Once Populist, Now Mainstream?

The heydays of international law are over – that much is suggested by politicians and political observers in Germany. Those who still argue in favour of an international order based on international law seem unprepared for a world of autocrats and transactional deals. Allegedly, they fail to realize the need to protect and prioritize national interests. International legal practices are even perceived as immoral when authoritarian states rely on international law to oppose foreign policy decisions of democratic states, as exemplified by recent proceedings before international courts on the war in Gaza. For a long time, international law was almost idealized in German debates, but now something seems to be shifting.

This development similarly affects European law, whose autonomy and validity are also being called into question. International law and European law are perceived as inconvenient foreign interferences with national decision-making. Sooner or later, this development is bound to weaken a middle power like Germany. Even more importantly, it will most likely also affect the rule of law and the protection of fundamental rights at the national level.

International law as an obstacle

US President Donald Trump’s statements on Greenland, Panama and Canada as the 51st federal state have provoked a familiar echo of moral indignation in Germany. However, there has also been some appeasing support. Isn’t Trump somehow right after all? Shouldn’t we be pleased that the United States are interested in the security of the Euro-Atlantic area? And are references to international law, to which no one adheres when in trouble anyway, merely empty rhetoric that we can no longer afford in these turbulent times? At present, voices are becoming louder calling on German foreign policy to accommodate the US President in the light of German foreign policy weaknesses.

Far into the political centre, creeping resistance is emerging against Germany’s constitutional commitment to open statehood, which is rooted in the German constitution and aims at European and international integration. In the context of migration, many voices seem to perceive international and European legal rules merely as obstacles that can and must be overcome with political will. This is evident in repeated calls by Jens Spahn – a member of the CDU presidency – for Germany to withdraw from the European Convention on Human Rights (ECHR). It is also apparent in debates about the extent to which European law should influence decisions on border admissions or refusals. Some politicians call for blatantly disregarding the rules of EU law on the treatment of protection status applications. For instance, Friedrich Merz demanded that Germany should assert its ‘right to primacy of national law’ over EU law. Whether this claim refers to emergency clauses in European law or aims to fundamentally question the foundational doctrine of EU law primacy remains unclear in the heated discussion.

The constitutional order of the Basic Law would no longer be the same

Obviously, states bind themselves voluntarily to international treaties, which means that they can generally withdraw from their commitments. This also applies to the termination of EU membership. However, it is reckless how central political players are currently tampering with the foundations of German statehood. These foundations were carefully established in response to National Socialism. Under international law, it is generally permissible for a party to the ECHR to withdraw from it; the ECHR expressly provides for such a possibility. Nevertheless, the Federal Constitutional Court interprets the fundamental rights of the Basic Law in light of the guarantees of the ECHR. This derives from Article 1(2) of the Basic Law, which immediately follows the invocation of human dignity and recognises inviolable and inalienable fundamental and human rights. National constitutional law is deeply intertwined with EU and international legal standards. If the most important instrument for the protection of human rights in Europe were to be abandoned, the constitutional order of the Basic Law would no longer be the same.

Even if one assumes that withdrawing from the ECHR is predominantly a policy decision, the question arises as to what signal is already being sent by the discussions about such an approach – one not even propagated by right-wing populist parties like the French Rassemblement National. How great must the anger be about migration law if German politicians seek to convince the public that it is in their interest to deprive ‘not just foreigners’, but also German citizens of the opportunity to defend themselves against human rights violations by German authorities before a European body?

But perhaps European human rights protection is no longer worth it? Who cares about the rights of convicted offenders, homosexual soldiers, fathers who are denied access to their children or people who are placed in psychiatric clinics against their will when it comes to Germany’s security and ability to act in a changing world order? Protecting the individual from precisely this indifference is the aim of the Basic Law.

The playbook of authoritarian populism

In the same vein, the statements on ‘Germany’s right to prioritise national law over European law are playing with fire. While it is true that the Common European Asylum System is in urgent need of reform and that legislators should have considerable leeway in decisions on immigration and its management, invoking a supposed right to the primacy of national law turns the relationship between EU law and national law on its head. This rhetoric stems from the playbook of right-wing populist parties like in Poland and Hungary, aiming to place their political goals above the law.

Since the early 1960s, the primacy of Union law has been a cornerstone of the single market, which has brought prosperity, freedom and security to Germany. The Federal Constitutional Court also accepts this primacy. Through the constitutional provision on European integration in Article 23(1) of the Basic Law, the primacy of EU law enjoys German constitutional status. The exceptions developed by the Federal Constitutional Court, in particular for the protection of German constitutional identity, are not relevant in the cases currently discussed and can thus not justify the reorganisation of the relationship between European law and national law.

