- BVerfGE 2, 347 2 BvE 1/52 Port of Kehl
- 30 June 1953
- Dr.Katz, Dr.Fröhlich, Wolff, Dr.Roediger, Dr.Schunck, Dr.Klaas, Henneka, Dr.Leibholz, Dr.Friesenhahn, Dr.Rupp, Dr.Geiger, Dr.Federer
- © Nomos Verlagsgesellschaft
1. Assent by the Federal Government to an agreement by a Land cannot infringe the rights of the Bundestag pursuant to Article 59 (2) Basic Law, at any rate where it is not a treaty with a foreign state within the meaning of Article 32 (3) Basic Law or where, while the Land has concluded a treaty with a foreign state, it has nevertheless acted within its competency.
2. Article 59 (2) Basic Law is applicable only to agreements concluded on behalf of the Federation.
3. Undisclosed agency is not possible in concluding international treaties. Accordingly, there cannot be any "undisclosed treaties".
4. Articles 32 (3) and 59 Basic Law do not refer to agreements with foreign statutory bodies subject exclusively to domestic law.
5. a) Statutory bodies subject to national law cannot ever be intergovernmental institutions within the meaning of Article 24 Basic Law; nor do they become so because according to their statutes their organs are made up of people of different nationalities.
b) Intergovernmental institutions within the meaning of Article 24 Basic Law can be created only by agreements between subjects of international law.
Judgment of the Second Senate of 30 June 1953 - 2 BvE 1/52 -
in the constitutional dispute concerning assent by the Federal Government to the Agreement of 19 October 1951 concluded between Land Baden and the Port Autonome de Strasbourg on joint administration of the Port of Kehl, petitioner: the Parliamentary Group of the Social Democratic Party of Germany, respondent: the Federal Government.
The petitioner's petitions are rejected.
EXTRACT FROM GROUNDS:
A - I
Following the collapse of the German Reich at the end of the Second World War, the town and port of Kehl were initially militarily occupied. The return of the population of Kehl, evacuated in the course of the war, and the use of the port installations by the authorities of Baden and by German enterprises was forbidden. In spring 1946 an order of the Commandant en Chef Français en Allemagne not made known to German government offices nor the German public placed the town and port of Kehl under the administration of the Prefect of the Département Bas-Rhin in Strasbourg, detaching it from the French occupied zone of Germany. De facto the "territoire de Kehl" was thenceforth treated as if it were French territory. The whole port including all enterprises established there was handed over into the receivership of the Director of the Port Autonome de Strasbourg. The transshipment installations in the Port of Kehl including those belonging to the State of Baden were brought together into French companies (SOREMA and SEC). Access to the port area by Germans was banned. Compensation for requisition did not have to be paid for any of the firms established in the Port of Kehl, as was also the case in the town of Kehl. The transfer of the administration of the town and port of Kehl to the Prefect of the French Département of Bas-Rhin, cutting out the occupation authority, indicated prospective annexation of the territory by France.
At the Moscow Conference of Foreign Ministers (March/April 1947) the French Foreign Minister was still calling for Kehl to be annexed to French territory. However, it emerged even then that France could not manage to secure this annexation demand. It failed because of rejection by the other victorious powers in the Second World War.
The Baden Land Government was, long before promulgation of the Basic Law and the establishment of the German Federal institutions, endeavouring to induce the French occupying authorities and the French Government to restore the withheld territory of the town and port of Kehl to Land Baden...(detailed account).
In summer 1949 the French Commissioner for Land Baden conveyed to the President of Baden the desire of the Prefect of the Département Bas-Rhin to negotiate with Land Baden an agreement on the Port of Kehl.
The negotiations; begun in early September 1949, in which the President of Baden took part with his advisers, as did the Prefect of the Départment Bas-Rhin, the Mayor of the City of Strasbourg, the Director of the Port Autonome de Strasbourg and the French Commissioner for Land Baden, did not, despite a rapprochement of views on either side, lead to an outcome. The French demands seemed unacceptable to the German participants in the negotiations, since they still provided for French customs and monetary sovereignty in the Port of Kehl for a definite period.
