- BVerfGE 77, 170 2 BvR 624/83 et al Chemical Weapons Storage
- 29 October 1987
- Zeidler, Dr.Dr.h.c.Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Grasshof
- © Nomos Verlagsgesellschaft
1. a) The Federal Government's participation in the conclusion of Article 1 (1) of the Convention on the Presence of Foreign Forces in the Federal Republic of Germany of 23 October 1954 (BGBl. 1955 II p.253) and of Article 53 (1), first sentence, of the Agreement to supplement the Agreement between the Parties to the North Atlantic Treaty regarding the status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany of 3 August 1959 (BGBl. 1961 II p.1183, 1218) is not a valid object of constitutional complaint.
b) The Federal Government's participation in the conclusion of these treaties constitutes an act at constitutional level not capable of bringing about legal effects within the State. These are brought about only by the Assenting Acts to the treaties, which issue the order to apply the law domestically.
c) Insofar as acts are attributable to the Federal Government in respect of the discussion, drafting and promulgation of assenting acts (for instance, under Article 58 Basic Law), they have, in the present context, no independent significance vis-à-vis the legislative act of the Bundestag.
2. a) In carrying out the protective obligations arising out of Article 2 (2), first sentence, of the Basic Law, both legislature and executive have broad leeway for assessment, evaluation and action, allowing room for possible concurrent public and private interests to be taken into account.
b) This broad freedom of action is subject to review by the courts only to a limited extent, depending on the specific nature of the issue involved, the possibilities of arriving at an adequately certain judgment and the importance of the legal goods at stake (cf. BVerfGE 50, 290 [332 f.]).
c) To meet the requirements on admissibility of a constitutional complaint based on infringement of the protective obligation arising out of the fundamental right in Article 2 (2), first sentence, of the Basic Law, the complainant must convincingly show that the authorities have either not taken protective measures at all or that the arrangements and measures taken are manifestly entirely unsuitable or completely inadequate to secure the object of protection.
3. a) Government measures to defend against armed attack from outside may well be bound up with dangers to the civilian population. Avoiding such dangers and the damage that may arise out of them is beyond the State's capacity where effective defence of the country, which serves to protect the free constitutional order which guarantees the fundamental rights, is to be guaranteed.
b) With the decision in favour of military defence of the country (Article 24 (2), 87a, 115 a ff. Basic Law) the Basic Law has indicated that the scope of protection of Article 2 (2), first sentence, of the Basic Law does not cover the effects on the population of the proper use, in international law, of weapons against a military adversary in the event of defence.
4. The stationing of chemical weapons in the Federal Republic of Germany with the object of deterring a possible adversary from employing chemical weapons, and possible second use of these weapons, proper in international law, are within the bounds of the alliance programme underlying the NATO Treaty.
Order of the Second Senate of 29 October 1987
in the proceedings on the constitutional complaints of R. et. al.
against the storage of chemical weapons (poison gas) in Fischbach, Rhineland Palatinate - 2 BvR 624/83 -,
against a) the Federal Government's assent to the storage of chemical weapons in the area of Mannheim,
b) toleration of this storage and the Federal Government's omission to see to its removal,
c) the Federal Government's omission to see to adequate saftey measures on such storage,
d) the Federal Government's omission to ensure by holding a hearing or other suitable procedures that the complainants could assert their constitutionally protected interests - 2 BvR 1080/83 -,
against a) the Federal Government's assent to storage of chemical weapons in the District of Main-Kinzig,
b) toleration of this storage and the Federal Government's omission to see to its removal,
c) the Federal Government's omission to see to adequate saftey measures on such storage,
d) the Federal Government's omission to ensure by holding a hearing or other suitable procedures that the complainants could assert their constitutionally protected interests
e) the German Bundestag's omission to enact regulations in statutory form on the storage of chemical weapons on the territory of the Federal Republic of Germany
- 2 BvR 2029/83 -
The constitutional complaints are disallowed insofar as directed against acts or omissions of the Federal Government; in other respects they are dismissed.
EXTRACT FROM GROUNDS:
The constitutional complaints concern the storage of chemical weapons (C-Weapons) on the territory of the Federal Republic of Germany.
The complainants assert that:
1. It is generally known that the forces of the United States of America stored part of their stocks of chemical weapons in the Federal Republic of Germany, the Federal Government being informed of details of the storage. Referring to provisions on the maintenance of secrecy, however, the latter declines to furnish corresponding information. Yet information on places where C-weapons are stored in the United States and on transportation of these weapons among these individual places is freely accessible. In the press and in the academic literature, however, presumptions as to the location, nature, volume and condition of C-weapons in the Federal Republic of Germany have repeatedly been made. Places in the immediate neighbourhood of which they, the complainants, live and work had repeatedly been mentioned as possible storage sites. Their homes and workplaces were between two and 33 kilometres from potential C-weapon stores.It is assumed that there are in these stores at least 1,000 tons of the nerve gases GB (Sarin) and VX, probably all contained in grenades. The storage and transport of these substances is bound up with considerable risks. Material defects or wrong handling of the weapons by members of the forces, or sabotage acts, could lead to uncontrolled releases of the poisonous substances and to pollution of the air and dangers to drinking water supplies...(further details).
Whether and when the Federal Government had consented to the setting up of individual C-weapons stores or to the storage of particular chemical weapons on German territory was unknown. The Federal Government had stated only that the stationing of chemical weapons in the Federal Republic of Germany in the period after 5 May 1955, the end of occupation status for the Federal Republic of Germany, required German consent....The Federal Government had declined to call on the United States of America to withdraw its C-weapons from the Federal Republic of Germany.
No statement by the legislature on the storage of chemical weapons on the territory of the Federal Republic of Germany existed. In the debates on the Assenting Acts of 24 March 1955 on the Convention on the Presence of Foreign Forces in the Federal Republic of Germany (the Presence Convention [AV]) and the North Atlantic Treaty (NATO Treaty), and on the Assenting Act of 18 August 1961 to the agreement between the Parties to the North Atlantic Treaty regarding the status of their Forces (NATO Status of Forces Agreement [NTS]) and the supplementary agreement arrived at in connection with this (Agreement to supplement the Agreement between the Parties to the North Atlantic Treaty regarding the status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany [ZA-NTS]) along with the Protocol of Signature (UP), the question whether and if so with what safety measures stationing of C-weapons in the Federal Republic of Germany could be accepted had not been considered. The fact that such consideration had not been made followed simply from the fact that the Bundestag was evidently not informed on the details of C-weapons storage on German territory.
Proceedings in which they, the complainants, could have asserted fundamental rights positions opposing the stationing of C-weapons had not been carried out, and were not available either.
The complainants petition for a finding that:
1) The Federal Government has contravened Article 2 (2) of the Basic Law by
a) consenting to the storing of chemical weapons in the Rhineland Palatinate, in the area of Mannheim, and in Hessen, in the District of Main-Kinzig,
b) tolerating the storage of these weapons and omitting to see to their removal,
c) omitting to see to adequate safety measures accompanying storage of these weapons and
d) omitting to ensure through a hearing or other suitable procedures that the complainants could assert their constitutionally protected interests.
2) The German Bundestag has by omitting to enact statutory regulations on the storage of chemical weapons on the territory of the Federal Republic of Germany contravened Article 2 (2) of the Basic Law.
2. On the question of the admissibility of the petitions, the complainants state the following. The impugned action or omission of the Federal Government and the Bundestag affected them directly and immediately in their right to life and to inviolability of the person. As possible neighbours of C-weapon stores, they were on the one hand exposed to the risks bound up with storage of C-weapons, of being killed or injured in the event of accidents or acts of sabotage; secondly, they were subject to increased danger of becoming victims of use of C-weapons in the event of conflict.
