- BVerfGE 68, 1 2 BvE 13/83 Pershing II and Cruise Missile . . . Decision II
- 18 December 1984
- Zeidler, Rinck, Dr.Dr.h.c. Niebler, Steinberger, Träger, Mahrenholz, Böckenförde, Klein
- © Nomos Verlagsgesellschaft
1. a) Art. 59(2), first sentence, Basic Law is to be interpreted in the light of Art. 20(2) Basic Law. Extension of the Bundestag's participatory powers in national policy formation allowed by Art. 59(2), first sentence, Basic Law into the area of foreign relations beyond the range of international legal acts mentioned therein would constitute interference in central areas of decision of the Executive and run counter to the structure of the distribution of power, responsibility and control laid down in the Basic Law.
b) Art. 59(2), first sentence, Basic Law cannot be taken to mean that whenever an act of the Federal Government in international legal transactions regulates the political relationships of the Federal Republic of Germany or affects objects of federal legislation the form of an international treaty requiring legislative assent or participation must be chosen.
2. a) Art. 24(1) Basic Law does not assume that the transfer of German sovereign powers to an intergovernmental institution is irrevocable.
b) Art. 24(1) Basic Law cannot be taken to mean that transfer of sovereign rights is only ever present when an intergovernmental institution is allowed the power of direct enforcement on individuals.
c) Art. 24(1) Basic Law does not prevent sovereign territory of the Federal Republic of Germany from being made available in the context of a defence alliance for the stationing of allied forces, nor decision-making structures for the use of these forces that serve the defence goals of the alliance from being allowed, in order to guarantee the protection of the Federal Republic of Germany against attacks and thus promote the integrity of its constitutional order and of its sovereignty.
3. Assessments and evaluation of a foreign-policy or defence-policy nature are up to the Federal Government. The Basic Law sets only the bound of obvious arbitrariness to the power of judgment that is accordingly due the Federal Government. Within this extreme limit, the Federal Constitutional Court does not have to review whether evaluations or assessments of the Federal government are right or wrong, since legal criteria for this are not present; they have to be taken responsibility for politically.
4. Art. 59(2), first sentence, Basic Law and Art. 24(1) Basic Law contain an exhaustive arrangement for the spheres covered by them, and no legislative powers of the Bundestag alongside these result independently from the principle of democracy or from the importance and scope of a decision for the State as a whole. Under the parliamentary democratic system of government of the Basic Law, the government too is democratically legitimated institutionally, functionally and personally, and not confined a priori to the taking of politically less important acts.
Order of the Second Senate of 18 December 1984 on the basis of the oral proceedings of 17 July 1984 -- 2 BvE 13/83 -
in the inter-agency conflict proceedings on the petition to find that the Federal Government had infringed the Bundestag's rights under Art. 79(1), first sentence, taken together with Art. 24(1), 25 and 59 (2) first sentence, taken together with Art. 20(3) of the Basic Law by having omitted to secure, for assent to the equipping of forces of the United States of America stationed in the Federal Republic with nuclear equipped rockets of the Pershing 2 and Cruise Missile types, the constitutionally requisite authorization through an act of the Bundestag, petitioner: the Green parliamentary party in the German Bundestag, represented by its spokespersons Marieluise Beck-Oberdorf, Petra Kelly, Otto Schily, respondent: the Federal Government, represented by the Federal Chancellor, Bundeskanzleramt, Bonn 1.
The petition is dismissed.
EXTRACT FROM GROUNDS:
The object of the proceedings is the issue whether the Federal Government has, by agreeing to the installation of nuclear-equipped American intermediate-range missiles of the Pershing-2 and Cruise missile types in the Federal Republic of Germany without specific statutory empowerment, indirectly prejudiced or infringed rights of the Bundestag. The factual situation underlying the proceedings is set forth under A.I. in the Federal Constitutional Court's decision of 16 December 1983 in the case 2 BvR 1160/83 et al. (BVerfGE 66, 39 ff.).II: The petitioner is the parliamentary group of the Green Party.
a) In its written statement introducing the proceedings ... it had petitioned for a finding that:
The Federal Government infringed on the Bundestag's rights under Art. 79(1), first sentence, and Art. 20(3) taken together with Art. 59(2) of the Basic Law by having omitted to secure, for assent to the equipping of forces of the United States of America stationed in the Federal Republic with nuclear-equipped rockets of the Pershing-2 and Cruise missile types, the constitutionally requisite authorization through an act of the Bundestag.
In the oral hearing on 17 July 1984 it reformulated its petition as follows:
The Federal Government has infringed the Bundestag's rights under Art. 79(1), first sentence, taken together with Art. 24(1), 25 and Art. 59(2), first sentence, taken together with Art. 20(3) of the Basic Law by having omitted, for the assent to the equipping of forces of the United States of America stationed in the Federal Republic with nuclear-equipped rockets of the Pershing-2 and Cruise missile types, to secure the constitutionally requisite authorization through an act of the Bundestag.
b) In justification of its petition as initially submitted, the petitioner stated that the assent at issue involved rights of the Bundestag as legislator and constitutional legislator. For it had been associated with a transfer - contrary to Art. 24 Basic Law - of sovereign powers to the head of another state. It made possible the use of nuclear weapons to an extent incompatible with the requirements of international law on the admissibility of war reprisals, binding for the Federal Republic of Germany too in virtue of Art. 25 Basic Law. The installation of the new weapons, because of its far-reaching and intensive effects for the citizens of the Federal Republic of Germany, constituted an essential decision within the meaning of Art. 20(3) Basic Law. With the present petition, it was not a doubtful question of constitutional law that was to be clarified by way of abstract review of the lawfulness of the Federal Government's action, but the Bundestag's right to authorize the Federal Government to give the assent at issue by an Act, or to prevent the giving of that assent, that was to be asserted.
2. The Federal Government finds the petition submitted inadmissible; but also unjustified.
The petition is admissible, though unjustified.
The petition is unjustified.
The Federal Government's declaration of assent impugned has neither endangered nor infringed rights of the Bundestag under Art. 59(2), first sentence, taken together with Art. 20 (3) Basic Law or under Art. 79 (1), first sentence, taken together with Art. 24 (1) Basic Law.
It is beyond dispute that the Federal Government has assented to the installation of the weapon systems at issue on the territory of the Federal Republic of Germany and that a specific act explicitly authorizing this assent was not enacted.
The impugned assent was given in the context of the North Atlantic defence system. Its legal centre is the North Atlantic Treaty of 4 April 1949 (in the version of 17 October 1951 - BGBl. 1955 II p.289), the Brussels Treaty of 17 March 1948 on economic, social and cultural cooperation and on collective self-defence (Treaty on the West European Union /WEU/ in the version of 23 October 1954 - BGBl. 1955 II pp.283) and the Convention of 23 October 1954 on the Presence of Foreign Forces in the Federal Republic of Germany (BGBl. 1955 II p.253). The Presence Convention was concluded between the Federal Republic of Germany, the United States of America, the United Kingdom of Britain and Northern Ireland and the French Republic; it was, pursuant to its Art. 2, acceded to by states entitled to do so, the NATO members Belgium, Denmark, Canada, Luxembourg and the Netherlands; it came into force for all participants on 6 May 1955 (BGBl. 1955 II p.630), the date when the North Atlantic Treaty and the Treaty on the West European Union came into force in international law for the Federal Republic of Germany. The Federal Republic of Germany's accession to these treaty systems and the conclusion of the Presence Convention are politically and temporally extremely closely connected with conclusion of the Convention on relations between the three powers and the Federal Republic of Germany (the Germany Treaty) of 26 May 1952, with the additional agreements (in the version of 23 October 1954 - BGBl. 1955 II p.305), which led on 5 May 1955 to the termination of the occupation regime in the Federal Republic of Germany pursuant to its Art. 1 (see BGBl. 1955 II p.628; AHKABl (AHC Official Gazette). p.3272). These treaties created the legal framework for the "German Defence Contribution" to the "defence of the free world", mentioned in Art. 4(1) of the Germany Treaty and in the preamble to the Presence Convention. They are to be understood as a treaty system for collective self-defence within the meaning of Art. 51 of the United Nations charter - UNC -(see preamble and Arts.3, 7 of the NATO Treaty; Preamble and Arts.V, VI of the WEU Treaty). According to Art.IV of the Treaty on the West European Union, the parties and "any organs established by them under the Treaty shall work in close cooperation with the North Atlantic Treaty Organization. Recognizing the undesirability of duplicating the military staffs of NATO, the Council and its agency will rely on the appropriate Military Authorities of NATO for information and advice on military matters.".
The assent declaration impugned is an act of defence policy within the framework of this security alliance through treaties and of its implementation; it does not have the legal nature of an independent declaration of conclusion of a treaty; Art. 59(2), first sentence, Basic Law is applicable to it neither directly nor by analogy.
1.The assent was a legally relevant declaration within the context of a treaty system in international law, not merely a purely political declaration of intent which, since it had no legal effects, for that reason alone would not fall under the objective sphere of application of Art. 59(2), first sentence, Basic Law. It may be left out of account whether the Brussels double decision was an act of a special nature by the partners to the alliance; the latter attributed a binding character to the decision - though not yet a decisive one, having regard to the outcome of the Geneva disarmament talks. Thus, the communiqué on the Brussels meeting of 12 December 1979 speaks of a "modernization decision, including a binding determination of locations"; the Federal Government too saw the determinations of the double decision as "obligations" (cf. the Federal Chancellor's speech to the Bundestag on 3 December 1981, Bulletin der Bundesregierung 1981, p.995).
The legal relevancy of the Federal Government's assent declaration emerges at least from the fact that with the assent conclusively given on 16 November 1983 to implementation of the Brussels double decision the Federal Republic of Germany at the same time allowed the United States of America in international law, in its capacity as a partner to the NATO alliance, to install the weapons systems at issue to the extent decided, on the territory of the Federal Republic of Germany. It may be left out of account here whether this assent was required by Art. 1(2) of the Presence Convention or, as the Federal Government's attorney for the proceedings consistently explained in the oral proceedings, did not fall under the sphere of application of this treaty provision because, having regard to the installation of Soviet intermediate-range systems which had taken place, the installation of the American systems at issue would not increase the effective strength of the forces stationed in the Federal Republic of Germany within the meaning of Art. 1(2) of the Presence Convention. Even were the concept of effective strength to include this compensatory element - an interpretation of this concept would also have to take into account the consensual application in practice by the treaty partners to date - the legal relevancy of the assent declaration that had been given would not disappear; it would at least have the effect of a clarification in law, with all the consequences that international law associates with clarificatory legal acts.
