Logo
Share

Does the Law have to follow Politics?

Summary

Donald Trump has long abandoned any notion of the primacy of law, ruling by the motto: “He who saves his Country does not violate any Law“[1]. Anyone who believes Europe is a stronghold of the rule of law and such a thing could not happen here is mistaken. Herbert Kickl has said it outright, and we are increasingly hearing similar things from German politicians – and lately even from heads of federal authorities[2] – if the law stands in the way of politics, then it must be changed or abolished. Law should follow politics – not the other way around. Some experts even argue for “interpreting human rights less strictly,” pointing out that the European Convention on Human Rights could, after all, be amended.[3] But what should we make of such claims? Is it even legally possible to “respect human rights less” or abolish asylum law? What could be changed – and how? And what happens when governments act outside or in defiance of the law? With this briefing, we want to provide background and arguments for the current debate. In our communication recommendations at the end, we summarize the key points clearly and concisely.

What Are the Key Legal Questions?

1. Ignoring the law means ignoring the rule of law

Political actions that violate current law are not only unlawful – they are also violations of the principle of the rule of law itself (Rechtsstaatsprinzip). In public discourse, the “rule of law” (“Rechtsstaat”) is often portrayed as a kind of doorman who imposes strict order. The German Basic Law (Grundgesetz) understands it differently. It distinguishes between a formal and a substantive concept of the rule of law: the substantive concept enriches the formal one – simply put – by adding a dimension of justice.[4] In a state governed by the rule of law, the law rules. This means, on one hand, the state must enforce the law, and on the other – and most importantly – the state itself, meaning the executive, is bound by “law and justice,” thereby limiting the state’s monopoly on force[5].  This is clearly laid out in Article 20(3) of the Basic Law and Article 2 of the Treaty on European Union. State authorities must always adhere to existing law. If they do not, and instead violate it, they are also violating the rule of law itself.[6]We will explain how the law applies in a state of emergency or crisis in a separate briefing coming soon.

2. How can international law, EU law, and human rights be changed?

In our first briefing, we showed that returns at the border violate both human rights and EU law.[7] So when people ask whether the law could simply be changed, they are actually questioning the very foundation of the European community of values – the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR). The prohibition of inhuman and degrading treatment – which returns at the border violate according to the European Court of Human Rights (ECtHR)[8] – is absolute. It is one of the “most fundamental values of democratic societies,” and no derogation is allowed.[9] For example, when a German police officer used torture to try to locate a kidnapped child, the ECtHR ruled this “rescue torture” to be a violation of human rights. [10] No exceptions permitted.To “change the law,” one would need to amend the European Convention on Human Rights, the 1951 Geneva Refugee Convention, perhaps even the Universal Declaration of Human Rights, and certainly the EU Charter of Fundamental Rights, the EU Treaties, secondary EU law (such as regulations and directives), and ultimately also the German Basic Law. So, we return to the central question: Is it possible? Can the rule of law, human rights, and asylum law be abolished?Here’s how hard it would be:The Charter of Fundamental Rights of the EU is primary EU law[11], and can only be changed by means of a complex procedure.[12] Changing it requires:A convention called by the European Council, where representatives of the Member States, the European Parliament, national parliaments, and the Commission debate amendments;A governmental conference among Member States to negotiate the results;Unanimous ratification by all Member States in accordance with their national constitutions.„Secondary“ EU law[13] (e.g., the Dublin III Regulation, which returns at the border violate) can be changed more easily:[14] The European Commission – and only the Commission – has the right to propose changes. These must be approved by a majority in both the European Parliament and the Council of the EU (i.e., the heads of state and government), through a complex procedure.[15]Violating EU law also violates the German Basic Law, as this stipulates the precedence of EU law in Article 23 of the Basic Law. This would have to be amended, which is possible in principle. According to Article 79 of the Basic Law, this would require the Bundesrat, Bundestag or Federal Government to submit a motion, which would require a 2/3 majority in both the Bundestag and Bundesrat. However, a refusal to recognize the primacy of EU law would also mean a de facto withdrawal from the EU.[16]The European Convention on Human Rights can only be changed via additional protocols to which all 46 Member States of the Council of Europe must agree. To escape the prohibition of torture and inhuman treatment, Germany would have to withdraw from the ECHR entirely.The 1951 Geneva Refugee Convention can be amended in a complicated procedure. According to Article 45, a State Party can propose an amendment, which must be submitted to the Secretary-General of the United Nations, who forwards it to all States Parties. If at least one third of the States Parties agree, an international conference is convened to negotiate the amendment. The amendment enters into force only for those states that ratify it. The CSF can also be denounced (Article 44), which enters into force after one year. To date, not a single state in the world has withdrawn from the 1951 Geneva Refugee Convention.The prohibition of torture – which also gives rise to the principle of non-refoulement  – is also customary international law and peremptory international law (ius cogens) – which is mandatory and cannot be revoked. This was also taken into consideration by the British Supreme Court, for example, when it had to rule on the so-called Rwanda deal[17], but ultimately left it open because Great Britain, as a member of the Council of Europe, is also a member state of the European Convention on Human Rights.