3. The constitutional complaints are said also to be justified.
a) The Federal Government is said, by consenting to the stationing of C-weapons on the territory of the Federal Republic of Germany or by tolerating such stationing, to have neglected the protective obligations incumbent on it, arising out of the objective legal content of the basic right to life and inviolability of the person. This should be concluded simply from the fact that the Länder authorities and municipal bodies responsible for disaster control were not informed of details of C-weapons storage and could therefore not make corresponding plans. The Federal Government's declaration that the population was not as far as humanly possible endangered by the stationing of C-weapons in the Federal Republic of Germany was instead not enough for it to be assumed that the requirements of Article 2 (2), first sentence, of the Basic Law had been met. The Federal Government would have to set out specifically what measures that would do justice to Article 2 (2), first sentence, of the Basic Law were available to ward off the dangers listed. The Basic Law offered no basis for assuming that in the military area the State was, by contrast with the civilian area, fully dispensed from the duty arising out of the precept of effective protection of rights, namely to give before the courts an account of safety provisions taken against danger. As long as the Federal Government had not rendered this account, it must be taken that the withdrawal of all chemical weapons from the Federal Republic was the only measure that would meet Article 2 (2), first sentence, of the Basic Law.
The removal of all C-weapons from German territory was, in regard to Article 2 (2), first sentence, of the Basic Law taken together with the principle of proportionality, also necessary because almost no situation was conceivable in which use of these weapons would be compatible with valid international law of war. The military interest in stationing them in the Federal Republic of Germany must, accordingly, weigh immeasurably less than the right to life and health of those affected by that stationing. Use of C-weapons in conformity to international law was practically to be excluded. It was true that second use of chemical weapons, that is, their use following previous use by the adversary, was no doubt not absolutely impermissible in international law. However, there was international customary law, codified in the First Additional Protocol of 1977 to the Red Cross Convention of 12 August 1949, banning "indiscriminate" use of weapons, that is, use not confinable in its effects to military targets; this prohibition was, according to general international law, irrespective of retaliation, and thus could not be infringed even if previously breached by the adversary. At any rate in densely populated Central Europe, it was scarcely possible to confine the effects of use of C-weapons to military targets . . . (further details).
The Federal Government took the following position:
1. The constitutional complaints are inadmissible.
a) It is true that the forces of the United States of America in the Federal Republic of Germany store a limited quantity of chemical weapons. The Federal Government was aware of details of the storage; the United States of America had not empowered it to give detailed information on the location and nature of the storage. It was however ready to accept that it be supposed that the complainants be neighbours of C-weapon stores. Abstractly, dangers could proceed from such stores, as from all weapon stores, and the State was constitutionally obliged to act against these by taking protective measures. It was recognized in the Federal Constitutional Court's case law that duties of this nature could correspond to rights that could be asserted by constitutional complaint. The complainants could therefore admissibly complain had they had their rights under Article 2 (2), first sentence, of the Basic Law directly and immediately affected by the storage of C-weapons itself.
But this was not true insofar as they referred to dangers connected with use of these weapons. The complainants would be affected by such use at most as a part of the population, but not individually. No conclusions could be drawn from a particular location of weapons as to the localities of possible use. The Federal Government was liable for defence of the Federal Territory in areas near the border. Moreover, use of C-weapons from the territory of the Federal Republic of Germany was in view of the international law ban on first use of such weapons conceivable at most as second use; accordingly, use of chemical weapons by a possible enemy would have to be regarded as the essential cause of the dangers of use complained of by the complainants.
b) The dangers asserted proceed from weapons under the control of the United States of America; their use was possible only on the basis of a decision of the American President following consultations in the context of the North Atlantic Defence Alliance. The decision taken by the United States in favour of stationing C-weapons on German territory was a sovereign act of a foreign State which could not admissibly be challenged by constitutional complaint. To be sure, the Bundestag and Federal Government had assented to this decision. By Article 1 (1) AV, from the date of entry into force of arrangements for the German Defence Contribution, forces of the same nationality and effective strength as at the time these arrangements entered into force could be stationed in the Federal Republic. This constituted approval of the armament of these forces existing in 1955 and of changes to weapons as part of modernization measures. Any increase to the effective strength of the foreign forces certainly required, by Article 1 (2) AV, the consent of the Federal Government. In respect of chemical weapons such assent had not since 1955 been given, since no increase in effective strength had taken place. The German assent to stationing of C-weapons given and maintained in the context of Article 1 (1) AV was, as an act of the public authorities within the meaning of Article 93 (1) (no. 4a) Basic Law, para.90 (1) BVerfGG, a valid object of constitutional complaint.
c) The constitutional complaints were however too late . . . (further argumentation).
d) aa) Petition (2) lacked any legally separate object of complaint. The petition asserted that the Federal Government's conduct complained of lacked a legal basis. But the complainants' objective was not to act towards creation of the allegedly missing legal basis. As followed from Petition 1) b), the constitutional complaints instead aimed at removing these risks by removing their source.Petition 2 was accordingly merely asserting a further ground for the alleged unconstitutionality of the Federal Government's conduct challenged. This was, moreover, confirmed by the justification for the constitutional complaint, according to which stationing was incompatible inter alia with Article 25 of the Basic Law; accordingly, there was no room at all for creation of the legal basis the complainants failed to find.
bb) Petition 2 was in any case inadmissible because there was no provision of the Basic Law that essentially defined the content and extent of the legislative obligation claimed . . . (further argumentation).
2. The constitutional complaints were in any case unjustified.
a) There was no constitutionally significant danger to the life and limb of the complainants from the storage of chemical weapons in the Federal Republic of Germany. The Federal Government had on the basis of the Protocol of Signature re Article 53 ZA-NTS convinced itself, most recently in December 1983 through an inter-ministerial group of experts, that this storage was taking place with guarantees of the highest safety requirements. The measures taken took account of dangers that could arise from the storage itself, environmental effects and intereference by unauthorized persons. Account was taken not only of the corresponding American provisions but also, for instance, of the principles applying in the Federal Republic to the handling of dangerous substances, pursuant to the Disturbances Order of 27 June 1980 . . . (further argumentation).
b) The complaint of infringement of Article 2 (2), first sentence, of the Basic Law, based on possible use, contrary to international law, of the C-weapons in question, was likewise unjustified. There was no legal rule or individual act interfering in the complainants' sphere to that effect. The complainants could not secure review of the compatibility of possible use of C-weapons with international law by appealing to their basic rights. This decision was in line with administrative court case law on the peaceful use of nuclear energy. This was based on the view that provisions serving to guarantee external safety could not be regarded as protecting individuals. The storage of chemical weapons on German territory was an act which on the Federal Government's view served to protect the external security of the Federal republic of Germany . . . (further argumentation).
c) Article 26 of the Basic Law was not infringed by a defence policy based on such an assessment. The complainants themselves had not asserted that an aggressive war was being prepared in connection with the stationing at issue. Nor could it be seen as a use or threat of force within the meaning of Article 2 (4) of the United Nations Charter. . . (further argumentation).
. . . .
The complaints 1) are inadmissible.