2.The assent declaration impugned was not a constituent part of the conclusion of a treaty in international law. It is, of course, in no way out of the question for acts by organs or other collective acts of international treaty communities at the same time to constitute treaties to the same effect by the Member States, where they are undertaken with a will to that effect. The Member States of the European Community, for instance, occasionally use this form, in particular in order to bridge possible shortages of competences by the Community or set them beyond dispute. Accordingly, specific bases have to be present in order to establish such dual function.
In the present case there are no such bases or circumstances that can be seen, and that would indicate that the Federal Government's assent declaration was directed at simultaneously including a bilateral or multilateral treaty on the stationing of the weapons systems at issue. Nor can either the communiqué of 12 December 1979 on the "double decision" or the conduct of the United States of America as a possible treaty partner provide any such bases.
3.No grounds for the assumption that the Federal Government's declaration is ineffective in international law and can therefore not bind the Federal Republic of Germany can be seen. The Ministers of Foreign Affairs and Defence, who acted for the Federal Republic of Germany, were in German constitutional law empowered to give this declaration, at least in virtue of power of agency tacitly given by the Federal President, to represent him in his capacity as the organ competent to give such a declaration pursuant to Art. 59(1), first sentence, Basic Law. Moreover, according to general international law the foreign minister of a State is empowered to give binding declarations - including ones of the kinds at issue here (cf. e.g. Art. 7(2)(a) of the Vienna Convention on law of treaties of 23 May 1969). It is not apparent that the Declaration suffered from other defects in international law.
As the Senate already found in its ruling of 16 December 1983 (BVerfGE 66, 39 [64 f]), the assent declaration impugned does not infringe a binding norm of general international law either. The petitioner has not been able to show any general practice and legal conviction to this effect in the practice of States; the Senate by contrast shares the assessment of the position in international law presented by the Federal Government's attorney for the proceedings.
4.Declarations of the present nature in international law do not require, in order to be made, either assent or participation by the legislative bodies in the form of a federal law pursuant to Art. 59(2), first sentence, Basic Law.
a) In German State practice, unilateral declarations of intent in international law, in the context of existing bilateral or multilateral treaties, have in principle not been subject to such a requirement for assent. The same is true of other unilateral declarations of intent in international law, apart from special arrangements such as declarations in international law on the existence of the state of defence pursuant to Art. 115a(5) Basic Law. Thus, for instance, the recognition of many foreign States, the breaking-off of diplomatic relationships with foreign States, the claiming of the German Continental Shelf and of fishing zones in the North Sea and Baltic, or the denunciation of treaties in international law, have been undertaken by the Federal Republic of Germany without the Bundestag having given its assent to these acts in the form of a federal law. This practice is in line with relevant legal opinions in broad sections of the scholarly literature.
b) An extension of the requirement for assent pursuant to Art. 59(2), first sentence, Basic Law to acts other than declarations on the conclusions of treaties, is not compatible with the tenor of the provision. Analogous application of Art. 59(2), first sentence, Basic Law likewise fails.
Linking up with Art. 45(3) of the Weimar Constitution and its handling, according to which unilateral transactions in international law such as the denunciation of international treaties were not regarded as requiring assent from the Reichstag, Art. 58(2), first sentence, Basic Law - by contrast with Art. 81(2) of the Herrenchiemsee Draft (cf. J R n.F.1 , p.413 ff.) - limits the requirement for statutory assent explicitly to particular types of treaties in international law. Correspondingly, an agreement in international law which does not fall under the concept of "political treaty" and does not relate to matters of federal legislation will not be covered by Art. 59(2), first sentence, Basic Law, even if it has significant effects on the internal relationships of the Federal Republic of Germany (cf. BVerfGE 1, 372 ).
Whether this finding would be sufficient in itself to rule out analogous application of Art. 59(2), first sentence, Basic Law to declarations of the nature at issue here need not be gone into. For radical objections to such application follow at any rate from the position of Art. 59(2), first sentence, Basic Law within the structure of the Basic Law's assignment of State tasks to particular functions and their bearers.
Admittedly, Art. 59(2), first sentence, Basic Law, like a number of other provisions of the Basic Law, allows the Bundestag to some extent powers of participation in policy formation in undertaking acts in the area of foreign relationships. The areas involved in which this participation is constitutionally guaranteed, along with the form of action in which it constitutionally comes about, are both politically and legally of such weightiness that they cannot be treated as exceptions. From a historical point of view, these arrangements express a tendency to increased parliamentarization of policy formation in the area of foreign policy. Nevertheless, Art. 59(2), first sentence, Basic Law confines this participation both in its object to treaties of the type mentioned there, and also substantively to mere assent in the form of a federal law. Thus, the Bundestag can in virtue of Art. 59(2), first sentence, Basic Law, neither compel the Federal Government to refrain from, embark on or break off treaty negotiations or produce treaty drafts of a particular content, nor prevent it from doing so, nor can it force the conclusion by the executive of a treaty on which a consent act within the meaning of Art. 59(2), first sentence, Basic Law has been enacted, nor its termination in international law following conclusion, nor its upholding; the special arrangement on the conclusion of peace in Art. 115 l(3) Basic Law remains unaffected by this. Over and above the power to authorize or not to authorize the executive to conclude treaties of the type mentioned constitutionally in the form of a law, Art. 59(2), first sentence, Basic Law gives the legislative bodies no powers of initiative, shaping or control in the area of foreign relations. Nor can the provision be taken to mean that whenever an act of the Federal Government in international transactions regulates the political relationships of the Federal Republic of Germany or affects objects of federal legislation the form of a treaty requiring legislative assent must be chosen, as the petitioner thinks.
This strict demarcation of the powers allowed the legislative bodies under Art. 59(2), first sentence, Basic Law is an element in the separation of powers set up by the Basic Law. Art. 59(2), first sentence, Basic Law is to be interpreted in the light of Art. 20(2) Basic Law. The organizational and functional distinction and separation of powers laid down as a principle therein serves in particular for the apportionment of political power and responsibility and of control over the bearers of power; it also aims at securing the taking of governmental decisions as rightly as possible, that is, by those agencies in the best position to do so according to their organization, composition, function and mode of procedure, and acts towards moderation of State power as a whole. The concentration of political power which would lie in assigning the Bundestag central decision-making powers of an executive nature in foreign affairs beyond those assigned to it in the Basic Law would run counter to the structure of apportionment of power, responsibility and control laid down at present by the Basic Law. This is in no way changed by the fact that, at the federal level, only Bundestag members are directly elected by the people. The specific order of the apportionment and balancing of State power which the Basic Law wishes to see guaranteed must not be undermined by a monism of powers falsely derived from the democracy principle in the form of an all-embracing reservation on behalf of Parliament (BVerfGE 49, 89 [124 ff.]. Again, the principle of parliamentary responsibility of the Government necessarily presupposes a core area of the executive's own responsibility (BVerfGE 67, 100 ). The democracy constituted by the Basic Law is a democracy under the rule of law, and this means, in relation to the mutual relations of the organs of State, above all a democracy with separation of powers.
An extension of the objective area of application of Art. 59(2), first sentence, Basic Law to non-treaty acts of the Federal Government vis-à-vis foreign subjects of international law, even insofar as these acts regulate political relationships, would, in view of the overwhelming importance attaching today to foreign policy for the existence of the Federal Republic of Germany, constitute interference with central spheres of operation of the executive; it would largely shift political power away from the executive to the Bundestag in an area of action which, from a functional viewpoint, does not constitute legislation within the meaning of Art. 20(2), second sentence Basic Law. For the undertaking of the acts at issue here on the level of international law cannot, as such, in principle generate legal rules that apply domestically. The allocation in principle of acts in international transactions to the area of competence of the executive is based on the assumption that institutionally and in the long term it would be typically only the government that will adequately dispose of the personal, material and organizational capacities to respond speedily and properly to changing external positions and thus carry out in the best possible way the national task of responsibly handling foreign affairs. The tendency to increase parliamentarization of external power, expressed also in Art. 59(2), first sentence, Basic Law, does not run counter to this; for under the Basic Law the organs of the executive power too draw their institutional and functional democratic legitimation from the basic decision of the constitutional legislator taken in Art. 20(2) Basic Law (BVerfGE 49, 89 ). They also possess personal democratic legitimation, mediated through a chain of individual acts of appointment or recall to be traced back to the active citizenry, here in particular pursuant to Arts.38, 63, 64 and 67 Basic Law.
This prevents extension of the assent requirement of Art. 59(2), first sentence, Basic Law to acts of the type at issue here, by referring to the Basic Law's principle of democracy.
Nothing is changed here by the fact that such acts of the executive may, in individual cases, possibly bring about a binding in international law of the Federal Republic of Germany which can be dissolved with difficulty or not at all or brings about other effects which cannot be removed, or only with difficulty; whether such effects have been brought about by the assent impugned here need not be gone into. The requirement of Art. 59(2), first sentence, Basic Law that treaties of the type mentioned there require assent through a law in order to be concluded certainly has the intention of not letting long-term, still less in principle indissoluble, binding in international law come about without assent from the Bundestag, which might seem to be in favour of extended or analogous application of the provision to non-treaty acts in international law of corresponding scope. Nor can this be opposed on the ground that such far-reaching effects in international law only rarely occur with non-treaty acts: recognition of foreign States, of territorial changes, borders and other lines of sovereignty or legal relationships in international law, for instance, could very well possess comparably far-reaching importance and are in principle irrevocable if made without reservation. Declarations under the consultation procedure of the NATO Alliance may also be of equal importance.
The organization of democracy under the Basic Law is not, as explained, based on the allocation to Parliament of all acts and decisions which, in themselves or in their consequence, are of politically far-reaching or existential importance, or on involving it in these in the form of a law. The executive too, and within it in particular the Government, is formed as a "political" power and not, say, a priori confined to politically less important decisions. The State power in all its functions is, according to the Basic Law, though in differentiated fashion, democratically constituted and legitimated and organized on this basis in the form of a separation of powers. There is therefore by no means a deficit of democracy if the executive has even exclusive powers for far-reaching and perhaps existential decisions in the area of foreign affairs. Accordingly, political risks that may possibly be bound up with this separation of powers have therefore, according to the Constitution, to be put up with.
