Robert Ensor

Attached is a letter I wrote to the President of the German Federal Constitutional Court. 

Section 3(2) of the German Basic Law declares that men and women are equal. However, section 12a states that only men can be conscripted for national/military service. This is clearly a contradiction. However, the Court has ruled that the German Basic Law can contain contradictions and that it is up to the Bundestag to determine that such contradiction are in fact contradictions and to amend the Basic Law accordingly. 

I am of the opinion that the Court's ruling is erroneous. At the very least the Court should declare one of the two clauses of the Basic Law to be inoperative to resolve the contradiction. However, leaving that aside, the argument in my letter is as follows.

By conventional legal practice, the Basic Law must be interpreted in a way that is consistent with international law, especially if the Bundestag has ratified an international treaty. Section 59 of the Basic Law provides for this.

In 1973 the Bundestag ratified the International Convention on Civil and Political Rights. The Bundestag has therefore already decided that the German Basic Law must be interpreted in the light of the ICCPR. This is not a decision that the Bundestag still has to take. The Constitutional Court itself is therefore acting in contravention of the Basic Law if it does not interpret it in the light of the ICCPR.

Article 26 of the ICCPR prohibits discrimination on the basis of sex/gender, even if the very existence of Germany as a state is threatened (Article 4.1). Military conscription only of men is discriminatory and therefore a contravention of the ICCPR. Section 12a of the German Basic Law must therefore yield to section 3(2) of the German Basic Law and the Constitution Court should interpret section 12a in a way that does not discriminate on the basis of sex.

Letter to the President of the German Federal Constitutional Court