3. Ignoring international law dismantles the “Never Again” of 1945

The UN system, the core human rights treaties, and refugee law were created in response to World War II. After the human, political, and moral catastrophe before 1945, the international community agreed on minimum standards for how people must be treated – a collective “Never Again.”       This post-war consensus – still binding today – includes what Hannah Arendt called the “right to have rights.” [18] The right to have human rights cannot be taken away from anyone.What does this mean for refugees? Refugees have lost the protection of their home country. They no longer enjoy the privilege of an effectively protective nationality. This makes them particularly dependent on other states respecting and safeguarding their rights – based solely on their humanity.             Anyone who calls for “interpreting human rights less strictly,” or for ignoring or abolishing refugee law, breaks with the moral, political, and human foundation of the post-war order. This undermines the promise of 1945. That is something law professors, federal politicians, and heads of German government agencies should know – especially in Germany.

[1] Compare Kim Lane Scheppele, Trump’s Counter-Constitution. “He who saves his Country does not violate any Law”, Verfassungsblog vom 21. February 2025, available here.

[2] The President of the Federal Office for Migration and Refugees, Hans-Eckhardt Sommer, has spoken out in favor of abolishing the individual right to asylum, and the Geneva Refugee Convention could also be amended, Tagesschau from April 1, 2025, available here: https://bitl.to/4MT5.

[3] Katrin Elger and Dietmar Hipp, " Wir müssen die Menschenrechte weniger streng handhaben ", interview with Daniel Thym, Der Spiegel, March 16, 2025, available here: https://bitl.to/4MW4 (€).

[4] This has been clearly presented by Kyrill-Alexander Schwarz, Rechtsstaat und ziviler Ungehorsam, Neue Juristische Wochenschrift 2023, p. 275 et seq.

[5] Maximilian Pichl, Gefährliche Rede vom "Rechts­staat", Legal Tribute Online, 2019, available here: https://bitl.to/41y1.

[6] Further information on the rule of law problem in European asylum policy: Robert Nestler, Tagesspiegel 29 June 2023, available here: https://bitl.to/3wgN.

[7] Equal Rights Beyond Borders, Why refoulement at the border is illegal. Borderlines: Briefings on Migration and Human Rights, February 21, 2025, available here: https://bitl.to/42ii.

[8] European Court of Human Rights (ECtHR), judgment of October 15, 2024, case no. 13337/19 - H.T. v. Greece and Germany.

[9] European Court of Human Rights (ECtHR), Guide on Article 3 of the European Convention on Human Rights, August 31, 2024, p. 6, available here: https://bitl.to/3zng.

[10] European Court of Human Rights (ECtHR), judgment of June 01, 2010, case no. 22978/05 - Gäffgen v. Germany.

[11] Overview: Federal Agency for Civic Education, The Legal Dictionary, Primary Law, available here: https://bitl.to/41yA.

[12] Article 6 of the Treaty on the Functioning of the European Union.

[13] Overview: Bundeszentrale für Politische Bildung, Das Rechtslexikon, Sekundärrecht, available here: https://bitl.to/4MTy.

[14] Article 294 Treaty on the Functioning of the European Union.

[15] Overview: European Council, The ordinary legislative procedure, available here: https://bitl.to/41Or.

[16] Further reading: Stefan Marschall, "Kann das Grundgesetz geändert werden?", Federal Agency for Civic Education, available here: https://bitl.to/41Ow.

[17] Supreme Court of the United Kingdom, judgment of November 15, 2023, case number UKSC/2023/0093 - R (on the application of AAA and others), paragraph 25, available here: https://bitl.to/4MTg.

[18] Overview: Lena Anlauf, Hannah Arendt and the right to have rights, 2007, available here: https://bitl.to/4MU2.

In Brief:   

  1. Ignoring the law means ignoring the rule of law – and thus the foundation of the Basic Law and every democracy.
  2. Disregarding human rights or abolishing asylum law breaks with the collective “Never Again” of 1945, which underpins both international law and the European Union.
  3. To make returns at the border legal, one would need to amend both primary and secondary EU law, the ECHR, the Geneva Convention, and the German Constitution. All of this is virtually impossible in practice.
  4. Even if Germany withdrew from the EU, the ECHR, and the Refugee Convention:The principle of non-refoulement remains binding under customary international law. It applies even without any international treaties.

What Needs to Be Done?

  • If someone claims that “law must follow politics,” ask them what they mean. Do they want to ignore the law, or change it? Do they understand the scope of such a demand?Should the state be allowed to do anything it wants – unchecked?What happens when someone with different views comes to power?If the answer is “the law should be changed,” explain what that really entails:Withdrawal from the EU, withdrawal from the ECHR (something only Russia has done), abandonment of international law. Also make clear that this would affect their own rights –Because if human rights no longer apply, then no one has rights.

Further resources

  • Max Pichl, Law statt Order. Der Kampf um den Rechtsstaat
  • Mediendienst Integration, “Kann Deutschland das individuelle Asylrecht aussetzen” Interview with Nora Markard, April 7, 2025 (republication). Available here:
Share
Related Resources
  • Download PDF
    Does the Law have to follow Politics?