In spring 1950, at Schloss Umkirch near Freiburg im Breisgau, the President of Baden was handed by the Prefect of the Département Bas-Rhin the so-called "Umkirch Draft" of a port agreement.
Consideration of this draft by the Land Government of Baden in consultation with the Office of the Federal Chancellor led to its rejection. A Baden counter-draft was drawn up and presented to the French occupying authorities, whereby conclusion of an agreement on the Port of Kehl was made dependent on the unrestricted restoration of German sovereignty, in particular customs and monetary sovereignty.
In talks between the President of Baden and the Prefect of the Département Bas-Rhin, the latter declared that in the interest of promoting speedy conclusion of the prospective port agreement the French side was now ready to restore German sovereignty, including customs and monetary sovereignty, in the area of the Port of Kehl by unilateral act. On this occasion there was accord that the port agreement would, because of its provisional nature, be concluded by regional German and French bodies.
The government of Baden kept the Federal Government constantly informed of the state of negotiations aimed at concluding an agreement on the Port of Kehl, wishing to seek its assent to the agreement being concluded pursuant to Article 32 (3) Basic Law. After it had come to the conviction that a satisfactory result to the negotiations had been secured, the Port Agreement was initialled on 25 June 1951.
The Federal Government was informed of the state of affairs by the government of Baden and asked for assent to conclusion of the Agreement. It first of all pointed out some reservations on the initialled version of the Agreement, particularly against Articles 9 and 14 (4) of the Statutes of the proposed statutory body for joint administration of the Port of Kehl.
The Federal Government's suggestions to provide clarification of possible misunderstandings in the interpretation of the Agreement were taken into account in an exchange of letters between the President of Baden and the Director of the Port Autonome de Strasbourg. After the President of Baden had by telegram on 17 October 1951 passed on the information that the desired letters had been exchanged and made a part of the content of the treaty, the Federal Government, making reference to Article 32 (3) Basic Law, gave the government of Baden the desired assent to conclusion of the Agreement on the Port of Kehl.
Subsequently, on the 19 October 1951, the Agreement was signed by the President and Finance Minister on behalf of "Land Baden" and the President of the Administrative Board and the Director on behalf of the "Port Autonome de Strasbourg".
The set of agreements that entered into force with signature consists of the following parts:
1. the agreement between Land Baden and the Port Autonome de Strasbourg, authorized for the purpose, of organization of joint administration of the Port of Kehl,
2. the Statutes of the statutory body proposed under Article 1 of the Agreement on the organization of joint administration of the Port of Kehl,
3. the draft lease agreement between Land Baden and the administration of the Port of Kehl,
4. a list of French enterprises to be allowed provisionally to remain in the Port of Kehl pursuant to Article 7 of the Agreement,
5. the letter of 19 October 1951 from the President of Baden - no. 11 232,
6. the letter of 19 October 1951 from the President of Baden - no.11 233,
7. the letter of 19 October 1951 from the Port Autonome de Strasbourg - no. 1196 bis,
8. the letter of 19 October 1951 from the Port Autonome de Strasbourg - no. 1196...(a German translation of the French text of the Agreement follows).
Referring to Article 93 (1) (1) Basic Law taken together with paras. 13 (5) and 63 ff. of the Federal Constitutional Court Act, the parliamentary group of the Social Democratic Party of Germany appealed to the Federal Constitutional Court against the Federal Government, applying for a declaratory judgment that
1. the Federal Government had, by its assent given on 17 October 1951 to the Agreement on joint administration of the Port of Kehl concluded on 19 October 1951 in Strasbourg between Land Baden and the Port Autonome de Strasbourg, infringed the constitutional rights due to the Bundestag by Article 59 (2), first sentence, and Article 24 (1) of the Basic Law, taken together with Article 77 (1) of the Basic Law,
2. that the agreement regulated the political relations of the Federation and was therefore by Article 59 of the Basic Law null and void...(argumentation in favour of the petitions).