1) a) As emerges from the wording of petitions 1) a) and the reasons for the constitutional complaints, the complainants are opposing, firstly, possible storage of chemical weapons in the neighbourhood of their dwellings and workplaces. As the object of challenge they have then designated individual acts of the Federal Government whereby storage was allegedly assented to.
aa) There is no basis for the assumption, and it has not been put forward by the complainants, that such assenting acts were issued in execution of provisions of domestic law. Nor does anything else follow from the statements of the Minister of State in the Foreign Office, Dr.Corterier, to the German Bundestag, to which the complainants have referred (cf. German Bundestag, 9. WP, 73rd Session of 10 December 1981, Sten.Ber. p.4239; 117th Session of 30 September 1982, Sten.Ber. p.7139).
The foreign forces stationed on Federal territory with the agreement of the Federal Republic of Germany are according to a general rule of international law outside the sovereign power of the Federal Republic of Germany in procedural respects as regards their sovereign acts, among which is the storage of weapons for defence purposes; this rules out the adoption in connection with them of individual acts containing a unilateral sovereign regulation of an individual case. In the NATO Status of Forces Agreement and the supplementary agreement and protocol of signature thereto there are no provisions departing as far as the storage of arms is concerned by this rule. In particular, Article II, first sentence, NTS, which binds the forces "to respect the law of the receiving State", does not constitute any such provision. The enactment of administrative acts vis-à-vis the stationed forces in respect of arms for Alliance purposes on the accommodation made available to these forces for their exclusive use is inadmissible by Article 53 (1), first sentence, ZA-NTS too. Article 53 (1), second sentence, ZA-NTS contains only a reference to the substantive German law, not any "conflict-of-laws reference", which could include subjection to the sovereign authority of the Federal Republic of Germany in procedural respects. The only storage place coming into consideration for the arms at issue here is accommodation falling within the scope of application of Article 53 (1) ZA-NTS.
Nor can an argument in favour be found in the fact that German authorities, in implementation of the Federal Act on protection against noxious substances (BImSchG) or of regulations on the storage of substances hazardous to water supplies (see paras. 19 g - 19 l of the Water Resources Act [WHG]), which did not and do not rule out application of their substantive legal regulations to the storage of munitions by the stationed forces, had adopted such an act.
bb) Nor can it be seen that in implementation of the NATO Treaty, the NATO Status of Forces Agreement or the supplementary agreement to it, acts of the Federal Government were enacted from which a legally relevant assent to the storage of C-weapons on Germany territory and to details of this storage, namely their location on Federal territory, might be derived. It appears from the Federal Government's statement on the constitutional complaints that only the procedure for deciding on use of C-weapons stationed on Federal territory is an object of agreement under the NATO Treaty. Nor is their any indication that the stationing of chemical weapons in the neighbourhood of the places of residence or work of the complainants had been consented to during the validity of the now expired Forces Convention.
There is no indication either that agreements pursuant to Article 48 (1) (c), first sentence, (3) (a), first sentence, (b) ZA-NTS had come about or that assenting acts at issue here had been enacted in the framework of other provisions of the NATO Status of Forces Agreement and the supplementary agreement thereto.
cc) (1) Possible declarations of consent by the Federal Government pursuant to Article 1 (2) AV cannot however be taken as an object of challenge in the present context. In its opinion on the constitutional complaints the Federal Government has stated that declarations pursuant to Article 1 (2) AV were not made in respect of chemical weapons, because in this area effective strength had not been increased. There is no need at this point to go any further into this declaration, which is to be regarded as a legal averment. All that enters in here is the Federal Government's declaration to the best of its knowledge and belief that consent pursuant to Article 1 (2) AV was not given in respect of chemical weapons. The complainants have not asserted that there are doubts as to its truthfulness, nor is this evident. Petitions 1 a) are thus void insofar as they are directed against assenting acts pursuant to Article 1 (2) AV; they are inadmissible.
(2) Accordingly, the only object that can be considered of the petitions under 1 a) is the Federal Government's participation in the conclusion of Article 1 (1) AV and Article 53 (1), first sentence, ZA-NTS. But this participation is not a valid object of constitutional complaint.
The Federal Government's participation in concluding these treaties constitutes an act at the level of international law which was not yet able to bring about legal effects domestically. These are brought about only by the assenting acts to the treaties; it is these that issue the command to apply the law domestically. Insofar as actions in advising, drafting and promulgating the assenting acts are to be attibuted to the Federal Government (for instance via Article 58 Basic Law), they do not in the present context have any independent significance related to the Bundestag's legislative act, which was the essential normative element for the sphere of domestic law in the assent to stationing.
b) The complainants further oppose use of the weapons. As regards medium-range nuclear-equipped rockets on Federal territory, the Federal Constitutional Court has stated that "the right of decision and use of these systems is 'an essential component of stationing' and inseparably bound up with it", so that the agreement of the Federal Republic of Germany to stationing the rockets is therefore assent to possible clearance for use by the President of the United States of America, and to their use in accordance with the existing alliance arrangements (BVerfGE 68, 1 [90 f.]). For lack of opposing indications, it has been taken that the same applies to the weapons at issue here. But here too there is no assenting act of the Federal Government that could be a valid object of challenge by constitutional complaint. Accordingly, petitions 1 a) are also inadmissible insofar as they concern use of the weapons at issue. It cannot be seen that any sovereign act of the Federal Government exists outside the framework of Article 1 (1) AV which could be regarded as a legal basis for possible use of the C-weapons stationed on Federal territory and admissibly be challenged by constitutional complaint.
c) Insofar as the constitutional complaints are directed against individual acts of the Federal Government which might be a legally relevant basis for transport of C-weapons by the armed forces of the United States of America, they are equally inadmissible. The complainants' reference to the transportation of chemical weapons among various weapon stores in the United States of America shows that the challenges in the constitutional complaints are not aimed at transport of C-weapons within armed forces accommodation, but are directed against transportation going on outside that area. The empowerment of the American forces for such transportation follows from Article 1 (1) AV taken together with Article 57 (1) ZA-NTS. Article 57 (1) ZA-NTS states that the forces "have the right to cross the borders of the Federal Republic or to move within and over the Federal Territory in vehicles, vessels and aircraft"; it accordingly, comparably with Article 53 (1), first sentence, ZA-NTS, fills out in more detail the tacit assurance contained in Article 1 (1) AV of the freedom of movement of the forces essential to carry out the purposes of stationing, in a legally relevant fashion (cf. the Federal Government's Denkschrift on the NATO Forces Regulations and the additional agreements, BTDrucks. III/2146, Annex IV, p.232). The freedom of movement is, of course, limited by the norm of Article 57 (3) ZA-NTS. By this, German traffic regulations apply to the forces except as otherwise provided. The concept of traffic regulations is to be understood broadly: it covers abstract general regulations as well as individual acts of the executive power specifically concerning participation in traffic by land, water or air (see the Denkschrift, op.cit.). But it is to be taken that in respect of chemical weapons such individual acts, and therefore also individual acts of the Federal Government, that might be a valid object of constitutional complaint have not been taken.
The Federal Government, in its statement on the constitutional complaints, states that transport of chemical weapons on the territory of the Federal Republic of Germany has not taken place (cf. also BT, 9. WP, 133. Sitzung, Sten.Ber. Anl.20., p.8242; BTDrucks. 9/2356, p.30. 10/268, p.27; 10/289, p.24); in its answer of 20 August 1984 to a written question by Deputy Kelly and the parliamentary group of the Greens, the Federal Government explicitly included the air in this statement (BTDrucks. 10/1891, p.2). Possible future permission for transportation of chemical weapons by the American forces by air is not a sovereign act which could already be made the object of a constitutional complaint.