Giving priority to supposed national self-interests over international legal obligations would not only be in contradiction to the rule of law. Dealing with the law in this way ultimately also weakens Germany’s position as a middle power in a changing global order. For the time being, it is uncertain which order will replace the US-led liberal world order: a bipolar order in which China and the United States compete for hegemony, a multipolar order in which states in regional spheres of influence submit to the respective hegemon, or even a return to a kind of international anarchy where law no longer has any significance. This perspective is not promising for middle powers in Europe and the Global South, as international law, with its norms, institutions and processes, gives these states a voice vis-à-vis hegemonic powers. In such times of uncertainty, Germany’s continued credible commitment to international law would offer states of the Global South an alternative to aligning with authoritarian states such as China.

Legal coherence is essential for international stability

Currently, Europe exhibits a near-apathy towards the changing global order. However, it does not help to provoke or propagate breaches of the law in order to demonstrate supposed decisiveness. The gap created by Europe’s apathy and introspection is being filled by other players, who claim the legitimising effect of international law for themselves while presenting themselves as defenders of the common good. Europe, meanwhile, risks losing more and more legitimacy globally. Rather than turning its back on international law, China is investing in its law-making and law-shaping power and attempting to introduce new concepts into international law aligning with its ideological ideas. For German foreign policy to remain reliable and contribute to shaping the world, it must demonstrate trustworthiness in legally relevant behaviour to promote the stabilising effects of law.

Here, the recent statements regarding a hypothetical visit of Israeli Prime Minister Netanyahu to Germany are cause for concern. The execution of an arrest warrant of the International Criminal Court (ICC) is being openly questioned. Representatives of the government and the opposition alike consider it difficult to imagine that Netanyahu would no longer be able to travel to EU countries because of the arrest warrant. They object that the decision on the arrest warrants equates a head of government from a democratic constitutional state with Hamas terrorists, even though the simultaneous issuing of arrest warrants in the same case does not contain any judgment on the seriousness of the respective accusation.

If public officials indicate that they are not willing to comply with an arrest warrant issued by the ICC, they weaken expectations of compliance with international law and thus the uniform application of the law. Non-compliance due to national policy preferences undermines international law, as it effectively entitles other states to assert their own particular policy preferences through non-compliance. Democratic constitutional states can also violate international law and must be held accountable for their actions. The criminal liability of a person arises from their actions, not from political contextualisation.

It is therefore particularly troubling that France has also expressed unwillingness to comply with the ICC’s requests. Even if such statements are merely political rhetoric – in Germany, ultimately, the courts will decide – they send a devastating signal in international relations. The uniform of application of the law is compromised when the same states that criticised South Africa, Jordan and Mongolia for not extraditing the Sudanese and Russian presidents to the court now threaten to behave in the same way.

The Russian war of aggression in Ukraine underscores how central expectations of legal coherence are for the stability of the international order. The Ukrainian struggle is rightly seen as a defence of the international legal order against a serious violation of the prohibition of the use of force. Achieving a just and sustainable peace settlement for Ukraine requires rejecting threats such as Trump’s statements, which call into question the ban on the use of force. These threats, as well as any half-hearted reactions to them are steps towards lawless anarchy.

From undermining international law to dismantling constitutional law

In Germany, some may be tempted to trust the Federal Constitutional Court and dismiss concerns about the continuing role and relevance of international law and the application of European law. This perspective might be bolstered by perceptions that international law is often disregarded anyway or that Union law is partially dysfunctional. Of course, politics should play an active role in shaping the law. Treaties can be terminated if they no longer fulfil their functions. However, this does not constitute a licence to brush aside courts and their jurisprudence as soon as they constrain political action or complicate the attainment of political goals.

What is particularly concerning about the current rhetoric, especially at the levels of international and European law, is the ambiguity surrounding its underlying intent. It remains unclear whether the core statement that law is and must be changeable is based on a genuine desire to enter into legislative processes, or whether the breach of law is simply accepted in order to emphasise the attainability of a political goal. If the latter were the case, law would be reduced to an instrumental tool in line with the populist playbook – a means for occasionally achieving political goals but one that may be arbitrarily ignored.

Such arbitrariness in the application of law would ultimately endanger the safety of every human being. Those who ignore international legal obligations will not shy away from dismantling domestic constitutional law. Those who do not respect international Law and European law will sooner or later no longer abide by the constitution.

This text was first published in German in the Frankfurter Allgemeine Zeitung (6 February 2025, p. 11) under the title “Die allerneueste deutsche Angst ist Bindungsangst. Auch eine Zeitenwende: Bei deutschen Politikern wird es Mode, Völkerrecht und Europarecht schlechtzureden“. Translation from the German original on the basis of DeepL with amendments by the authors.