The Bundestag, if it disapproves of such decisions, still keeps its parliamentary control powers, even in foreign affairs; it can, if need be, elect a new Federal Chancellor and thus bring about the fall of the existing government: it can make use of its budgetary powers; but power of assent to acts of the type at issue here is not assigned to it by Art. 59(2), first sentence, Basic Law.
Art. 24(1) Basic Law has not been infringed.
1.By its assent, the Federal Republic of Germany has in accordance with the Resolution of the Foreign and Defence Ministers of the NATO countries of 12 December 1979 allowed the United States of America in its capacity as partner of a treaty alliance for defence and within its legal framework to install nuclear-armed rockets of the Pershing-2 and Cruise missile types, in specified numbers, on the territory of the Federal Republic of Germany. According to the guidelines agreed by the partners in the Alliance, the power to give clearance for military use of the weapon systems lies with the President of the United States of America; he has in each case before use, of a selective type, to consult the Alliance partners, with special importance attaching to the opinion of those Alliance partners from whose territory possible use may take place or which are providing the vehicle or nuclear warhead. This consultation procedure may be dispensed with where shortness of time or other external circumstances, such as defence against a surprise attack, so require. The power for operational military use of the systems at issue lies according to the present command structure of the Alliance, after clearance for operational command status, with the Supreme Allied Commander Europe of the Alliance (SACEUR). This decision-making structure takes account of the fact that the United States have the biggest nuclear weapon potential among the Alliance partners and are therefore particularly able and called upon to guarantee the protection of the Alliance partners against attack.
a) Provision to install the American weapon systems at issue on the territory of the Federal Republic of Germany does not, by itself, constitute transfer of sovereign rights within the meaning of Art. 24(1) Basic Law; the Federal Republic of Germany has not, by that alone, withdrawn a previously actually existing or legally possible exclusive right of rule (cf. BVerfGE 37, 271 ; 59, 63 . Neither the territorial nor the personal sovereignty of the Federal Republic of Germany suffer any additional restrictions thereby. A decisive point is that in the Federal Government's view (cf. Federal Minister for Justice, Verfassungsrechtliche und völkerrechtliche Fragen der Nachrüstung, 1983, p.28) the right of decision on the use of the systems is an "integral part of their stationing" and inseparably linked with it.
This legal effect of the assent is comparable with a transfer of sovereign rights within the meaning of Art. 24(1) Basic Law. Clearance for use and operational military use of these weapons from the territory of the Federal Republic of Germany cannot for the period of validity of the assent declaration impugned be determined by the Federal Republic of Germany alone; to that extent, it has withdrawn the previously existing exclusive legal claim to power, particularly having regard to the integrated command structure of the Alliance, in favour of non-German sovereign power. Nothing in this is changed by the fact that the Federal Republic of Germany has already undertaken by Art. 2 of the Treaty on Non-Proliferation of Nuclear Weapons of 1 July 1968 (BGBl. 1974 II p.786) not to take over the power to dispose of nuclear weapons or nuclear explosives from anyone whether directly or indirectly, nor to manufacture nor otherwise acquire nuclear weapons or nuclear explosives. Faced with this obligatory binding, which is in any case to be interpreted in the light of Art. 51 UNC, the assent at issue here constitutes a separate legal basis within the framework of the Alliance system mentioned; it would, for instance, remain unaffected by termination of the non-proliferation treaty.
b)This transfer of sovereign rights has not simply been made to the United States of America. Were that the case, Art. 24(1) Basic Law would at any rate not come in directly; it presupposes that sovereign rights have been transferred to an "intergovernmental institution". The assent declaration impugned allows the United States of America to decide clearance for use of the weapon systems at issue exclusively in its capacity and role of an Alliance partner in accordance with the NATO treaty system, in particular with the consultations agreed for clearance for use and the guidelines for use and associated plans. It relates to the weapon systems mentioned only as weapons of the NATO Alliance, with the consequent restriction on their usability for the purposes and tasks of the Alliance.
This treaty position is - at any rate from the constitutional viewpoint of Art. 24(1) Basic Law - to be assessed on the whole to the effect that the President of the United States of America is entrusted thereby with a special function in the Alliance; to the extent that he takes a clearance decision within the framework set up by the assent declaration that the Federal Government impugned, he can be regarded as a special organ of the Alliance. Moreover, considerable viewpoints in international law are in favour of the view that such action by the President of the United States of America ought to be attributed to the Alliance as such.
This constitutional outcome is supported also by the fact that in the communiqué on the Brussels Resolution of Foreign and Defence Ministers of NATO countries of 12 December 1979, point 7 speaks of the LRTNF potential of NATO. Additionally, delivery systems and warheads, the installation of which the Federal Government has agreed to, are brought into the Federal Republic of Germany by units of the forces of the United States of America; they are included in operational planning of the indicated NATO command staffs and subject in accordance with the present command structure, when the operational command situation comes about, to the so-called operational command, namely the Supreme Allied Command Europe of the Alliance (SACEUR).
c)The assent impugned, insofar as it develops legal effects for clearance for use and operational military utilization decisions, is thus to be regarded as a transfer of sovereign rights within the meaning of Art. 24(1) Basic Law to the North Atlantic Treaty Organization. Nothing is changed in this by the fact that the Supreme Allied Commander of the Alliance in Europe is on current practice at the same time an American officer and as such subject to the command sovereignty of the United States of America. The Federal Government's assent impugned here refers, as explained, solely to stationing and use of the weapon systems at issue within the framework of the Alliance system.
aa)NATO is an intergovernmental institution within the meaning of Art. 24(1) Basic Law. This is largely undisputed in the scholarly literature. The supposition that the assent declaration impugned has transferred sovereign rights within the meaning of Art. 24(1) Basic Law to NATO is opposed neither by the fact that the NATO Treaty leaves it up to each Contracting State to judge whether an Alliance case within the meaning of Art. 5(1) is present, and if so, in what way it is going to meet its duty of assistance, nor that the Alliance command staffs do not, before the operational command situation begins, have any power of command over those forces assigned by the Member States to these staffs for the purpose of operational planning within the context of the relevant decisions of the North Atlantic Council; nor is it opposed by the fact that decisions of the NATO Council in principle have the effect only of recommendations, that allocation of forces to operational planning may be revoked by the individual Member States or that the Treaty is, according to its Art. 11(1), implemented by the Member States "in accordance with their constitutional procedures". Art. 24(1) Basic Law does not presuppose that the withdrawal of German sovereign power in favour of the intergovernmental institution is irrevocable. Nor does it require that present claims and transfers of sovereign rights not be made dependent on whether the Member States of the intergovernmental institution evaluate particular types of international situation in a particular way each for themselves.
Instead, the decisive point is that the German act of transfer constitutes an indispensable legal basis for the event of actual claiming of these sovereign rights. This is the case here. The assent declaration impugned constitutes a legally indispensable precondition in the framework of the Alliance system for the United States of America to be able to decide, in its capacity as Alliance partner and within the framework of the legal commitments of the Alliance system, on clearance for use, and for the relevant integrated command centres of the Alliance to decide on operational military use of the weapon systems at issue, stationed on the territory of the Federal Republic of Germany. Nothing is altered in this by the fact that this decision-making power may possibly only be acted on in future and is in the framework of the Alliance system dependent on other objective and procedural preconditions before it can be made use of. The Federal Government's assent declaration makes the claim on them under the Treaty legally possible; this is already a transfer of sovereign powers within the meaning of Art. 24(1) Basic Law.
It cannot be deduced from Art. 24(1) Basic Law that even before the operational command position starts there must be legally given command power for the integrated NATO command centres over German forces or inhabitants of the Federal territory. Nor can it be made to mean that transfer of sovereign powers is to be assumed only where the intergovernmental institution is allowed direct right of action vis-à-vis individuals. It need not therefore be gone into whether, in view of the presently existing assignment of Bundeswehr units to NATO, direct operation of command, following the start of the operational command position, exists also in connection with decisions on use of the weapons systems at issue.
Again, the circumstance that involvement of the Federal Republic of Germany in the clearance decision for use of the weapon systems at issue is formally confined to the consultation procedure and that it possesses no right of co-decision, not even in the form of a veto right, does not rule out applicability of Art. 24(1) Basic Law. This decision-making structure takes account, as mentioned, of the special role of the United States of America as the big nuclear power of the Alliance, and of the Federal Republic of Germany's treaty acceptance of the policy of non-proliferation of nuclear weapons. At any rate for this politically very sensitive area, one cannot deduce from Art. 24(1) Basic Law the requirement that the Federal Republic of Germany must, in order to be able to transfer sovereign rights, necessarily possess a formal right of co-decision. It need not be gone into whether transfer would be admissible if every influence of the Federal Republic of Germany on the decisions of the intergovernmental institutions were excluded, or if it had only a discriminated status by comparison with other comparable States. Neither is the case here.
bb)While the Federal Government itself does not see the assent given as a transfer of sovereign rights within the meaning of Art. 24(1) Basic Law, this does not stand in the way of a different constitutional evaluation by the Federal Constitutional Court. The Federal Constitutional Court, accordingly, does not attribute any other significance at the level of international law to the assent declaration impugned than does the Federal Government. Whether the Alliance system at issue is, as is the respondent's view, also a system of mutual collective security within the meaning of Art. 24(2) Basic Law, and the Federal Republic of Germany has in the context of this system accepted through its assent limitations on its sovereign power, need not be decided here.
2.The transfer of sovereign rights at issue here is also materially compatible with Art. 24(1) Basic Law; it neither required prior amendment to the wording of the Basic Law nor infringes limits set in Art. 79(3) Basic Law.
a)Art. 24(1) indeed makes it possible in the context of a defence alliance to make territory of the Federal Republic of Germany available for stationing allied forces and to allow command structures over these forces and their use that serve the defence goals of the Alliance.
It was already part of the character of traditional military alliances that forces of other Alliance partners had rights of passage, stay and operation on the territory of another Alliance partner without being subjected to that Alliance partner's sovereign power or being incorporated into his forces. That may have brought about a temporary restriction or lessening of the sovereignty of the Alliance partner concerned, but such restrictioning and lessening was no more than an indispensable precondition for the protection which, for lack of adequate forces of his own, he sought in the Alliance.