For an individual act of the German executive power that allowed transportation of chemical weapons by road by the armed forces of the United States of America and could be admissibly made the object of a constitutional complaint there is no legal basis in German legal provisions (cf. para.8 (1) of the Hazardous Substances Order (roads) 1985 [GGVS]). Essentially the same applies to transport of C-weapons by water, to the extent that this at all comes into consideration in the actual circumstances.
2. Petitions 1 b) are equally inadmissible.
a) This is true, firstly, insofar as the petitioners assert in them that the Federal Government is by Article 2 (2), first sentence, Basic Law bound to act against any storage of C-weapons within premises located in the immediate vicinity of their places of residence and work and made available to the stationed forces of the United States of America for their exclusive use. The omission impugned by this allegation lies in the assent by the Federal Government to such storage expressed in the conclusion of Article 1 (1) AV and Article 53 (1), first sentence, ZA-NTS.
b) Petitions 1 b) are likewise inadmissible insofar as they assert as regards the facts that the Federal Government or other organ of the German executive power competent for guaranteeing the safety of the arms storage as issue is - irrespective of the basic decision in favour of storing chemical weapons expressed in Article 1 (1) AV and Article 53 (1), first sentence, ZA-NTS - constitutionally obliged because of the hazards arising specifically from these weapons to act within the framework of Article 53 (4) ZA-NTS and (5) - (7) UP re Article 53 ZA-NTS to secure withdrawal of these weapons.
aa) The starting point has to be that the complainants have themselves immediately and directly been affected by the omission complained of.
(1) There is nothing against the assumption that the complainants live in the near neighbourhood of premises for military use made available to the forces of the United States of America for their exclusive use. The fact that the complainants are because of the secrecy of the siting of chemical weapons on Federal territory perhaps not in a position to show that C-weapons are stored at these sites, so that possibly the fact that they are personally affected by the sovereign conduct challenged in petitions 1 b) cannot be established, ought not a priori to bar all access by them to the Courts. It would amount to refusal of protection of constitutional rights were petitions 1 b) to be regarded as inadmissible on the ground that there was no certain knowledge whether the complainants were living and working in the hazard area of a C-weapons store. In cases like the present one it must suffice in order to secure legal protection for the possibility of being individually affected by the sovereign act impugned to be adequately shown (cf. BVerfGE 67, 157 ). This condition has been met by the complainants.
(2) It is true that the complainants have not been directly affected by the impugned conduct of the German executive power. The risks to life and health claimed have their immediate cause in the decision of the United States of America to continue storage of C-weapons brought onto Federal territory despite possible hazards resulting from these weapons; this decision is an act of non-German public authorities, not subject to German jurisdiction and therefore not to the jurisdiction of the Federal Constitutional Court either. As regards the guarantee of effective legal protection, however, the purely indirect effect through a related action of German executive power cannot be made to oppose the admissibility of the constitutional complaints (cf. BVerfGE 6, 290 ).
bb) Petitions 1 b) are not too late. Where a constitutional complaint is directed against an omission by the public authorities, the time limits of para.93 BVerfGG do not in principle apply.
cc) The complainants, however, have not managed to show that they have had their fundamental rights under Article 2 (2), first sentence, Basic Law infringed by the omission complained of. While the legal effects of the conduct by the executive power regarded by the complainants as proper within the context of Article 53 (4) ZA-NTS and (5) - (7) UP re Article 53 ZA-NTS were not confined to the level of international law, the possibility of infringement of Article 2 (2), first sentence, Basic Law is not thereby ruled out because the obligation on the executive to see to the necessary safety measures in storing the weapons, independent of the basic decision to station C-weapons, involves Article 2 (2), first sentence, Basic Law in its objective legal function as a "value-specifying rule of principle". The fact that Article 2 (2), first sentence, Basic Law does not merely guarantee a subjective right to protection but at the same time constitutes an objective legal value-decision of the constitution applying in all areas of the legal system and establishing constitutional protective obligations has been recognized in consistent case law of both Senates of the Federal Constitutional Court (BVerfGE 39, 1 [41 f.]; 46, 160 ; 49, 89 [141 f.]; 53, 30 ; 56, 54 [73, 78, 80]). If these protective rights are infringed, this simultaneously constitutes infringement of the fundamental right arising from Article 2 (2), first sentence, Basic Law against which those affected can seek protection by way of constitutional complaint. Both legislature and executive have broad scope for assessment, evaluation and action in meeting these protective obligations, which also leaves room for taking any possible concurrent public and private interests into account. This broad freedom of action can be reviewed by the courts only to a limited extent, depending on the specific nature of the area at issue, the possibilities of arriving subject at an adequately certain judgment and the importance of the objects of legal protection at stake (cf. BVerfGE 50, 290 [332 f.]). The fundamental right bound up with such a protective obligation is, having regard to this freedom of action, directed only at the taking of measures by the public authorities to protect the fundamental right that are not entirely unsuitable or completely inadequate. It is only in very special circumstances that this freedom of action can be restricted because only a particular measure can meet the protective obligation. To meet the requirements for admissibility of a constitutional complaint based on infringement of the protective obligation following from the fundamental right of Article 2 (2), first sentence, Basic Law, the complainant must conclusively show that the public authorities have either not taken protective measures at all or that manifestly the regulations and measures adopted are entirely unsuitable or completely inadequate to secure the object of protection. If the complainant wishes to claim that the public authority can meet its protective obligation only by taking a very specific measure, he must also conclusively show this and the nature of the measure to be taken.
This requirement is not met by the constitutional complaints. This is so irrespective of whether the C-weapons on Federal territory are as the Federal Government states fully serviceable militarily, or whether - as the complainants suspect - it must be presumed that they are at least in part unfit for use in a case of defence, and whether their storage on Federal territory is in other respects in accord or incompatible with objective constitutional law. The complainants have not claimed that the hazards inherent in the C-weapons storage at issue are completely uncontrollable, and that such hazards cannot be coped with by safety measures adequate to Article 2 (2), first sentence, Basic Law. Nor have they claimed that they have because of the secrecy of details of C-weapons storage been prevented from showing this. The weapons at issue have for some time been on Federal territory; the complainants were unable to name any incidents where specific damage or hazards to the population of the Federal Republic of Germany had arisen; not least in consequence of this, even without regard to the practice of secrecy in this connection, more detailed substantiation of their assertion that only efforts by the executive to secure withdrawal of the weapons would have done justice to the protective obligation under Article 2 (2), first sentence, Basic Law could have been expected of them. Nor have the complainants taken the detailed statements in the Federal Government's position in these proceedings regarding existing safety measures as an occasion to substantiate their submission in that respect in more detail.
3. a) Where the petitioners in petitions 1 c) claim that storage and transport of C-weapons on Federal territory ought at any rate not to take place without the safety measures they specify more closely, they complain in essence of the unconstitutionality of assent to this storage and such transport. This assent cannot however, as set out in 1) a) cc) (1), admissibly be challenged by constitutional complaint.
b) Petitions 1 c) would still be inadmissible if the complainants further wished to claim that the Federal Government or other competent organ of the executive power were bound, having regard to the state of the C-weapons storage on the Federal territory, to ensure in the context of Article 53 (4) ZA-NTS and (5) - (7) UP re Article 53 ZA-NTS that the safety measures described in the constitutional complaints be taken. Accordingly, the requirements of para.92 BVerfGG are not met. The complainants have not shown in full particulars that the Federal Government had remained completely inactive or that manifestly the measures taken were entirely unsuitable or completely inadequate. They submit that Article 2 (2), first sentence, Basic Law requires that the German authorities competent for disaster control, and other agencies, be informed of details of C-weapons storage, namely the place and type of the arms stored, and of transports of C-weapons; otherwise, in the event of damage, effective protection of the population, in particular smooth evacuation of areas affected and adequate medical provision, would not be guaranteed. This submission does not show that manifestly the measures taken are entirely unsuitable or completely inadequate nor that only the measures they call for would be suitable for meeting the protective obligation. In particular, it cannot be concluded from the complainants' presentation that with regard to needs of secrecy the protective obligations arising out of Article 2 (2), first sentence, Basic Law could not also be met through action, in the event of a disaster involving C-weapons, by the American forces to deal with the source of damage, and their taking of measures to protect the population, such as warnings, instructions as to what to do, evacuations and any necessary medical provisions - perhaps on the basis of an announcement by the American forces as to the nature and quantity of the substances released - in compliance with plans such as the legislation of the Länder provides or allows for in the event of disasters whose cause, course, effects and other particulars cannot be known in advance, or only in typical form.
