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Background of Article 26, paragraph 2 of the German Constitution

The central claim voiced by the Outcry Campaign – Stop the Arms Export is the clarification of Article 26 paragraph 2 of the German Constitution. The campaign against weapons export at Living without Armament has established a legal overview as background information on Article 26. Subsequently, we will be documenting extracts from their summary.

In the aftermath of the events of World War II, the founding fathers wanted to stipulate Germany´s peacefulness. This lead to article 26 of the German Constitution. In order to further clarify the article, MP Eberhard suggested adding paragraph 2, which regulates trade with weapons produced for combat purposes. When designing the norm, there was major debate whether it should be a prohibiting norm and which term should be used to refer to weapons. Finally Article 26 Paragraph 2 was agreed to be a norm demanding prior approval and the term “Weapons destined to be used in combat” was established. Any future weapons production entailed that these were for defence purpose only.

The concept “Weapons destined to be used in combat” was supposed to be finally regulated in one detailed law; itindeed materialised in the KrWaffG. The law also regulates matters with a connection abroad, since import and export can imply transport and marketing.

Due to being closely linked to the term of combat weapons, the KrWaffG is more specific than the Foreign Trade Law, which describes all kinds of commodities, and therefore includes armament which is not classified as weapon of combat.

The KrWaffG does not include any regulations concerning armament which do not represent combat weapons. Even given the constitutional mandate of Article 26 Paragraph 2 of the German Constitution it was permitted to group such armament under the AWG. However, there is ground to support the idea that simple armament may be included under the KrWaffG regulations and that at least this would not contradict Article 26 of the German Constitution but contrarily might even be in line with this act.