Just this is the point today of this stationing bound up with transfer of sovereign rights: to guarantee protection of the Federal Republic of Germany against attacks and thus promote the integrity of its constitutional order and its sovereignty. Both the legislator in assent to the Alliance system and the Federal Government in giving the assent impugned here have clearly so assumed. The Federal Government explained in the oral proceedings, through the Federal Minister for Defence, its view that the Soviet side had an extent of armament that was neither provoked by Western armament measures nor justified by Soviet security interests, and additionally put the strategic unity of the Alliance in Europe in question; in view of the Soviet attitude towards the question of bringing about approximate equilibrium in intermediate-range weapons, the Alliance had had no other choice than now to begin the stationing of the weapon systems at issue, agreed in 1979.
Assessments and political evaluations of this nature are incumbent on the Federal Government. The Basic Law sets to this power of judgment only the bound of evident arbitrariness. Within this extreme limit, the Federal Constitutional Court has not to consider whether assessments and evaluations of this nature are right or wrong, since it lacks legal criteria for this; responsibility has to be taken for them politically.
In the present case it cannot be found that to that extent constitutional limits have been crossed.
b)By Art. 24(1) Basic Law it is reserved for the legislature itself to decide whether and to what extent sovereign rights ought to be transferred to an intergovernmental institution. The transfer takes place through acts in international law; empowerment for this must take place "through a law". This constitutional requirement has in the present case been met by the Act on Accession of the Federal Republic of Germany to the Brussels Treaty and the North Atlantic Treaty of 24 March 1955 (BGBl. II p.256) and the Act on the Convention of 23 October 1954 on the presence of Foreign Forces in the Federal Republic of Germany of 24 March 1955 (BGBl. II p.253); both Acts must here be seen in connection with the Alliance system of which the treaties are integral parts.
The Presence Convention is a legal treaty basis for the stationing of allied forces on federal territory . The entitlements to stationing on German territory were allowed the parties to the Treaty because of their position as members of the North Atlantic Defence Community and having regard to the concomitant commitments. This is clear from the historical context mentioned of the conclusion of both treaties with the Federal Republic of Germany; indeed the very wording of the Presence Convention, in particular Art. 1(4), as well as the Government's explanatory statement to the Draft Assenting Act (op.cit., in particular the preliminary remarks) show this connection to have been desired by the Treaty States.
The assent impugned is covered by statutory empowerment:
aa)(1) The North Atlantic Treaty contains no provisions explicitly assigning to NATO powers corresponding with the Assent Declaration. It does not however follow from this that in the present case the requirements of Art. 24(1) Basic Law have not been met. As the Senate decided in its ruling of 23 June 1981 (BVerfGE 58, 1 [36f.]), the objective scope of the reservation as to enactment in Art. 24(1) Basic Law is in part to be determined having regard to the way in which the institutions within the meaning of this provision at intergovernmental level are set up and function. This typically comes about as part of an integration process. In its development over time, a number of individual implementing acts are required in order to bring about the situation aimed at by the Foundation Treaty. The legal forms in which this comes about may be manifold. Even where the Foundation Treaty itself has not set out the course of an integration process in content, form and timing, there is no a priori need for a separate act within the meaning of Art. 24(1) Basic Law for the individual implementing steps. It can be done without where the Foundation Treaty, assented to by a law, has regulated this future course of implementation sufficiently definitely. Major changes to the integration programme laid down there and to its implementing steps are however no longer covered by the original assenting act pursuant to Art. 24(1) Basic Law. The criteria of such adequate definiteness must be derived from the special nature in each case of the actual situation regulated by the Foundation Treaty in the light of the objects of legal protection under Art. 24(1) Basic Law and of the freedom of action made possible by the provision and its practicability in the international sphere.
2.Measured against this, the transfer of powers to use the weapon systems at issue, stationed in the Federal Republic of Germany, by the Federal Government's assent impugned did not require a separate act under Art. 24(1) Basic Law:
In the preamble to the North Atlantic Treaty, the Treaty partners confirm their resolution to combine efforts for joint defence and for the maintenance of peace and security. In Art. 3 of the Treaty it is agreed that in order better to achieve the Treaty goals the joint and several power of resistance against armed attacks will be maintained and further developed jointly and severally through constant, effective self-help and mutual support. Art. 9 of the Treaty states that the NATO Council has, without delay, to set up a defence committee; this is to recommend measures to implement Art. 3 and Art. 5, which lays down a duty of assistance in the event of armed attack. The preamble and provisions mentioned show that the NATO Treaty is oriented essentially towards the possibility of advancing organization and integration of the defence efforts and defence forces for the territory protected. That this programme embodied in the Treaty is not described in more detail and the political or legal course of making it a reality is not more precisely specified is part of the special nature of the field the Treaty covers. The appropriate organization of joint defence and the measures necessary therefor cannot be fully specified beforehand, because of the continual changes in the political and strategic environment surrounding the Alliance partners individually and in their alliance, such as changes in the political and strategic forces or conceptions of a possible assailant, as well as because of constant changes in other important relationships and circumstances important for security policy such as the ongoing development of arms technology and arms techniques, on whatever side. Detailed treaty provisions on strategic conceptions and plans, on the organization, nature, size and stationing of forces and their equipment, and on command structures could very soon prove outdated in present circumstances, having regard to the object of the Treaty, namely guaranteeing security and peace for the Treaty parties. These dynamics are typical for the sphere the Alliance Treaties have undertaken to regulate. If the object of the alliance is to be achieved, speedy, flexible measures must be possible, the content and legal forms of which cannot be fully determined in advance. Only comparatively open provisions such as the North Atlantic Treaty contains are appropriate for this. In this light, the North Atlantic Pact can be seen as a treaty system the provisions of which describe the integration programme set out as possible in it adequately within the meaning of Art. 24(1) Basic Law. Alliance policy measures within this framework do not in every case require separate assent in the form of a law pursuant to Art. 24(1) Basic Law, not even by way of "remedying a defect of statutory empowerment". That is the position here:
The programme of military integration was laid before the eyes of the legislator in adopting the Act on accession of the Federal Republic of Germany to the Brussels Treaty and the North Atlantic Treaty. At the London Nine-Power Conference of 28 September to 3 October 1954, the powers in the conference, which were members of NATO, agreed under Section IV of the Final Act to recommend to NATO to strengthen the organization by placing in principle all the forces of NATO States stationed on the Continent under the authority of the Supreme Allied Commander Europe of the Alliance ("shall be placed under the authority..."). The wording of this agreement was also before the Bundestag when it took its decision, as was the NATO Council Resolution on implementation of this section of the Final Act of the London Conference. Correspondingly, the Federal Government's explanatory statement on the draft law concerning accession of the Federal Republic of Germany to the Brussels Treaty and the North Atlantic Treaty speaks of an "integrated strike force", and the special report of the committee on questions of European security on this draft law of a "unitary organization" through integration and joint command centres.
Nor did the Bundestag in adopting the Act make an explicit or tacit reservation regarding the nature and extent of relevant armament of forces or the possible powers of NATO on the question of the use of particular types of weapons, in particular nuclear weapons, from German territory. The legislature was, in taking its decision, aware in particular of the storage of nuclear weapons on the territory of the Federal Republic of Germany (cf. the statements in the General Report of the Committee on Foreign Affairs on the draft law on accession to the Brussels Treaty and the North Atlantic Treaty [BT-Drucks, II/1200, p.49], the statements by Bundestag member Erler to the 70th Session of the 2nd German Bundestag on 25 February 1955 [Sten. Ber., p.3723, 3729, 3732] and the statements by Federal Chancellor Adenauer at that Session [loc.cit. p.3736]). There are no indications that the Bundestag wished with the assenting act to rule out entrusting to NATO organs the powers to use nuclear weapons stationed on the territory of the Federal Republic of Germany, or make it the object of a separate act.
(3)An important change to the Alliance programme to which the legislator assented when the Federal Republic of Germany joined the Alliance structure would not be present, even were one to take the qualitatively new strategic dimension of the weapon systems at issue on their installation on the territory of the Federal Republic of Germany, assumed by the petitioner, as correct. The basic orientation of the Alliance system as a defence alliance, embodied in the treaty bases mentioned, remains unaffected thereby. The fact that over time in such a defence alliance with a long-term orientation (cf. Art. 13 of the NATO Treaty, and Art.XII(3) of the WEU Treaty), in view of the above mentioned dynamics of the political situation and technological developments, risks and strategic situations can change, sometimes very quickly, and that both defence policy and military doctrines and strategies must remain adaptable if the Alliance's goals are to be attained, was something the legislator was not unaware of; neither the Basic Law nor the assenting acts to the Treaties mentioned suggest that acts of the Federal Government in the context of the Alliance system such as the one impugned by the petitioner here require special statutory empowerment for this reason. The petitioner has not asserted that the Federal Government associated aggressive intentions with its assent declaration and that for that reason the declaration not only contravened Art. 26(1), first sentence, Basic Law but also exceeded the allowed discretion of the assenting acts mentioned; nor is there any basis to believe so. Beyond those legal limits, however, it is up to the foreign policy and defence policy powers of assessment and action of the executive to assess those situations, developments and risks and take decisions. It need not be gone into here whether and to what extent the legislator could, having regard to Art. 20(2) Basic Law, impose special normative conditions on the executive for such assessments and decisions; it has not done so in the present context.
In particular, it does not overstep the constitutional limits on this power of assessment by the executive for the Federal Government not to share the petitioners' assumption that the alleged qualitatively new strategic dimension of the weapon systems at issue and the allegedly necessary computer-controlled and thus fault-prone warning systems will considerably increase the risk of a pre-emptive Soviet nuclear attack or the risk of nuclear war being unleashed by mistake.
On the Federal Government's view, the Soviet Union would, before an intentional pre-emptive strike, have above all to take account of a counter-strike by the Western Alliance; the Soviet Union's measures against this would have to be so extensive that they could not remain concealed from Western intelligence. This means nothing other than that the risk of a Soviet pre-emptive attack on the weapon systems at issue here stationed in the Federal Republic of Germany is not increased, especially since the mobility of these systems makes it impossible for them all to be knocked out by a surprise attack. This assessment does not display any constitutional shortcoming; nor does it contravene the legal commitments arising out of the Alliance Treaty.
The same applies to the Federal Government's view that the technical characteristics of the weapon systems at issue increase their deterrent effect and, for that reason, do not lower the threshold for nuclear war, and its view on the question whether through the stationing the Alliance secures the capacity for a "take-out" or "crippling" strike against the Soviet Union. The indication by the Federal Minister for Defence in the oral proceedings that the Alliance was not interested in "fighting out" a conflict but in settling it as quickly as possible by political means, and therefore had an interest in maintaining the possibility of communicating with the opponent's leadership, makes it impossible to complain that this assessment is constitutionally faulty.