4. Petitions 1 d) are also inadmissible.
In them, the complainants assert that stationing of C-weapons on Federal territory ought not to come about without prior procedures in which those affected by the hazards of stationing are given a possibility of information and of being heard. The complainants are hereby complaining of unconstitutionality of the basic decision in favour of stationing C-weapons in the Federal Republic of Germany. The submission that the Federal Government neglected to ensure such procedures thus concerns the Federal Government's assent to this basic decision, which cannot admissibly be made the object of a constitutional complaint.
Petitions 2 are admissible. . . (further argumentation).
Petitions 2 are however unjustified.
The legislature's assent to Article 1 (1) AV and Article 53 (1), first sentence ZA-NTS and Article 57 (1) ZA-NTS does not, insofar as it relates to the storage and transport of C-weapons by land, air or - the only thing to be considered here - inland waterways of the Federal Republic, infringe the fundamental right to life and physical integrity (Article 2 (2), first sentence, Basic Law).
1. a) The provision of Article 53 (1), first sentence, ZA-NTS whereby the stationed forces may take all the measures necessary for the satisfactory fulfilment of their defence responsibilities is in direct connection with the provision of Article 53 (1), second sentence, ZA-NTS. This declares the forces firstly, in derogation from Article II, first sentence, NTS and Article IX (3), third sentence, NTS, to be entitled within the accommodation made available to them for their exclusive use to apply their own regulations in the fields of public safety and order; secondly, it obliges the forces to comply with the rules of German law on public security and order where these make higher requirements. Besides the empowerment of Article 53 (1), first sentence, ZA-NTS to exercise the power of command, the obligation therefore arises for the forces, under Article 53 (1), second sentence, ZA-NTS, to observe the relevant German law on safety and order as a minimum standard. The Federal Government or other competent organ of the executive power is according to Article 53 (3) and (4) ZA-NTS and (5) - (7) UP re Article 53 ZA-NTS empowered to see to compliance with this obligation by the forces. There is no need to go into whether Article 53 (1), second sentence, ZA-NTS, by contrast with Article 53 (1), first sentence, ZA-NTS relates solely to the exercise of acts of the power of command and whether Article 53 (1), first sentence, ZA-NTS otherwise frees the stationed forces in deciding as to the adoption of these acts or otherwise (the "whether"), also from compliance with German law on public safety and order as a minimum standard and the German legal order in other respects. This question would be of relevance to the decision only if the dangers of storage of chemical weapons were in principle uncontrollable and could therefore no longer be tolerated in view of Article 2 (2), first sentence, Basic Law. That this was the case has not been asserted by the complainants; nor is there any basis for that. Nor is it clear whether the complainants assert that the German legal system contains provisions that would a priori exclude storage of chemical weapons on all or part of the premises made available to the stationed forces for their exclusive use.
aa) Among the norms of German law of public safety and order within the meaning of Article 53 (1), second sentence, ZA-NTS are the provisions of the Federal Noxious Substances Act (see the Federal Government's answer of 5 October 1983 to a major interpellation by the Green parliamentary group, BTDrucks. 10/444, p.9; Hessischer VGH, NJW 1986, p.677 ; Deiseroth, US-Truppen und deutsches Recht, 1987, p.120 with exhaustive argumentation). These are also applicable to munitions stores of the stationed forces (cf. para.3 (5) (3) BImSchG). Such stores must at least meet the safety standards ordered by paras. 22 ff. BImSchG (cf. Hessischer VGH, loc.cit. p.679). By para.22 (1), second sentence, BImSchG munitions stores must be set up and operated in such a way that harmful environmental effects by air pollution or noise avoidable with the current state of technology are prevented, and unavoidable effects of this nature, given the present state of technology, restricted to a minimum. Harmful environmental effects are by para. 3 (1) BImSchG nuisances which by nature, extent or duration are capable of creating hazards, considerable detriment or considerable annoyance for the generality or the neighbourhood. Among the hazards covered by para.22 (1), second sentence BImSchG are hazards proceeding from installations because of external effects. Para.22 (1), second sentence, BImSchG seeks to rule out all damage to the objects of legal protection under Article 2 (2), first sentence, Basic Law caused by the setting up or operation of installations, and, taken together with para.22 (1), first sentence, no.2 BImSchG, limit harmful environmental effects by air pollution to a minimum. This minimum is exceeded where the setting up or operation of an installation endangers the life or health of individuals. Here, as in the case of comparable provisions, it is to be taken that a hazard requiring defensive measures is present even in the case of a rather remote probability of occurrence of damage, where that damage, as with the emission of chemical weapons to the air, has effects grave in nature and consquences; here, then, there is more than a mere uncertainty of knowledge or suspicion of danger.
Among the provisions which the stationed forces must by Article 53 (1), second sentence, ZA-NTS continue to meet or at any rate take into account in virtue of Article II (1) NTS are the provision of para.19 g (1) WHG (see the Federal Government's answer to a written question by Deputy Vogt and the Green parliamentary group of 6 March 1985, BT-Drucks. 10/2984, p.2) according to which installations for storing substances hazardous to water supplies, which might include munitions stores, "must be of such a nature and design and constructed, maintained and operated in such a way that detrimental change in the properties of the waters covered by the Act 'is not to be feared'. According to the case law of the Federal Administrative Tribunal, this wording of the Act is to be understood to the effect that such a change must be unlikely in human experience and there must not even be the least suggestive probability of it (judgment of 16 July 1965, ZfW 4 , p.113 ff., 116)."
bb) The hazards to life and health of individuals - not covered by para.22 (1), second sentence, BImSchG - because of possible explosions in storage of munitions are, according to the Federal Government's statement on the constitutional complaints, taken into account by the armed forces of the United States of America within the context of Article 53 (1), second sentence, ZA-NTS by application of their own provisions on compliance with safety distances. It further follows from the Federal Government's statement that the forces have by applying provisions of their own within the meaning of Article 53 (1), second sentence, ZA-NTS for the event of occurrence of damage in storage of C-weapons taken precautions by measures to deal with the sources of damage. Finally, it can be taken from the Federal Government's statement on the constitutional complaint that the forces of the United States of America stationed in the Federal Republic of Germany counter hazards to life and limb due to lack of professional capacity and personal reliability of members of the forces entrusted with handling non-conventional weapons through corresponding service regulations and their application in the context of exercise of the power of command on the basis of Article 1 (1) AV and Article 53 (1), first sentence, ZA-NTS.
cc) In view of this regulatory structure, it cannot be established that the legislator's assent to the storage of chemical weapons contravenes Article 2 (2), first sentence, Basic Law. This is true also insofar as para.22 (1), second sentence, BImSchG does not rule out the setting up and operation of munitions stores where the appropriate safety provisions are complied with yet the possibility of occurrence of damage cannot be excluded with absolute certainty. There is no need to go into whether the residual risk remaining if the measures required by para.22 (1), second sentence, BImSchG to ward off hazards of defence installations are complied with exceeds the threshhold of encroachment on the objects of legal protection under Article 2 (2), first sentence, Basic Law; such encroachment would in view of the statutory reservation contained in this constitutional norm be covered at any rate by existing statutory regulations.
