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Non-Interference, U.S. Election Law and Germany's Obama Contribution

Tuesday, Aug. 5, 2008

The excitement -- however artificially stimulated by opening rock bands and generously inflated crowd estimates -- of Barack Obama's speech in Berlin is now passed. What remains are some serious questions: notably, for German Foreign Minister Frank-Walter Steinmeier and the Mayor of Berlin, Klaus Wowereit. The two leading Social Democrats -- both touted as possible candidates for the chancellorship in the 2009 German elections -- were also the two politicians most closely associated with the push to have the American presidential candidate give a high-profile public speech in the German capital.

It is a well-established principle of international law that states are not supposed to interfere in the internal affairs of other states. Some would now claim that this "principle of non-interference" has in practice -- notably since the Kosovo War -- been modified to permit foreign interventions in the case of severe human rights violations. But no one -- not even the German jurists and diplomats who have pressed for a "loosening" of the principle -- claims that it allows of any other exceptions.

The U.N. General Assembly's "Friendly Relations" Declaration of 1970 recognizes a "duty not to intervene in matters within the domestic jurisdiction of any State" and it lays down that "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State." The "Friendly Relations" declaration is the General Assembly's authoritative gloss on the guiding principles of international law briefly enumerated in article 2 of the U.N. Charter. The assembly has passed numerous subsequent resolutions specifically affirming the applicability of the norm to national elections as, so to say, the internal affair par excellence. (See here, for instance.)

The Helsinki Accords of 1975 -- the founding document of the Organization for Security and Cooperation in Europe (OSCE) -- reaffirm the principle of non-interference in unambiguous terms: "The participating States will refrain from any intervention, direct or indirect, individual or collective, in the internal or external affairs falling within the domestic jurisdiction of another participating State. . . ." The signatory states -- among them, the Federal Republic of Germany -- declare "their determination to respect and put into practice" each of the principles laid out in the accord.

One may be permitted to assume that at least Frank-Walter Steinmeier is familiar with the above. It would hardly be befitting someone in his position not to be. Nonetheless, it was none other than the German Foreign Minister who aggressively militated for giving the presumptive Democratic presidential nominee a highly visible public stage in Berlin. The proposition, as has been widely reported, met with the resistance of Chancellor Merkel, who correctly appreciated that such a move could be seen as interfering in an American election campaign. She found the idea "totally abnormal" [völlig unüblich], she let it be known. Nonetheless, when the Obama camp backed down from its maximal program of having the candidate speak at the historic Brandenburg Gate to the only slightly -- if indeed at all -- less maximal program of having him speak at the historical "Victory Column" one mile down the road, even the Chancellor abandoned her resistance.

In his efforts to provide the American candidate an effective setting for his campaign stop in Germany, Foreign Minister Steinmeier found a crucial ally in the mayor of Berlin. Far from sharing the Chancellor's reservations, Wowereit told the daily Die Berliner Zeitung that he would welcome Obama -- in his words -- "us[ing] Berlin as a platform to give an important speech." And as the authorization to use municipal property to this end would have to come from the Berlin city government, or Senat, that Wowereit heads, the mayor's receptivity to the proposition was of obvious relevance. The city government would also -- "of course" -- provide security for the event, Wowereit added.

To deflect the charge that the city of Berlin and Germany as such were thus facilitating the campaign of the Democratic candidate, Obama's German sponsors hit upon the idea of declaring that Obama would be speaking not as an American presidential candidate, but merely as a senator or even just a "private citizen" -- as if there were two Obamas and the presidential candidate had not made the trip. It was to this transparent alibi that Obama politely paid deference when, at the start of his speech, he announced: "Tonight, I speak to you not as a candidate for president, but as a citizen -- a proud citizen of the United States, and a fellow citizen of the world." His words were, however, clearly belied by the German-language flyers passed out to promote the event that bore both the candidate's campaign logo and the inscription "Paid for by Obama for America." The "private citizen" construction was, in any case, so artificial and convoluted that even its authors had trouble keeping their alibi straight. Thus, in his earliest remarks on the matter (German link), Mayor Wowereit insisted that Obama was coming to Berlin precisely as a candidate -- since, after all, not every "private citizen" could be permitted to "rent" the Brandenburg Gate.

By the time the event had been moved to the "Victory Column," however, all city officials had apparently been sufficiently drilled so as to be able to stick to the "private citizen" story, regardless of its implausibility. Thus on the day of the speech, Michael Bengsch of the Berlin police cheerfully noted that Obama had come to Berlin as a "private person" and that "he is even paying for the site of the event himself," just like "Michael Jackson" might. (Source: Westdeutsche Allgemeine Zeitung.) (This was, incidentally, the same Michael Bengsch who would later be widely cited in English-language media as the source of the clearly inflated 200,000 "police estimate" of Obama's crowd. As the Berlin police confirmed to me, that figure was in fact a "joint estimate," agreed upon by the police with the Obama team.)

The matter of the costs of the event is a far more vexed one than officer Bengsch apparently realized. Did the Berlin city government in fact require Obama to "pay for the site," as he said? As so happens, the site in question comprised not only the "Victory Column" as backdrop, but the entire "fan mile" between the column and the Brandenburg Gate. Unlike the Pariser Platz on the front side of the Brandenburg Gate, which is principally used by pedestrians and is often largely deserted, the boulevard between the gate and the column is a major thoroughfare. It had to be specially closed off to automobile traffic -- and during rush hour no less! -- for the Obama speech and the prior festivities. Even leaving aside the cost in inconvenience to Berlin residents, the price for "renting" a major Berlin thoroughfare, plus historical monument, must be presumed under ordinary circumstances to be considerable. If it was indeed a Michael Jackson paying for concert space, for instance, one could well imagine a price running into the many hundreds of thousands, if not millions of dollars. Even allowing for the $1.9 million in book advances that Obama has received from Germany's Bertelsmann Corporation -- as so happens the most politically influential corporation in Germany -- Obama the "private person" clearly does not have that kind of money to toss around.

If such a payment was indeed required, then, it would clearly have been paid not by Obama the "private person," but rather by the Obama campaign. If, on the other hand, no payment was required or the Berlin city government required payment less than that it would normally demand, then matters are even more serious: since this would amount to an illegal campaign contribution from a foreign source. Who paid, moreover, for setting up the stage? Who paid for the rock and reggae bands that "opened the show" before the "headliner" arrived? We know, at any rate, who paid for security: namely, the city of Berlin and hence, ultimately, German taxpayers. A special police deployment, reported to number some 700 officers, was assigned to the task. This treatment as well -- the sort that is ordinarily reserved for foreign heads of state or government -- constitutes a serious violation of the customary diplomatic protocols governing the relations among states.

At best, by providing Obama the high-profile "platform" put on offer by Frank-Walter Steinmeier and Klaus Wowereit, Germany involved itself in an American election campaign, thus violating a core principal of international law. At worst, by providing Obama the campaign "platform" and perhaps direct or indirect subsidies as well, Germany violated not only international law, but American law too.

In any case, whatever Americans may think of it, after Obama's appearance in Berlin one thing is now clear: in the American elections, he is Germany's candidate.

John Rosenthal is a World Politics Review contributing editor.

Photo: This photo of German Foreign Minister Frank-Walter Steinmeier and U.S. Sen. Barack Obama appears on the site of the German foreign ministry above the caption "These two agree." (DPA)