The same is true of the Federal Government's view that a "war by mistake" will not come about because of fault-prone technical systems. To date mistakes in technical systems have not led to critical situations or even serious preparations for the use of nuclear weapons. There are, on this view, not the slightest bases for assuming that it is planned either in NATO countries or the Soviet Union to leave the ultimate decision on use of nuclear weapons to a computer-controlled automatic system. Agreements between the Soviet Union and the United States of America had served to avert the outbreak of war by mistake. No constitutional shortcomings can be found in this assessment; whether it is in other respects correct or whether other assessments are also possible is not something that the Federal Constitutional Court has to come to findings about.
A major change to the Alliance programme to which the legislator has assented by acceding to the Alliance system is not brought about because, as the petitioner thinks, the Federal Government has through the assent impugned brought about a situation in which the President of the United States of America could make federal territory into the starting point for military reprisals against the Soviet Union, if a Soviet attack on the United States of America in the territory described in Art. 6 of the North Atlantic Treaty took place: according to the petitioner, this removes powers from the Federal Government, the Bundestag and the Bundesrat and hands them over to an organ of a foreign State, which could in this way bring about the actual preconditions for the existence of a state of defence within the meaning of Art. 115 a Basic Law and thus also force upon the Federal Republic of Germany the decision in the Alliance case to support the Treaty partners with military means.
The legislator, in assenting to the Federal Republic of Germany's accession to the Alliance system, was just as aware of the possibility that such a factual situation could arise both in regard to the Presence Convention and the presence of American forces on Federal territory based on it (on which see bb below) as was the constitutional legislator in making the 1968 amendment which introduced Art. 115 a into the Basic Law (BGBl I p.709). It is indeed a central part of the North Atlantic Treaty (Art. 5(1)) and of the Treaty on the Western European Union (Art.V) that an armed attack against one of the Alliance partners is to be treated as an attack on them all and set off the obligation of assistance. Irrespective of this, there is no reason to doubt that those involved in such a conflict, even and especially in connection with nuclear weapons, will do everything in order to limit it; this is in line with the purpose of the Alliance. The Federal Government's assent to the stationing of new weapons on the territory of the Federal Republic of Germany has not changed anything here. The legal possibility for the Federal Republic of Germany to assess whether an attack is taking place and what measures it regards as "necessary" in such a case in order to restore the security of the North Atlantic area and maintain it is not curtailed thereby; nor are the competences given the Bundestag by Art. 115 a Basic Law. The Federal Republic of Germany's real alternatives in decision may be very limited in such a position; but this is not because its legal possibilities have been curtailed but because of the actual situation, and as a consequence of the circumstance that, as the very meaning of the Presence Convention shows, military defence measures of one treaty partner if attacked may also be taken from the territory of the Federal Republic of Germany. It cannot therefore be found that the assent declaration impugned is to that extent a major change in the Alliance programme.
Nor can anything be changed in this outcome by the view that the assent impugned de facto puts the United States of America in a position to employ the weapon systems at issue from the territory of the Federal Republic of Germany in a fashion contrary to international law or alien to the purposes of the Alliance, for instance, against attacks not involving the area of geographical application of the Alliance system. Apart from the question of how far such an assumption could be deprived of force by the act giving empowerment to assent of whose absence the petitioner complains, it was incumbent on the Federal Government to estimate whether a federal partner would keep to international law and to the legal limits of the Alliance and the assent to be taken within its framework. By assenting to the stationing, the Federal Government obviously assessed this question in the affirmative. The same was done by the Bundestag when in 1955 it assented to the Treaty system in awareness of the fact that tactical nuclear weapons were stored on the territory of the Federal Republic of Germany. The petitioner has not brought forward any facts that make this assessment seem constitutionally defective; nor can any such facts be so far found otherwise. The Federal Government was able here to base itself on the conduct over long years of the Alliance and the Alliance partners, which did not urgently and openly suggest a contrary outcome to the assessment. In the European area no armed interventions have been made by the Alliance and the parties to it against any State, whether with conventional or nuclear weapons. The fact that, in the context of treaty relationships in international law, those involved are also in a position to act contrary to the treaty can hardly ever be excluded as a simple factual possibility. If the Basic Law were to forbid the bringing about of such situations in order to prevent any possible infringement of international law, then the Federal Republic of Germany would be largely incapable of action in the treaty sphere.
bb)The assent given in the context of the Alliance system to the stationing of the new weapon systems on the territory of the Federal Republic of Germany also keeps within the framework of the empowerment in the assenting act to the Presence Convention, which to that extent is to be seen within the context of the Alliance system.
These weapons are borne by the forces of the United States of America in the Federal Republic of Germany assigned to NATO; the Presence Convention forms a legal basis for their presence in the Federal Republic of Germany. Whether these weapons increase the effective strength of these forces in the sense meant by Art. 1(2) of the Presence Convention may also be left out of account here. For the Federal Government has at any rate given the assent required in such a case by the Presence Convention.
The framework of the empowerment conferred by the assenting Act to the Presence Convention has been maintained. In detail, this follows from the same considerations as set forth for the assenting Act to the North Atlantic Treaty. It is the stationing of allied troops and their weapons on Federal territory that is indeed the essential meaning and purpose of the Presence Convention.
cc)In other respects, it should be pointed out that the legislator in amending the Constitution, in particular by incorporating Art. 80a(3) in the Basic Law by Act of 24 June 1968 (BGBl. I p.709) and also previously in incorporating Art. 45 a (old version) and 87 a (old version) by Act of 19 March 1956 (BGBl. I p.111), in an awareness of the Federal Republic of Germany's membership of the Alliance system, saw no reason to incorporate into the Basic Law a special reservation regarding enactment to which assent declarations of the type impugned here would be subject. It was at the time fully aware of the stationing of nuclear-equipped forces of the United States of America in the Federal Republic of Germany under the Alliance system, and of the fundamental nature of the arrangements for the decision-making structures and lines of command within the Alliance. The fact that these regulations were in detail subject to secrecy and continually updated is brought about by the need for the most effective possible defence; insofar as they have been brought before the Federal Constitutional Court by the petitioner in the oral hearings, they do not show any major change to the integration programme to which the legislator assented when the Federal Republic of Germany acceded to the Alliance system.
The assent to the installation of nuclear intermediate-range weapons on the territory of the Federal Republic of Germany does not contravene rights of the Bundestag because it amounted to the taking of a decision of importance for the State as a whole and in that sense a political guiding decision. The fact that the giving of this assent was an essential act for the Federal Republic of Germany as a whole can, in view of the explicitly regulated arrangements for competences in the area of foreign affairs, not be a basis for a special legislative power of the Bundestag. Nor does it follow - in paramountcy over these regulations - from the democracy principle laid down in the Basic Law. Under the parliamentary democratic system of government which the Basic Law has constituted, the Government is equally democratically legitimated both institutionally and functionally (BVerfGE 49, 89 [124 ff.]); it further possesses personal democratic legitimation and is subject to parliamentary democratic control.
The Basic Law knows neither a total reservation as to enactment nor a rule of competence stating that all "objectively important" decisions must be taken by the legislator. Art. 59(2), first sentence, and Art. 24(1) Basic Law at any rate contain, for the areas they cover, a regulation that is exhaustive to that extent, alongside which an obligation for legislation cannot follow autonomously from the viewpoint of essentialness, for instance having regard to the substantively political scope of a decision. Again, the idea of the "guarantee of correctness" which parliamentary procedure offers because of the comparative transparency of the decision-making processes cannot bring about a change in the distribution of powers in favour of parliament explicitly made by the Basic Law.
The assent to the installation of intermediate-range missiles of the United States of America in the Federal Republic of Germany therefore did not, from the viewpoint of the principle of democracy or of the importance of this act for the State as a whole, require prior empowerment from the Bundestag in the form of an act.
This does not mean that "objectively important" decisions can be taken "behind the Bundestag's back". The Bundestag can exercise its rights of questioning, debate and resolution, use its controlling and budgetary powers and thus influence the Government's decisions, or by electing a new Federal Chancellor make the Government fall (Art. 67(1), first sentence, Basic Law). Moreover, the Federal Government was in the specific case frequently involved with the re-armament question, including assent to stationing the weapon systems at issue, most recently on 22 November 1983, and explicitly approved the Federal Government's intended assent declaration, which it has since given.
It had not been brought up for consideration by the parties, nor is it to be decided here, whether the weapon systems of the United States of America at issue could have been installed in the territory of the Federal Republic of Germany even without its agreement, so that in terms of international law assent by the Federal Government would not then come into it, and it would be questionable whether an assent nevertheless given would have been capable of infringing or prejudicing rights of the Bundestag within the meaning of para. 64(1) BVerfGG. It accordingly need not be considered whether Art. 4(2), first sentence, of the Germany Treaty offered a legal basis for this in international law. For neither the planning for installation of the weapon systems at issue nor the Brussels Resolution of the Foreign and Defence Ministers of the NATO countries of 12 December 1979 and its implementation in the Federal Republic of Germany took place in virtue of the "rights heretofore exercised or held by the Three Powers in relation to the stationing of forces in Germany, and to be retained by them", in order to be able to exercise the "rights and responsibilities in relation to Berlin and to Germany as a whole, including the reunification of Germany and a peace settlement by treaty" reserved in Art. 2(1) of the Germany Treaty. From the communiqué on the meeting of Foreign and Defence Ministers of the NATO countries on 12 December 1979 in Brussels, it emerges unambiguously that at any rate the stationing of the weapon systems forming the object of that meeting in the Federal Republic of Germany was not coming about in consequence of reserved rights of the Three Powers.
The petitioners' motion to take evidence was not to be allowed. The factual assertions listed in nos. 1-5 of this motion are, insofar as they are not anyway undisputed, not relevant to the decision, even were their accuracy to be assumed. The assertions contained in nos. 6-7 relate by their meaning to political value judgments, the correctness of which cannot be established by taking the evidence offered. What lies within the government's power of assessment may not be transferred, contrary to the principles of the division of powers, to the decisional sphere of the judiciary power via the taking of evidence.
This decision has been taken by 7 votes to 1.
Judges: Zeidler, Rinck, Dr.Dr.h.c. Niebler, Steinberger, Träger, Mahrenholz, Böckenförde, Klein
Dissenting Opinion of Judge Mahrenholz on the Judgment of 18 December 1984 - 2 BvE 13/83 -
In my view the Federal Government's assent to stationing the Pershing and Cruise Missiles required an Act, in pursuance of both Art. 24(1) Basic Law and Art. 59(2), first sentence, Basic Law.