This is true also considering the fact that the Federal Minister for Defence is by para. 60 (1), first sentence, BImSchG, empowered to allow exemptions from the Federal Noxious Substances Act and the legal orders based on it for installations coming under para.3 (5) (3). For this empowerment can be taken up only in the presence of binding reasons of defence or to meet international obligations. Para.60 (1), second sentence, BImSchG provides that in the case of exemption decisions pursuant to para.60 (1), first sentence, BImSchG, protection against harmful environmental effects is to be taken into account. According to the will of the legislator, damage to the objects of legal protection under Article 2 (2), first sentence, Basic Law ought not to arise from such decisions either. It cannot be seen that the Federal Republic of Germany in the area of storage of chemical weapons is subject, for reasons other than defence of the country, to international obligations that could be met only by derogating from the requirements of the Federal Noxious Substances Act. Para.60 (1) BImSchG certainly tolerates a higher degree of hazard than para.22 (1), second sentence, BImSchG or other provisions of the Federal Noxious Sustances Act. External protection of the country's freedom by effective defence justifies the exceptional imposing of a higher degree of risk on the individual in respect of military installations than in the context of civil installations.
According to all this, these regulations do not exceed the permissible extent of statutory interference with the fundamental right guaranteed by Article 2 (2), first sentence, Basic Law.
b) Much the same applies to the legislator's assent to Article 1 (1) AV and Article 57 (1) ZA-NTS insofar as these concern possible transport of chemical weapons by the armed forces of the United States of America within the Federal Republic of Germany by land, air or inland waterways of the Federal Republic.
aa) The freedom given the forces by Article 1 (1) AV and Article 57 (1) ZA-NTS to move in and over Federal territory in vehicles, vessels and aircraft is limited, apart from the provision in Article 57 (3) ZA-NTS which binds the forces, unless regulations provide otherwise, to German traffic regulations, also by Article II (1) NTS which commands the forces to observe the law of the receiving State. Among the norms which the forces must by this follow or take into account are the Act on transportation of hazardous substances of 12 August 1975 (BGBl. I p.2121) and the legal orders issued on its basis. The Act on transportation of hazardous substances which according to para.1 (1), first sentence, applies to transport by rail, road, water and air, has the object of keeping the risk bound up with transport of hazardous substances "as small as possible" (Federal Government's explanatory statement on the draft of the Act, BRDrucks. 525/73 p.9). It seeks to exclude any damage to life or limb of individual third parties and in other respects to limit the hazards to the objects of legal protection under Article 2 (2), first sentence, Basic Law bound up with transport of hazardous substances by appropriate safety measures, which by para.3 (1), first sentence, no.12 of the Act also include measures for the event of damage, to a tolerable residual risk. Here too the range of hazards to be defended against is to be determined taking the severity of the nature and consequence of possible damage into account. In the interest of the country's defence, the Act allows exceptions from the requirements in this connection (para.3 (5)).
bb) By para.8 (1), first sentence, of the Hazardous Substances Order (Roads) 1985 (GGVS) issued on the basis of the Act on Transport of Hazardous Substances and para.17 of the Hazardous Substances Order (Roads) 1979, the provisions of the Order are to be regarded by the stationed forces as a minimum standard. To the extent that the Order does not simply prohibit transport of hazardous substances because of its inherent hazard potential, it imposes in general on those involved in transporting hazardous substances, over and above the duty to comply with the transport provisions contained in the annexes to the Order, an obligation "to take the requisite measures having regard to the nature and extent of the foreseeable hazards in order to prevent events of damage" and "should damage occur, to keep its extent as small as possible" (para.4 (1) Basic LawVS). By para.5 (2) (2) Basic LawVS, exemptions from the prohibition on transporting a particular substance or departures from the safety standard to be complied with under the Order may be allowed only given safety measures needful in accordance with the hazards arising from the substance to be transported, in line with the state of science and technology; if the safety measures are not in line with the state of science and technology, the exemption allowed must be regardable as defensible having regard to the residual risks. These requirements have to be met by the stationed forces too if in the interest of defence of the country they wish to depart from provisions of the order (para.8 (1), third sentence, taken together with para.5 (5), second sentence, Basic LawVS).
cc) For the area of air transport, an order corresponding with the Hazardous Substances Order (Roads) has so far not been issued. Accordingly, whether the safety standard for transport of chemical weapons by air required by German law is guaranteed is to be assessed directly according to the criterion of the Act on transportation of hazardous substances - taking due account of the interests of the country's defence.
dd) The same applies to such transport on internal waterways of the Federal Republic. For the Hazardous Substances Order (Inland Navigation) (GGVBinSch) does not - where it does not in any case exclude transport of chemical weapons - apply to transportation by forces vehicles in the furtherance of tasks of the country's defence (para.1 (7) Basic LawVBinSch).
ee) As regards the criterion set up by the Act on transport of hazardous substances and the Hazardous Substances Order (Roads) 1985 for the safety of transport of hazardous substances, and having regard to the fact that, according to the Federal Government's submission, service regulations of the armed forces of the United States of America exist and are applied, which contain far-reaching measures to ensure the professional capability and guarantee the personal reliability of all forces members charged with handling C-weapons, it cannot be stated that the legislator's assent to Article 1 (1) AV and Article 57 (1) ZA-NTS, insofar as they concern transport of chemical weapons, contravenes Article 2 (2), first sentence, Basic Law.
2. The legislator's assent to Article 1 (1) AV and Article 53 (1), first sentence, ZA-NTS and Article 57 (1) ZA-NTS, insofar as it concerns C-weapons and is an object of challenge, does not contravene the guarantee of Article 2 (2), first sentence, Basic Law on the ground that this would command refraining from decisions as to the storage or transport of C-weapons before those concerned have been notified, in a procedure, of the relevant intention and its bases, and had a chance to be heard. Such a requirement could follow only from the objective legal duty on the legislator to protect and promote the objects of legal protection under Article 2 (2), first sentence, Basic Law. The Federal Constitutional Court has not to date conclusively ruled whether and on what conditions, outside the sphere of "procedure-dependent" fundamental rights which are subject to procedure, such as Article 16 (2), second sentence, Basic Law (BVerfGE 60, 253 [294 f.]) and "procedure-related" fundamental rights like Article 5 (1), second sentence Basic Law (BVerfGE 57, 295 ; 60, 53 ), substantive fundamental-rights norms in their objective legal form entail a duty on the State to make available and implement procedures, and the corresponding right of the individual to "participation in procedures". In its decision on the Mülheim-Kärlich nuclear power station, the First Senate of the Federal Constitutional Court ruled that the procedural provisions in nuclear law on involvement of third parties with a right of action in licence procedures are procedural provisions enacted by the State in fulfilment of the protection obligations arising out of Article 2 (2), first sentence, Basic Law (BVerfGE 53, 30 ). This case cannot be transferred to the present case. In meeting protective obligations following from substantive fundamental rights the legislator has freedom of action that makes it possible to take opposing public and private interests into account. Thus, in answering the question whether particular decisions of the executive power that might affect fundamental rights of third parties may be taken only on the basis of a formal procedure guaranteeing involvement of those concerned, and in deciding the form of any such procedure, the legislator should not be guided solely by concern for the fundamental-rights positions of those involved; it is instead possible to consider further whether involvement of third parties might endanger the secrecy of militarily important facts (cf. BVerfGE 56, 298 ). Furthermore, questions of the safety of storage and transport of C-weapons are in view of the "passivity" of the hazard potential and the decades of experience in handling these weapons less complex than, for instance, those of operational safety of a nuclear power station or comparable installation. The legislator has accordingly not contravened Article 2 (2), first sentence, Basic Law by assenting to Article 1 (1) AV and Article 53 (1), first sentence, 57 (1) ZA-NTS, though the storage and transport of C-weapons are allowed by these without prior or subsequent proceedings involving those concerned.
