international law is no free pass for the future. We will take a close look at what is responsible and what is not. An entry ban would be a last resort. We reserve the right to do that.”
The problem of campaign rallies by Turkish Government officials in Germany was shelved, for the time being, when the organizers of such rallies said on 21 March 2017 that no more rallies would be held in Germany before the referendum.
The problem, however, was revived in June 2017 when an official request by Turkey was received that President Erdogan be allowed to address members of the Turkish community in Germany during his visit for the G20 summit in Hamburg. In the meantime, Turkish-German relations had plummeted to a new low, with Germany having been forced to withdraw its troops from Incirlik air base in southern Turkey because of Turkish government restrictions on German lawmakers seeking to visit troops there. In addition, Turkish-German relations had become a major election issue in Germany’s federal parliamentary elections scheduled for 24 September. This led Federal Foreign Minister Sigmar Gabriel to make the following announcement during a visit to Krasnodar, Russia, on 29 June 2017:
“We have received an official request from Turkey that President Erdogan be permitted to address his compatriots in Germany on the sidelines of the G20 Summit.
I had already communicated to my Turkish colleague weeks ago that we do not believe this is a good idea. As we will be hosting the G20 Summit, we will not have sufficient police officers available to provide the necessary security. I also openly stated that such a public appearance would neither be appropriate nor politically apposite, given the current tensions that exist with Turkey.
I therefore very much understand the comments that have been made by Martin Schulz [the challenger of Chancellor Angela Merkel in the elections and leader of the Foreign Minister’s Social Democratic Party]. We have a common position on this within the Federal Government. We will even go a step further. I have proposed to the Federal Chancellor that we reassess our policy. In the past, we have agreed to such public appearances, also during election campaigns. I think we should now tell all countries that are not EU members – not only Turkey – that we will not permit campaign appearances here that are intended to import another country’s internal conflicts into Germany.
It is the Federal Foreign Office’s view that this should no longer be permitted. I assume the Federal Chancellor will also think this is the right approach.
We consider the Turks who live in Germany to be fellow members of our society. All those who live in our midst, regardless of whether they are German citizens or not, are part of our country. We do not want these people to be subjected to demagoguery in connection with conflicts in their homeland.
Of course, President Erdogan is an important guest at the G20 Summit, and we will welcome him with full honours. I do not, however, believe that anything beyond that would be appropriate at this point in time.”
The following morning, the Federal Foreign Office delivered the following circular note to all embassies accredited to Germany:
“Appearances by foreign politicians at events in Germany that are aimed at the electorate of the foreign country require the approval of the German Government.
Such approval must be requested via a Note Verbale to the Federal Foreign Office at least ten days before the event. Approval will be granted in the light of foreign relations; it thus does not replace the necessary permits under the law of public order.
Appearances must comply with the principles of the Basic Law and the German legal system, particularly as regards the right of assembly. They may not pose a threat to public security and order.
As a general rule, approval is not granted if the speech is to be given in a period of less than three months before the date of the election or referendum; this rule does not apply to European Union Member States.”
This policy change applied with immediate effect. During the government press conference on the same day, the spokesperson for the Federal Foreign Ministry further elaborated on the new policy, saying:
“All this [the new policy] is nothing but an emanation of the State sovereignty of the Federal Republic of Germany. It is our decision, the decision of the sovereign State Federal Republic of Germany, who holds political rallies on our territory and who does not.”
Asked whether the new policy also applied to political rallies on the premises of the foreign State’s embassy or consulates in Germany, the Foreign Office spokesperson replied:
“German territory expressly includes the land and premises of foreign diplomatic and consular missions. This means: German law also applies there. So, if the Federal Government decides that a particular political event must not take place, then this also applies to the land and premises of a foreign diplomatic and consular mission.
However, there are not only privileges and immunities for representatives, that is, human beings, diplomats of other States and consular officials, but also for the premises in which diplomatic and consular business is conducted in Germany. This, too, is governed by the provisions of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations which provide for the principle of the inviolability of the premises of foreign States. Of course we respect that.”
But, this view did not remain unchallenged. A spokesperson for the Turkish embassy in Berlin declared that the Turkish President did not need the approval of the Federal Government to address Turkish citizens on the premises of a Turkish consulate. On 3 July 2017, the Foreign Office spokesperson responded to reports that President Erdogan may appear on the premises of the Turkish consulate-general in Hamburg, either in person or via a video feed, saying that any appearance without prior approval “would constitute a violation of the will expressed by the Federal Government, which in turn is based on our German sovereignty.” He added, tellingly, that the Federal Government had “options to influence what was happening on the inviolable premises of diplomatic or consular representatives.”
The new German policy is in accordance with international law and in line with the practice of the large majority of States, which either do not allow foreign government officials and politicians to speak in their territory at political rallies aimed at the electorate of the foreign State or make such appearances subject to prior approval. For example, Turkey did not allow Bulgarian officials and politicians to speak to Bulgarian citizens in Turkey in the run up to the Bulgarian parliamentary elections in March 2017.
The Federal Government’s position is also shared by the German courts. In a case concerning the appearance of the Turkish Prime Minister Yildirim at a rally in Germany on 18 February 2017, the Federal Constitutional Court held in a decision on provisional measures, rendered on 8 March 2017, that:
“Heads of State and members of foreign governments are not entitled, either under constitutional law or under general international law within the meaning of Article 25 of the Constitution, to enter the territory of the Federal Republic and to exercise official functions in Germany. This requires the – explicit or implied – consent of the Federal Government.”
In an earlier decision the Higher Administrative Court at Münster addressed the question of whether the organizer of a political rally in Germany had the right to present the Turkish President or members of the Turkish Government via live video feed. The Court ruled that such a right did not exist, holding that the question of foreign heads of State or members of government making political statements in Germany concerned the foreign relations of the Federal Republic of Germany with other States. The Court continued:
“It is therefore up to the Federal Government to decide whether and under what conditions foreign heads of State or members of government may engage in political activities by making official statements in the public arena on the territory of the Federal Republic of Germany.”
But it is not just the German courts that have held that, under international law, States have the right to control the access of foreign Heads of State to their territory. In Case C-364/10, the Grand Chamber of the European Court of Justice held that the Slovak Republic was entitled under international law to deny access to its territory to the President of Hungary.
Category: Territorial sovereignty