Art. 24(1) Basic Law requires an Act for the transferring of a sovereign power. According to the Senate's case law to date, it was possible only under strict conditions to allow, arising out of a treaty transferring sovereign power to an international institution, also the - later - transfer of sovereign powers mentioned separately neither in the treaty nor in the Assenting Act (cf. BVerfGE 58.1). In its present decision, the Senate is abandoning these criteria in a manner no longer compatible with Art. 24(1) Basic Law (see II. below). Insofar as the Senate, in assessing the question whether the assent is by Art. 59(2) Basic Law subject to a requirement of enactment, arrives by referring to the principle of division of powers, at the finding that Art. 59(2) Basic Law is to be applied only to international treaties but not to unilateral acts in international law, further-reaching consideration would have been necessary of whether the assent declaration need not have been part of a treaty within the meaning of Art. 59(2) Basic Law. Moreover, the principle of division of powers in Art. 20(2) Basic Law cannot be raised into a criterion for interpreting Art. 59(2) Basic Law, since this provision itself belongs to the provisions in the Basic Law that provide positive norms for the division of powers. Art. 59(2) Basic Law is a special manifestation of the general reservation as to enactment, according to which the legislator has to "take all essential decisions himself" (cf. BVerfGE 49, 89 [126 f.]). This significance of Art. 59(2) Basic Law called for consideration in the specific case too (see III. below).
Taking it, as does the judgment, that the North Atlantic Pact is an international institution, which is not uncontroversial, and following the Senate also to the effect that the President of the United States of America can, insofar as he takes a release decision for the employment of the missiles in the context of the NATO Alliance, be regarded as a special organ of the Alliance, the Assenting Act to that Alliance has still not empowered the Federal Government to assent to the stationing of the new American intermediate-range missiles.
The Senate's construction amounts to saying that the legislator, through the Assenting Acts to the North Atlantic Treaty and the Presence Convention in 1955, authorized the Federal Government for the unforeseeable future to convey to the U.S.A., to any extent for the government to determine, the right to station and to employ weapons. This applies to all conceivable political situations, although they are not foreseeable in terms of their variety and their hazardousness for the existence of the German people. It also applies to every type of weapon, including those whose nature was not even conceivable at the time (rockets with several warheads that steer themselves to the target, or with flight times that leave practically no warning time; neutron weapons; satellite weapons and anti-satellite weapons; binary chemical weapons). The authorization also covers the acceptance of a possibly increased risk of atomic war, which may in an individual case be involved in laying claim to this empowerment. This sort of empowerment is neither contained in the Assenting Act, nor would the Assenting Act, should it contain an empowerment of such a nature, be compatible with Art. 24(1) Basic Law.
1. Art. 24 Basic Law requires strictness of form and strict application. Inclarities based on imprecise statutory empowerments under Art. 80(1) Basic Law can be corrected; in the international sphere, by contrast, they are a burden on relations between the Federal Republic and the partner concerned. A correction, or even the wish for one, would have a disruptive effect on the structure of those relations (see Tomuschat in Bonner Kommentar, Art. 24, no. 32).
According to the view laid down in the Senate's first Eurocontrol decision, the transfer of sovereign powers means an interference in a constitutionally established competence, and therefore substantively a constitutional amendment. Sovereign powers are transferred to institutions whose legal system, policy formation and forms of action are not directly subject to the Basic Law and therefore not to the decisive influence of the German legislator either, but may very well themselves, according to their powers, have effects in the German legal system in sovereign fashion, with direct effect for those subject to the law. The weightiness of these aspects requires a strict interpretation of the reservation as to enactment in Art. 24(1) Basic Law (see BVerfGE 58, 1 [35 f.]). In that ruling the Senate also took account of the circumstance that the setting up of international institutions may be associated with an integration programme in the course of which a number of individual implementing acts are required in order to bring about the position aimed at in the foundation treaty. Special acts for such implementing steps can however be dispensed with only where the foundation treaty itself, assented to by an Act, has already adequately definitely normed the future course of implementation (see loc. cit., p. 37).
If the Senate now finds that for interpreting Art. 24 Basic Law the specific nature of the factual area regulated by the foundation treaty and the practicability of Art. 24(1) Basic Law in the international sphere come in, then it fails to do justice to the meaning of Art. 24(1) Basic Law. Provisions as to form are protective provisions and therefore resist attempts to interpret them from the viewpoint of practicability in the international sphere. This must apply to an enhanced extent to formal provisions protecting powers of the legislator, and a fortiori where the matter is one of an alienation of sovereignty and substantively an amendment of the constitution.
2. The Senate admits that the North Atlantic Pact contains no provisions explicitly granting NATO powers of the content at issue. But the Alliance Treaty equally lacks an integration programme, regarded by the Senate as indispensable, able to set going an integration process, such as can be derived from, say, the Eurocontrol Convention or the Treaty establishing the EEC. The texts of the North Atlantic Pact adduced to this end in the judgement serve only, considered closely, to bring about to the best possible effect the collective nature of the defence alliance, but nothing more. An integration programme cannot be derived from them.
In particular, the assistance clause in Art. 5 cannot be regarded as an integration programme or part of one, if only because the article does not, by contrast with Art. V of the WEU Treaty, oblige military assistance but instead, according to the American view which to that extent is decisive, makes one's own security position decisive for the question of the duty of assistance (cf. K. Ipsen, Rechtsgrundlagen und Institutionalisierung der atlantisch-westeuropäischen Verteidigung, 1969, p. 44 ff.): measures pursuant to Art. 5 may, on the view of the U.S. Senate Commitee for Foreign Affairs, "include everything, from diplomatic protest up to the hardest forms of pressure" (translated from K. Ipsen, op. cit. p. 45). Accordingly, national sovereignty prevails in the decision as to the nature of the duty of assistance.
The Treaty does not even contain an explicit proclamation of an intention of integration, as can be taken at any rate from Art. VIII(1) of the WEU Treaty. The difference between the North Atlantic Pact and an integration-orientated military alliance emerges still more clearly when the Pact is compared with the Treaty establishing the European Defence Community (EDC) (BVerfGE 1954, II p. 342). The preamble to the EDC Treaty considers that the best means to secure peace lies in thoroughly integrating personnel and materiel, insofar as compatible with military requirements, in joint defence forces in the context of a supranational European organization.
This programme was also to be put into practice by the EDC Treaty: Art. 9 lays down the rule that the forces are to be those of the Community, not of individual States; the following provisions allow only sharply defined exceptions. The Treaty further provides powers for Community organs to intervene in the sovereign sphere of Member States.
By contrast, the Council, pursuant to Art. 9 of the North Atlantic Treaty, and also the Defence Committee mentioned there, are confined to recommendations and to the consideration of questions affecting the implementation of the Treaty. They are coordination bodies, even where their recommendations are directed at bringing about integrative structures of the military alliance (on the contrast between NATO and the EDC cf. Arndt, Der Kampf um den Wehrbeitrag, Ergänzungsband 1958, p. 435 f.).
Even the so-called protective clause in Art. 11(1) at least makes it hard to follow the Senate's view that an empowerment of the type supposed by the Senate can be derived from provisions of the Treaty. Art. 11(1) supposes also the implementation of the Pact's provisions, that is also the observance of Treaty obligations, in compliance with the respective constitutional procedures. The goal and purpose of the Treaty on the one hand and its implementing measures on the other are accordingly to be constitutionally judged independently of each other. Accordingly, the objective of the Treaty cannot be assigned the legitimizing force of the constitutional evaluation of treaty implementation measures attributed to it in the judgment. The fact that there is no adequate integration element inherent in the NATO Treaty itself corresponds, moreover, to the view presented in a written statement by the Federal Government, which is to be regarded as particularly expert in this case, and the prevailing doctrine (cf. Stern, Das Staatsrecht der Bundesrepublik Deutschland, Vol. II, 1980 p. 1421 f.).
What has been aimed at in terms of integration within NATO, and in part realized, is based on two recommendations of the North Atlantic Council of 1950 and 1954 (texts in K. Ipsen op. cit. 136 and 145 ff.). In peace time there is only the operational planning of SACEUR; he has no power of command over the forces assigned to NATO, which can at any time be removed from that position again by national decision. Only in times of tension, at latest from the start of military action onward, do the allied command posts also take over operational leadership of the forces, the so-called operational command. This command too covers, out of the four command areas in the middle and higher command, only the operational sphere (G 3), while such an important sphere as logistics (G 4) is not integrated, even in a case of tension (on this cf. K. Ipsen, op. cit. p. 139 ff., 177).
Though the recommendations were before the legislator, they were not an object of the ratification procedure; the same was true of Section IV of the Final Act of the London Conference, mentioned in the judgment. However high their integrative value is to be assessed, for a consideration whether an Act as required by Art. 24(1) Basic Law is present they must remain out of consideration on formal grounds alone. But that is decisive.
3. The Senate seeks support from the legal figure of the "comparatively open provisions" of the North Atlantic Treaty. The criterion applied of "the special nature of the field" shows its dominance in the interpretation of Art. 24(1) Basic Law: the field is said to be characterized by a dynamics; it is said to be important to make possible rapid, flexible measures that can take account of both continual changes in the political and strategic environment of the Alliance partners and the constant change in other security policy conditions, like the development of weapons technology. This position and objective, it is said, can be done justice to only by "open" provisions.
But these provisions are the programmatic principles of an integration process which in the Senate's view is embodied in the NATO Treaty. But if these programatic principles are indeed open, then they may change in nature. They lack definiteness of content. The adequate definiteness of the integration process embodied in the foundation treaty was the condition in the Eurocontrol decision for transferring a power without specific involvement of the legislator. In the judgment, it is replaced by wide-ranging empowerments which the Senate rightly terms a framework of empowerment. The judgment has thereby separated itself from the bases of the Eurocontrol decision, even though it appeals to it.
This is true also in respect of the nature of the sovereign power transferred. In that decision, the Senate, in justifying its view, explicitly stressed the narrowly limited technical and instrumental nature of the power: it was a power to collect charges supplementing a similar power already transferred by the Eurocontrol Convention (BVerfGE 58, 1 ). The power now transferred, making possible the use of missiles from the territory of the Federal Republic, has a dimension not comparable with that power.