The legislator's assent to Article 1 (1) nAV, Article 53 (1), first sentence, and Article 57 (1) ZA-NTS does not, insofar as it concerns chemical weapons and is the object of the proceedings, contravene provisions of objective constitutional law either.
1. The complainants' complaint that the general requirement of specific enactment calls for an explicit decision by the legislator on the stationing of C-weapons in the Federal Republic of Germany and exhaustive regulation of the necessary safety measures is not justified. It is true that the general requirement for specific enactment embodied in Article 20 Basic Law obliges the legislator, irrespective of the characteristics of the interference, to take all essential decisions in the area of exercise of fundamental rights itself - insofar as this is at all accessible to government regulation (BVerfGE 49, 89, ). It thus determines the "whether" and the "how" of legislative action. The decision on the stationing of C-weapons on Federal territory and the safety measures according to which storage and transport of these weapons has to take place is an "essential decision" within the meaning of Article 20 Basic Law which concerns the sphere of fundamental rights.
It need not be gone into whether the obligation on the legislator that accordingly exists under Article 20 Basic Law to act at all is restricted by Article 59 (2), first sentence, Basic Law. This would be the case if in order to understand the term used in Article 59 (2), first sentence, Basic Law, "matters of Federal legislation", it were, insofar as the area of the exercise of fundamental rights is concerned, necessary to base oneself not on the general requirement of specific enactment but on requirements for enactment contained in individual fundamental rights or in the "classical doctrine" on requirement for specific enactment. No closer consideration of this question is however necessary; for the legislator has in the present case acted by assenting to the Presence Convention and to the NATO Status of Forces Agreement and supplementary agreement.
It is by contrast relevant to a decision whether the general requirement for specific enactment in the sphere of Article 59 (2), first sentence, Basic Law applies insofar as it places requirements on the density of regulation of the sphere covered by the treaty. This question is to be answered in the negative. Otherwise, the Federal Republic of Germany would be constitutionally bound to conclude international treaties only where they displayed a considerable degree of specificity. Since the Federal Republic of Germany cannot unilaterally determine the detailed content of an international treaty, extension of the general requirement for specific enactment to Article 59 (2), first sentence, Basic Law insofar as it concerns the "how" of statutory regulation would in the sphere of treaties create a considerable danger of inability to act in foreign policy. This cannot be the meaning of the constitution of a State in the position of the Federal Republic of Germany. Accordingly, there is no constitutional objection to the fact that the legislator has not made a specific utterance on the stationing of the weapons at issue here and the safety measures that are to govern storage and transport of such weapons, but given its assent in general form through the provisions of Article 1 (1) nAV, Article II, first sentence, NTS, Article 53 (1) and 57 (1) and (3) ZA-NTS.
This leaves untouched the question of how far domestic implementation of an international treaty requires further statutory regulation in the light of the requirement for specific enactment. Having regard to the special nature of the area at issue here, more detailed statutory regulation would not have been required even then (on this see BVerfGE 49, 89 [134 ff.]; 68, 1 [98 ff]).
2. Article 24 (1) Basic Law has not been infringed. In this context, what the Senate stated in BVerfGE 68, 1 (89 ff.) regarding the Federal Republic of Germany's assent to the stationing of medium-range nuclear missiles applies mutatis mutandis. The existence of specific plans for use, which the complainants miss in connection with C-weapons, was plainly not a decisive ground for the Senate's decision to regard the assent mentioned as compatible with Article 24 (1) Basic Law. The stationing of chemical weapons in the Federal Republic of Germany with the objective of restraining a possible adversary from using C-weapons, and any possible second use of such weapons in accord with international law, are within the framework of the alliance programme underlying the NATO Treaty.
3. No infringement of Article 25 (1) Basic Law can be found. Use of the stationed C-weapons in accordance with international law does not seem to be ruled out as such. The Senate shares the Federal Government's view that such use is not, as second use, a priori inadmissible. Nor do the complainants dispute the permissibility of (second) use of C-weapons absolutely. As to the limit to this in accord with the rules of humanitarian international law of war, however, the Federal Governnment and the complainants take different views. But infringement of Article 25 Basic Law could not be found even were one to adopt the further-reaching legal position of the complainants that on the general rules of international law the effects of (second) use of these weapons must in every case be restrictable to military targets. The Federal Government is of the view that the possibility of such restriction can be assumed. The complainants dispute this, referring to the dense population of Central Europe, and suggest that evidence be secured on this from expert witnesses. But such evidence does not come into consideration, as not being suitable for showing the faultiness of the Federal Government's assessments. It cannot be certainly established in methodologically repeatable fashion that effects of (second) use of C-weapons in the event of conflict cannot be confined to military targets. This depends on such factors as the place and time of use of the weapons, the nature, effect and range of the weapons employed and the launch vehicles and the presence of population at the scene of conflict. Accordingly, it cannot be assumed that the possibility of restricting the effects of use of C-weapons to military targets is a priori excluded. For that reason alone, contravention of Article 25 Basic Law cannot be found.
4. Article 26 (1) Basic Law is not infringed. The complainants justify their criticism in this connection essentially on the consideration that the storage of chemical weapons at issue could in the event of heightened international tension lead to a threat of force contrary to international law, the occurrence of which the Federal Republic of German would in international law have to share responsibility for, without, for lack of power to decide, being able with certainty to prevent it. This submission does not stand up. It can scarcely ever be excluded as a pure possibility that those involved in international treaty regulations are also in a position to act against international law. Were the Basic Law to prevent the arising of such possibilities in order to forestall possible contraventions of international law, then the Federal Republic of Germany would be largely unable to act in the foreign policy sphere (BVerfGE 68, 1 ). This can scarcely be attributed to the Constitution.
This decision was in the result arrived at by seven votes to one.
by Judge Mahrenholz
to the Second Senate's Ruling
of 29 October 1987
- 2 BvR 624/83 et al.-
In part I cannot agree with the Senate's ruling.
The complainants have inter alia petitioned for a finding that the Federal Government has contravened Article 2 (2) Basic Law by omitting to ensure adequate safety measures in storage of chemical weapons. In this petition, the complainants also complain as unconstitutional of the fact that on the German side no measures to avert disaster have been taken. The Federal Government is said to be responsible for this.
In this connection I regard the petition as admissible, since it is adequately substantiated by the complainants' submission. In my view, it is also justified.
The complainants assert that disaster control must in principle - and therefore here too in the event of emission of rapidly lethal gas into the air for whatever reason - include measures to deal with the sources of damage, protect and if necessary evacuate endangered populations and provide medical care for the injured. Only the Federal Government, they say, in contrast with Länder offices, knows where chemical weapons are stored. This officially maintained secrecy is said to have made disaster control planning by the German side impossible so far. But such planning should by Article 2 (2), first sentence, Basic Law be arranged by the Federal Government, which is informed on the nature and extent of the poison-gas stores.
