National Coalition, KoG
c/o Frau Schmidt-Behlau/Herr Sven Borsche
Arbeitsgemeinschaft für Jugendhilfe
Haager Weg 44
National Coalition of the UN in Germany, and the suitable measures to be organized by it with respect to the incompatibilities between the human rights principles and the new, German Parenting Legislation.
Dear ladies and gentlemen of the KoG and its member organizations,
The meeting o the Coordination Group on 05/22/1997, gave notice that the ongoing reform of the Parenting Legislation will be "observed" and that "possibly, suitable actions" will be organized by the KoG. I am uncertain as to whether this wait-and-see attitude is adequate, and whether all options have been explored that would help us to reach the goal of monitoring and promoting the observance and incorporation of the UNís KRK in Germany.
While it is certainly not our primary task within Germany to, for example, do away with child labor on an all encompassing scale, one of our main tasks is certainly that of ensuring childrenísí rights to both parents. This includes children born both in and out of wedlock, and living in unified and separated family situations. In addition, there are a large number of children who must live under the extremely difficult and relatively unprotected conditions of a childrenís home. To the best of my knowledge, this represents the "lionís share" of the tasks with which the KRK presents us for German conditions. A childrenís lobby is missing! Those who address the problems in this area certainly do not do so for reasons of "specific" or egotistical self interest.
Based on traditional understanding, questions concerning family and parenting legislation have, until now, been almost exclusively determined by national statutes that legislators have practically been able to design and promulgate as they desired. In their constitutions, modern states have continued to hold fast to the stateís sovereignty with respect to creating its own, internal legislation. Nonetheless, it is precisely in this area that significant modifications are occurring: Both the steadily increasing number of instances with a foreign component, as well as the rapid advances in the employment of the Human Rights Conventions as an agent of international coordination have contributed equally to a situation in which national legislation can today no longer isolate itself. This has resulted in German Family and Parenting Legislation also coming under increasing international scrutiny.
In this context, three human rights agreements are of particular significance: · The European Human Rights Convention (EMRK) of November 4, 1950 (BGB1. 1952, II, p. 685); · The International Agreement on Civil and Political Rights (UN Civil Pact) of December 19, 1966 (BGB1. 1973, II, p. 1534), and; · The UN Agreement on the Rights of Children (Childrenís Rights Convention - KRK) of November 20, 1989 (BGB1. 1992, II, p. 121,990)
Based on their individual legislation, all three agreements have become part of German law. As the applicable law, their common human rights contents and assessments must perforce be taken into consideration, at least during each instance of the proposal of general clauses and undefined legal terms, and this regardless of any question of their direct applicability. This applies equally both to administrative authorities such as the Child Welfare Department as well as to all courts.
If, beyond this, there is a question of such precise stipulations that neither their content nor the will of the state in question require any further sovereign act on the part of the state, they can be even be accorded sole and final decision-making competence on the basis of their direct applicability. Such direct applicability has already been confirmed for broad sections of the EMRK and the UN Civil Pact. However, with respect to the KRK, the Federal Republic of Germany has, in a reservation whose validity is in doubt, at least from the standpoint of international law, specifically declared that this agreement shall "domestically find no direct application".
Measured against international legislation, but also in comparison to the majority of other, neighboring, European states, the German Family and Parenting Law currently represents a developmental dead end. This applies particularly to the Care and Visitation Rights, but also to a range of other areas. Numerous publications and publicly available scientific studies document the international law deficits of the currently applicable German legislation. Nonetheless, the draft of the Parenting Reform Law (BT document 13/4899) almost totally ignores the canons of international law. The entire KRK is merely worthy of only a brief mention in passing as part of the federal governmentís introductory remarks, while the EMRK and the UN Civil Pact are not even considered.
Even if the draft tends to move in the right direction, the verdict of incompatibility with international law continues to remain in force with regard to two central points. · This also applies, for example, to the planned, future improvement in the motherís custody situation when a child born out of wedlock is involved, or the lack of an applicable right on the part of the child to contact with its parents and other family members. In conjunction with the upcoming passage of the new, German parenting legislation, one must ask oneself why additional legal problems are being created from the very outset.
Based on even these rudimentary considerations, several central requirements can be derived, that experiences gained from the current reform discussions only succeed in be strongly confirming: 1. In the interest of the entire state, legislators must ensure that international law obligations are actually met and are included in the corresponding reform proposals. In a manner similar to that employed to examine the expected costs of new legislation, there exists a standardized procedure during the preliminary phases of every legislative proposal that would ensure this (i.e., "conformity with international law"). 2. The parenting reform law requires an additional, critical examination with respect to the precepts of international law. For this (as has already occurred in a similar manner for the legal comparison aspects), the opinion of an acknowledged international law expert should be obtained. 3. Regardless of individual reform proposals, the consciousness of the link to international law standards as the directly applicable law must be strengthened in each individual who will be responsible for applying the reforms. AS an initial step, this requires a corresponding distribution of the relevant agreement and convention passages. In particular, verdicts and decisions passed down by international law organs must, in future, be translated properly into German, published as soon as is practical after becoming available, and must be easily accessible. In view of increasing international interplay, it is also necessary that the role of international law be significantly enhanced, both in the area of legal training as well as in the general publicís consciousness.
If these requirements were also espoused by the National Coalition, their transformation would greatly simplify our task, and we could more rapidly reach our goals, not merely with respect to parenting rights.
Nonetheless, the question of the extent to which it is also the task of the National Coalition to initiate political and publicly effective actions to highlight behavior on the part of state organs that contravenes international law remains open to discussion. For this discussion, all member organizations can place their experiences and competence in the balance. The one-sided hope in a self-cleansing correction brought about by a veto by the Federal Constitutional Court is not an ideal solution. This is particularly true as the court has, in any case, already been called upon by others, i.e., in the area of the parenting law dealing with out of wedlock children, cited above (because the NC has made no attempt to organize such an action on the part of its members). After passage of the parenting law, the National Coalition will have to face the question of what politically decisive steps it did or did not take within the scope of its responsibilities.
Passage by the Federal Parliament is expected to take place at the end of September, Ď97. By July, all the important factions will have taken up their final positions.
In the hope of obtaining an opinion, I
remain, sincerely, Thomas Martin ( Representative for "Väteraufbruch
für Kinder e.V." at the NATIONAL COALITION)