The openness of the provisions means that for the Senate it is enough for an integration programme to be embodied in the treaty system as possible. This confirms the indefiniteness of content of the empowerment. Open norms are open for diverse programmes; they may today concern assent to the stationing of Pershing-2 rockets, and tomorrow include the stationing of neutron bombs and later grant the right to prepare for extensive preventive destruction on the territory of the Federal Republic by allied forces, in order when it comes to defence to delay the advance of Warsaw Pact troops. If one regards anything whatever that could be summarized under the concept of jointly developed strategy, to be deployed jointly in defence, as covered by open provisions, then the conceptual counterpoint to the requirements of the integration process, as made specific in the first Eurocontrol decision in the reference to the requirement for strict interpretation of Art. 24(1) Basic Law, is abandoned. If the Senate majority is so open in applying Art. 24(1) Basic Law to the specific nature of the field, then in considering a change in the programme the only criterion left is "the basic orientation of the alliance system as a defence alliance, embodied in the Treaty bases mentioned". The constitutional content of Art. 24(1) Basic Law has well nigh evaporated under the pressure of an end/means relationship: not the Constitution, but the object of the Treaty, is to decide how open provisions ought to be that are to serve as the empowerment basis for the transfer of sovereign powers.
Accordingly, in the Senate's view a change in the programme of constitutional relevance, requiring a renewed enactment pursuant to Art. 24(1) Basic Law, does not come into consideration even supposing the qualitatively new strategic dimension of the weapon systems at issue when installed on the territory of the Federal Republic of Germany, assumed by the petitioner, to be accurate. A change in the programme is accordingly present only if the Federal Government combines aggressive intentions with its assent. The great room for manoeuvre in terms of power of assessment and action opened up by this empowerment framework for the Executive even causes the Senate to ask whether the Legislature could, having regard to the principle of division of powers in Art. 20(2) Basic Law, impose particular normative obligations on the Executive. This step goes beyond the mere introduction of statutory empowerment frameworks in favour of the Executive within the sphere of Art. 24 Basic Law, within which the latter can transfer sovereign powers of the Federal Republic. For here by appealing to the principle of division of powers the legislator's right to operate in his own field and to draw such empowerment frameworks more narrowly or more broadly as he sees fit is being called into question.
Until the first Eurocontrol decision, doctrine assumed that the legislature itself had to take the decision whether and to what extent sovereign powers were to be transferred (cf. Maunz in Maunz/Dürig/Herzog/Scholz, Grundgesetz, Art. 24 No. 14; Tomuschat, op. cit., Art. 24 No. 32). The Eurocontrol decision already loosened the link between the act of transfer and the formal enactment itself, even though on sharply delimited preconditions. The judgment is now beginning a process of eroding the reservation as to enactment in Art. 24(1) Basic Law.
Apart from the reservation as to enactment for the rearrangement of Federal territory, Art. 24(1) Basic Law contains the sole reservation as to enactment in favour of the ordinary legislator, not dispensable even in an emergency case (Art. 115 e (2) Basic Law). The Senate replaces this in the judgment by empowerment norms whose openness leaves behind even those criteria that Art. 80(1), second sentence, Basic Law sets for empowerments to make orders that are operative only domestically. This makes clear the shift of emphasis in the constitutional structure that the judgment makes in favour of the Executive.
4. Even were one, with the Senate, to regard the provisions of the NATO Treaty, open as they are, as an integration programme and therefore as an empowerment norm for the Federal Government in the sense of the judgment, for a closer definition of the content of the programme the resolve of the alliance partners affirmed in the Preamble to the North Atlantic Treaty would have to be included, as follows:
to safeguard the freedom, common heritage and civilization of their peoples, founded on the principles of democracy, individual liberty and the rule of law.
It is from these common aspects that the resolution on joint defence confirmed only subsequently to this text and put forward by the Senate in favour of its view derives. But then the qualitatively new strategic dimension assumed by the Senate to be irrelevant for a constitutional assessment, which the petitioners see in the stationing of the weapons, takes on constitutional relevance. For the objective cited is to be included in the defence objective of the Pact regarded by the Senate as decisive. It extends, following the Federal Republic's accession, to the people of this State too, and must therefore be for the Federal Republic too an objective attainable in military conflict, that is, the Federal Republic may not from the military point of view be solely the main battlefield. In a political view it must be both a subject and also meaningfully an object of joint defence efforts.
The geo-strategic position of Germany in its two parts was something that the legislator of the Assenting Acts of 1955 was aware of, including the grave consequences deriving therefrom in the event of a need for defence. But particularly in the light of the inescapability of our geo-strategic position, the meaning cannot be taken from the Assenting Acts that they empower the government de facto to every sort of integration effort, whether or not the possibility or indeed the likelihood of war and therefore a danger to the existence of the German people increase.
It is not up to the Federal Constitutional Court to give a judgment decisive for the installation of the missile. The risk aspects of installation ought however to have been considered by the Senate in respect of whether the possible increases in war risk that might result from stationing such rockets, presented by the petitioners or to be investigated by the Court, had only a minimal and therefore negligible foundation, that is, were a residual risk within the meaning of the Kalkar decision (cf. BVerfGE 49, 89 [137 f., 141 ff.]), or whether they were of such weight as to suggest a serious possibility that the risk of war would increase. Then there would, in the sense of the judgment, be a change in programme - speaking in the terms of the first Eurocontrol decision, its extension (BVerfGE 58, 1 ) - that would no longer be covered by the empowerment framework and would have the consequence that the legislator ought to have decided as to assent.
To clarify what should in this context inter alia have been made clear, an - extremely abbreviated - presentation of two problem areas may help:
a) the capability of the new missiles to hit so-called hardened military targets precisely, limiting collateral damage, might lower the threshold for first use of nuclear weapons. For the knocking out of command, control and communication structures, which is what is primarily striven for today in the event of war, would hit the adversary at his most sensitive spot, and could accordingly be regarded as likely to shorten the war and to that extent as sparing a hardly predictable number of human lives. These are sufficient reasons to take seriously the official designation of the targets of these rockets as "time urgent targets " (U.S Defence Secretary Weinberger, according to the 1984 Annual Report to Congress, cited by the petitioner). On the other hand such use would with great probability be followed, should it be the first use of nuclear weapons, by a counterstrike by those aimed at. Perhaps for this reason, President Carter's Defence Secretary Brown, in his 1980 Annual Report to Congress, declared that these missiles would bring the risk of escalation to a higher level of conflict with them (Europa-Archiv 1980, D 449).
There could then even from the stationing of the new weapons be associated additional risk to the Federal Republic, because it could to a special extent offer a challenge to a preventive strike (cf. e.g. C.F. v. Weizsäcker, Der bedrohte Frieden, Politische Aufsätze, 1983, p. 508 f., 511, 527).
The problem of installation of the missiles could, from a principled point of view, be presented as part of a process in which every rearmament could be regarded as forearming against the adversary's rearmament. And the de facto development has also taken that course following the implementation of the NATO rearmament decision. In the course of this process, it would become steadily harder to control the technologically steadily more perfected armaments - something that in the meantime makes "confidence-building measures" necessary - but the possibility of using them would become increasingly more expedient and more precise ("selective") and therefore more tempting. According to the petitioners' presentation, accordingly, in the United States a process of rethinking has begun, towards a new strategy that weakens the doctrine of deterrence at least by regarding military superiority of the West as necessary in order to be able to actually wage and win a war (counter-force). From a political view, however, a war that those responsible regard as winnable is more likely to become a reality.
b) The Federal Constitutional Court ought also to have evaluated the topic of "war by mistake" as an aspect of possible legislative competence to give assent to installation of the missiles. According to the petitioners' presentation, based on official American sources, there have already been some 150 technically caused false alarms, including one that caused the decisive officers of the NATO forces to wonder for longer than 6 minutes whether a Soviet attack had begun. The point here is not whether computer-controlled automatic mechanisms are being left the ultimate decision on the use of nuclear weapons, but in my view more whether the person deciding on use of the weapons has at, in respect of missiles which like the Pershing-2 cover the intermediate range involved in a matter of minutes, an alternative to the decision required by the data transmitted. The possibility of an "unintentional outbreak of hostilities or one caused by an 'operational accident'" was also pointed to by U.S. Defence Secretary Weinberger (1983 Annual Report to Congress; Europa-Archiv 1983, Dokumente, D 439).
c) If the examination had given one or more indications that the greater protection aimed at by modern weapons is necessarily at the same time combined with an increase in the risk of war that has to be taken seriously, then it ought to have been the legislature that took the decision on assent.
5. Recognizing that the function of legislation is indissolubly associated with the Parliament, and accordingly that the principle of division of powers fundamentally prohibits transfer of this function to other organs, in particular those of the Executive power (cf. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 14th ed. 1984, no. 524), then here the Senate's view as to the reservation as to enactment in Art. 24(1) Basic Law cannot be justified on the ground that there was a need, still less a necessity, to free the legislator of the burden of regulating rapidly and constantly changing situations. Both developments in strategic doctrine and lines of development in arms technology are not determined by short-term facts, but are of a long term nature. Thus, the double decision of 1979 too had at least two years of genesis, if one links it to the date of then Federal Chancellor Schmidt's address to the International Institute for Strategic Studies in London in October 1977. Until the ensuing assent given in November 1983, a further four years went by. Soviet superiority in the intermediate range had by 1983 lasted almost two decades. Accordingly it was not part - as the judgment says - of the "special nature of the field" of joint defence by the Alliance partners to assume constant change in the political and strategic environment or in the development of arms technology and techniques that allegedly compelled immediate action.
6. Nor is the Presence Convention any adequate statutory basis within the meaning of Art. 24(1) Basic Law.
It is true that the provisions of Art. 1 of the Convention include the power to improve armaments. In favour of this is the consideration that the effective power of armed forces depends decisively on their armament.
But this armament does not, however, include every instrument of modern weapons technology. In particular the Pershing-2 missiles, whose rapidity of directed use renders them capable against so-called time-urgent targets, are not in any necessary connection with the forces and their armament, since in accordance with modern strategic thinking they are intended in the event of use for crippling strikes against the already mentioned command, control and communication structures in the remote hinterland of the Warsaw Pact. Such weapons of a whole new type are not a modernization of the armament of the forces, but something completely different. Any other view would mean taking Art. 1 as a blanket prescription for the use of any type of weapon from the territory of the Federal Republic that was valid for the purpose of defence as a military or political instrument of the U.S.A. or its partners against the Soviet Union and the Warsaw Pact States, without consideration of the political consequences that stationing could bring about in the frontline area, the battlefield that would be most affected in the event of war, namely the Federal Republic of Germany. The steady and at the same time uncalculable progress of armaments technology and techniques is no justification for as it were fatalistically handing over the power to dispose of the sovereignty of the polity away from the legislator's hands pursuant to Art. 24(1) Basic Law into those of the Federal Government. Here too the case is that in interpreting an international treaty that regulates political relationships of the Federation, particular importance attaches to the political starting position of the Treaty (cf. BVerfGE 4, 157 [168 and headnote 3]).