The Federal Government replied that the US forces had prepared proper and adequate measures on each of the three points mentioned above. For that reason, but also because of the safety provisions of the US forces and for reasons of protection of secrecy, it therefore saw no occasion for measures of its own.
If the Federal Government, in respect of disaster control planning by the US forces, refrains from any initiative of its own with the object of measures by the German side in the event of serious danger, than it is not meeting its protective obligation imposed on it by Article 2 (2), first sentence, Basic Law.
1. In its decision, the Senate has rightly stated, in accordance with the Court's case law to date, that even omission of due measures can contravene protective obligations and that this simultaneously constitutes infringement of the fundamental right arising out of Article 2 (2), first sentence, Basic Law, against which those concerned can defend themselves by constitutional complaint. It here regards the Federal Government's freedom of action in this connection as subject to only limited review, in the light of the review criteria set forth in the First Senate's "co-determination" judgment (BVerfGE 50, 290 [332 f.]; [B.I.2.b)cc)]). The decision there is linked with the present one by the fact that in both cases it is a prerogative of assessment - there the legislator's, here the executive's - that is at issue.
2. As regards the executive's freedom of action, the question to be tested is whether there exists a constitutional obligation on the Federal Government to pass the necessary information as to site and nature to the appropriate Land government with the object that the latter should set up cooperative disaster control planning between German and American agencies.
In my view it is clear that the Federal Government does have this obligation and that it accordingly contravenes its protective obligation and thus also the complainants' fundamental right under Article 2 (2), first sentence, Basic Law if it does not meet this obligation. It need not therefore be gone into whether the constitutional review of the Federal Government's action can in view of the scope of the hazards to be limited and the importance of the objects of legal protection threatened be confined to evidential review, or whether instead the review criterion should in the present case be intensified substantive review (cf. e.g. BVerfGE 39, 1 [46, 51 ff.] - para.218 StGB; 45, 187  - life imprisonment) or at least increased "intensity of review" in the sense of verification of justifiability should apply (cf. e.g. the Senate's ruling of 12 May 1987 - 1 BvR 1226/83 et al - subsequent admission of family members). The First Senate's case law contains an indication that limits are set to constitutional review of the legislator's responsibility "where objects of legal protection of the highest importance are not at stake" )BVerfGE 56, 54 ).
a) According to the constitution, life as an object of legal protection is a "highest value" (BVerfGE 46, 160  - Schleyer). Both Senates have, in decisions on nuclear law, derived precepts for action from Article 2 (2), first sentence, Basic Law. The Second Senate stated in connection with the question of safety measures in fast breeder technology that existing regulations which in the course of implementation lead to non-negligible endangerment of fundamental rights can themselves be in conflict with the Basic Law. Constitutional protective obligations might result. Given the nature and severity of the dangers, a remote possibility of their occurrence would have to suffice in order specifically to bring in the protective obligation (in that case, on the legislator too) (BVerfGE 49, 89 [141 f.] - Kalkar; emphasis added). The First Senate's Mülheim/Kärlich ruling says that the fundamental right under Article 2 (2) Basic Law is infringed not only by actual encroachment on the objects of legal protection therein. Instead, such actual contravention is to be forestalled, so that the fundamental right can enter in where precautionary measures against later operating risks are neglected in the construction of nuclear power stations (BVerfGE 53, 30 ). By licensing the plant the State had taken a share in responsibility for the extreme potential risk to which health and life were exposed to the peaceful use of nuclear energy (BVerfGE 53, 30, ).
b) As well as the eminent protective function of Article 2 (2) Basic Law against technological risks of a life-threatening nature and an extent not subject to statistical assessment recognized thereby, there are special features connected with the specific nature of a disaster resulting from emission of poison gas. In such a disaster, time counts. Merely by way of example, I would mention three specific life-threatening hazards resulting for the civilian population from emissions of gas and making cooperative disaster control planning indispensable (Specific application of the protective obligations of Article 2 (2), first sentence, Basic Law is a matter for the competent Land authority. Whether even the state of knowledge of the complainants, available also to the Länder governments, by itself establishes a protective obligation on them under Article 2 (2) Basic Law is not an object of these proceedings).
If there is a strong wind, the gas will be rapidly blown in a particular direction in a fairly dense concentration. Such a gas cloud might, according to the complainants' submission not disputed by the Federal Government, for instance, affect the city of Mannheim.
If gas-masks or other means against the effects of the gas exist, they could not be distributed without cooperative planning until after the occurrence of the disaster, to the police and other relief forces. The same applies to warnings and to provisions of all types of necessary resources for the population. The gain in time that might be secured through previous testing of cooperation would not be available.
Medical care would if it is to provide the best possible assistance have to be based on basic knowledge of German doctors on the nature of the gas and the possibilities and chances of medication. That medical care has to be delivered very quickly and in the worst cases on the spot is, given the extremely brief period within which assistance must be provided, predictable, so that cooperative planning of such assistance measures too is important.
3. a) The Federal Government's duty to act is not taken away because the US forces will in the event of a disaster likely do everything in their power to reduce the extent of that disaster in every respect mentioned by the complainants. For it may be taken as sound experience - asserted by the complainants for the planning of emergency measures for disaster control in the event of factory accidents (cf. indications and recommendations of the Baden-Württemberg Ministry of the Interior for the planning of emergency measures in the event of factory accidents, GABl. 1984, p.569) - that only prepared cooperation between the German and American services can limit the extent of disaster - which may mean the number of victims - to the unavoidable.
b) Nor is the extent of the protective obligation on the Federal Government reduced by the fact that it refers to the measures of the US forces to prevent such a catastrophe. The fact that adoption of the US forces' safety standards by the Federal Government cannot a priori suffice here is shown by the fact brought forward by the Federal Government itself that the area which according to the safety regulations of the US forces is to be assumed to be the endangered area in the case of a "maximum credible event" is even now barred to all public access. Reversing the conclusion, this submission implies that this area does not include the dwellings and workplaces of the civilian population. Nor can it be ruled out, whether here or anywhere else "with likelihood bordering on certainty" [see the Federal Government's presentation in the decision under A.V.2.b)aa)] that there may not be human errors on the part of the staff responsible for proper storage of the C-weapons. The measures described by the Federal Government to guarantee the reliability of the supervisory staff and of the safety measures against possible acts of sabotage increase security against disaster but do not rule it out. Disasters arising from risks themselves created by human hand (e.g. Seveso, Chernobyl, Basel-Sandoz) occurred despite the state of safety measures, until then regarded as sufficient. It was only the occurrence of the disaster that provided information as to their shortcomings. Accordingly, safety standards cannot replace the planning of protective measures to restrict the effects of an actual disaster. This is also the basis of the Federal Government's submission regarding the nature of planning of the structures of these stores and dealing with any source of damage, for which rights of representation by the German authorities are provided for in the regulations of Article 53 of the additional agreement to the NATO Forces Regulations and the Final Protocol on Article 53, cited by the Federal Government.
c) If specific effects of the absence of cooperation and disaster-control planning cannot be ruled out, then while secrecy needs may influence the nature and mode of disaster-control planning, they cannot a priori answer the question whether such planning should take place at all. Moreover, the sites of the stores inside and outside the country are more or less known; the complainants have provided evidence of these; it is the typical case of an "open secret". In view of this, it can hardly be conceived, and has not been asserted by the Federal Government either, that the government of the United States has or would oppose cooperative disaster control planning which would reduce the consequences of a disaster - something that would be in the common interest of acceptance of the NATO Alliance and of the storage of chemical weapons in the Federal Republic.
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