Besides, these weapons are also raised out of the traditional sphere of weapons modernization in accordance with Art. 1 of the Presence Convention by the explicit indication of the Federal Government that, before stationing on the territory of the Federal Republic, the German Bundestag would have a chance to take a position within the framework of its parliamentary control powers, as it had already done earlier (BTDrucks. 10/487 p. 6 f.; emphasis here).
U.S. Secretary of State Dulles too took new types of weapon development into account in proposing new stationing agreements: in 1957, that is, after ratification of the treaty system at issue, he mentioned as a precondition for the installation of medium-range missiles on the territory of the United States "treaty agreements between the Supreme Allied Commander of Europe and the countries involved, as well as agreements between each of those countries and the U.S.A." (AdG 1957, p. 6802).
The Franco-German exchange of notes on the stationing of French forces following suspension of the assignation of French forces to the Supreme Command of SACEUR (Bulletin der Bundesregierung, 23 December 1966 no. 161, p. 1304 f.) does not say anything to the contrary. Where it states that the weapons of these forces will be notified to the Federal Government annually, then this assurance sticks to the framework, set out above, of Art. 1 of the Presence Convention, in terms of armament and modernization. The exchange of notes may at most be an indication of the fact that the like is in general not subject to assent, and thus does not fall under Art. 1(2) of the Presence Convention, but Art. 1(1). Attributing any more significance to the exchange of notes is prevented even by the report of Deputy Brandt (Berlin) to the Bundestag Committee for Foreign Affairs, according to which the storage of tactical nuclear weapons is not exempt from assent; see Schweisfurth, ArchVR, 1984, p. 211 ff.).
Pursuant to Art. 59(2), first sentence, Basic Law, treaties that regulate the political relationships of the Federation or relate to objects of legislation require assent or the collaboration of the respective body competent for federal legislation, in the form of a Federal Act. The Senate takes the view that this norm of the Basic Law is not applicable to the declaration of assent to stationing and to the transfer of sovereign powers challenged, because it is a unilateral declaration. This is an assessment that I cannot manage to follow.
1. It is already doubtful whether the Federal Government's assent at issue does not instead constitute a part of an international treaty (convincingly here, see Schweisfurth, ArchVR 1984, p. 195-203). This need not be gone into any further here.
2. On the Senate's view, the point of the parliamentary reservation in Art. 59(2) Basic Law is not to let long-term, still less in principle indissoluble ties of an international nature come into being without the assent of the Bundestag. This statement ought to have given the Senate occasion to consider whether the Federal Government's assent declaration mentioned, if as a unilateral declaration it does not fall under the reservation as to enactment, ought at all to have been given otherwise than as part of a treaty. The meaning of Art. 59(2) Basic Law would be missed were the Executive to be able to decide on the scope of the reservation as to enactment by choosing the legal form of its declaration. The assent cannot be counted among the typical law-making unilateral declarations in international law, because as assent it presupposes something already conceptually existent, that is also legally relevant. The objection thereby fails that it is a consequence of this idea that the Federal Government is at all prevented from giving unilateral declarations in international law that have effects domestically.
3. Should assent be constitutionally possible as a unilateral act in international law, then the function of Art. 59(2) Basic Law requires that the reservation as to enactment be extended to it too.
On the Senate's view the division of powers does not allow such extension. It would be a "concentration of political power", it would constitute "interference with central spheres of operation of the Executive", and would run counter to the structure of the division of power, control and responsibility that the Basic Law wishes to see guaranteed.
If the Senate instead tests the sphere of participation by the legislature pursuant to Art. 59(2) Basic Law concretely, it arrives at different findings: the legislator is pursuant to Art. 59(2) Basic Law - for so must the Senate's statement be understood - not at all capable of disputing with the Executive the control of power in foreign affairs. Accordingly, there can be no notion of interference with central spheres of operation of the Executive. Legal scholarship, by contrast, speaks of the danger of "advancing erosion" of the legislator's participatory powers under Art. 59(2) Basic Law (Tomuschat, VVDStRL 36 , p. 60 f.).
One can challenge the method the Senate uses to interpret the principle of division of powers. However important the question of method is, the Senate's indication makes it clear that political risks arising out of the division of powers in the Basic Law are to be put up with. The Senate interprets Art. 59(2) Basic Law in the light of Art. 20(2) Basic Law, without first interpreting Art. 20(2) Basic Law in the light of Art. 59(2) Basic Law. Art. 59(2) Basic Law is itself a means of making positive the Basic Law's principle of division of powers. The scope of this principle can therefore not be determined by some ideally imagined schema of division of powers. If Art. 59(2) Basic Law is to be interpreted, then after the Senate has rightly rejected a rule-exception interpretation, such as still underlay the Court's decision of 29 July 1952 (BVerfGE 1, 372 ), there remains as the decisive criterion of decision the function of the norm. The scope of the reservation as to enactment in the sphere of fundamental rights has at any rate regularly been defined by the Court in terms of its respective protective function for the citizen, lying in the reservation as to enactment.
As far as the reservation as to enactment in Art. 59(2) Basic Law is concerned, insofar as it concerns objects of legislation, the function of this norm requires that there should arise no gap between binding in international law on the one hand and domestic law on the other, that the reservation as to enactment be extended to unilateral acts too.
For the scope of the characteristic feature of the regulation of political relationships, of relevance here, it is similarly the function of Art. 59(2) Basic Law that comes into it. In the judgment of 31 July 1973 on the Basic Treaty (BVerfGE 36, 1) the Court emphasized the viewpoint of political control as decisive for the inclusion of a treaty with a State that is part of Germany (op. cit. p. 17) under the concept of treaty, which is cut to fit treaties with foreign States (cf. Art. 59(1) Basic Law) (op. cit. p. 13). If including this viewpoint makes political control necessary, then the same view must apply if, while the Act belongs to external power, it constitutes not a treaty regulation but a unilateral regulation of political relationships.
According to the Senate's decision of 8 August 1978 (BVerfGE 49, 89 [126 f.]), Art. 59(2), first sentence, Basic Law is a special manifestation of the general reservation as to enactment in the Basic Law, that extends to "all essential decisions". If the Federal Government's assent to the stationing of the forces is such an essential decision of foreign policy that the political control of the legislature is required, then it falls under the reservation as to enactment.
A considerable proportion of legal scholars bring unilateral declarations under Art. 59(2) Basic Law: in general terms, Bernhardt obviously regards this as required in: Bundesverfassungsgericht und Grundgesetz, Vol. II, 1975, p. 163; more cautiously, in the same comprehensive sense, Doehring, VVDStRL 36 (1978), p. 70; for termination, in part generally, in part with cautions or only in the case of certain treaties: Friesenhahn, VVDStRL 16 (1958), p. 70; Baade, Das Verhältnis von Parlament und Regierung im Bereich der auswärtigen Gewalt der Bundesrepublik Deutschland, 1962, p. 121 f., fn. 117; Hienstorfer, Die Auswärtige Gewalt des Deutschen Bundestages, Marburger Dissertation, 1968; Steizig, Die Zuständigkeit des Bundestages für die Kündigung von Staatsverträgen, Dissertation Bonn, 1957; Tomuschat, op. cit., Art. 24, no. 36 for treaties assented to by enactments pursuant to Art. 24(1) Basic Law; for Austria this is already parliamentary practice (Öhlinger, Der völkerrechtliche Vertrag im staatlichen Recht, 1973, p. 376); on a reservation as to a treaty, where this falls under Art. 59(2) Basic Law: Jarass, DÖV 1975, p. 117 ff.; for authors who regard accession to a treaty as a unilateral declaration in international law, this also falls under Art. 59(2) Basic Law: cf. Rojahn in: von Münch (ed.), Grundgesetz-Kommentar, Vol. 2, 2nd ed., 1983, Art. 59 no. 51; Zuleeg in: AK-GG, 1984, vol. 1, Art. 59 no. 79.
To provide a balance, the Senate points to the Bundestag's control powers, in particular the power to elect a chancellor. But the election of a new chancellor neither makes the government's act invalid in international law nor are the Bundesrat's participatory powers thereby satisfied. In particular, neither the parliamentary form of government under the Basic Law nor experience with this constitution suggest an understanding of the relationship of the two political powers to the effect that the choice of a new chancellor ought to be an acknowledgement of individual governmental measures. Political control should be exercised in stable conditions of government. The Constitution makes possible just this linkage of stable conduct of governmental business with the extension of parliamentary competence beyond the extent there was in Weimar. This combination of two powers was, taking a growing distance from the "monism of division of powers" of the constituent period of the constitution, developed further following the enactment of the Basic Law (cf. Art. 45 a, 45 b, 45 c, 87 a(1), 115 a(1), 115 a(2) taken together with Art. 53 a Basic Law).
4. Art. 59(2) Basic Law is to be applied to the assent declaration.
The assent on the one hand transfers to the United States a sovereign power that the U.S. President is empowered to exercise. Accordingly he may, even if he exercises this sovereign power within the framework set for him by the North Atlantic Treaty, involve the Federal Republic in a war that would be particularly existence-threatening to the German people in the two German states.
Secondly, the assent required the form of an enactment because for the foreseeable future it excluded a political solution to the security problem in the sphere of intermediate-range missiles, that is, one by way of negotiation.
Since the Soviet Union let the U.S. know that it would not continue the negotiations in the event of stationing of the intermediate-range missiles, but the Federal Republic is the only country in which Pershing-2 missiles were to be stationed and are indeed being stationed, the Federal Republic was in the unique position of being able decisively to influence the chance for further negotiations at the INF talks in Geneva. The political solution possible through these meant, for the Federal Republic in particular, a seriously to be considered alternative to a weapons-technology security solution, such as installing the missiles constitutes, because this can, given arms technology progress on both sides, always provide new security only in the short term. Nor was the exclusion of negotiations a merely secondary consequence of the assent declaration (on this cf. BVerfGE 1, 372 ); instead it was itself the content of that decision, since the assent to stationing of the missiles ruled out the alternative of a negotiated solution for an indefinite period.
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