The Federal Government asked for;
claims 1 and 2 of the petition to be declared inadmissible, or alternatively, rejected as unjustified.
Claim no.1 of the petition initiates proceedings pursuant to Article 93 (1) (1) Basic Law, taken together with para. 13 (5) of the Federal Constitutional Court Act. It is founded on the ground that the Federal Government as a highest federal organ had by a measure infringed the Basic Law. According to the petitioner's submissions, there is a constitutional dispute between him and the Federal Government as to the rights and duties of a highest federal organ, namely as to whether assent by the Federal Government to the Agreement on the Port of Kehl had infringed the rights of the Bundestag. The dispute thus relates to the legal relationship between Federal Government and Bundestag as regards involvement of the Bundestag in a particular sovereign act. The resolution of this dispute depends on the interpretation of the Basic Law. The Federal Government is, however, wrong to doubt the admissibility of a form of judgment pursuant to para.67 of the Federal Constitutional Court Act that goes beyond interpretation of the Basic Law. The Federal Constitutional Court has, in proceedings under para.13 (5) of the Federal Constitutional Court Act, not only to interpret the Basic Law but also to decide whether the impugned measure infringes the Basic Law (BVerfGE 1, 208 ff.).
2 - 5 ...(arguments for the admissibility of the first claim).
6. In claim no.2 of the petition, the petitioner asks for a finding that the Agreement on the Port of Kehl regulates the political relationships of the Federation and is therefore null and void by Article 59 Basic Law. This petition is inadmissible. The Agreement between Land Baden and the Port Autonome de Strasbourg impugned by the petitioner in these proceedings is not directly subject to the legal findings of the Federal Constitutional Court. The object of dispute is whether the impugned conduct of the Federal Government infringes the rights of the Bundestag. All that is at stake is this constitutional dispute between two federal organs. The Federal Constitutional Court is therefore not called upon in these proceedings to investigate the whole position of the Agreement on the Port of Kehl from all viewpoints of domestic and international law. The question whether a perhaps inadmissible agreement by a Land is valid in domestic law or binds that Land externally in international law must therefore be left undecided.
1. In his petition the petitioner clearly indicated the Federal Government's "assent" to the Agreement on the Port of Kehl as the measure he complains of. It has thus objectively demarcated the object of the proceedings. This demarcation was also emphatically expressed in the presentation of the case by his attorney in the oral proceedings, so that reinterpretation of the petition is not possible. The Federal Constitutional Court is bound by this demarcation of the matter at issue; for by para.64 (1) (2) of the Federal Constitutional Court Act the object at dispute in proceedings is determined by the act or omission mentioned in the petition and by the indication of the provision of the Basic Law allegedly infringed by the impugned act or omission. The Court can therefore in the present case only decide whether the Federal Government has infringed the Bundestag's rights by the declaration of assent complained of - but not through any other act, still less omission. Whether in other respects the Federal Government's conduct has infringed the Basic Law though without infringing the Bundestag's rights cannot be the object of the findings of judgement in these proceedings.
2. In judging the object at issue before the Court the decisive point is whether assent given under reference to Article 32 (3) Basic Law by the Federal Government to an agreement by a Land can at all infringe or prejudice the rights of the Bundestag. The rights infringed are indicated by the petitioner as the competences conferred on the Bundestag by Article 24 (1) Basic Law and Article 59 (2) Basic Law to collaborate in the conclusion of international treaties. Only if these have been infringed or directly prejudiced the petitioner's request can it be justified.
Infringement of these rights through assent by the Federal Government to an agreement by a Land can definitely be ruled out in cases where the agreement is not a treaty by a Land with a foreign state within the meaning of Article 32 (3) Basic Law or where, while a Land has concluded an agreement with a foreign country, it has acted within its powers. The assertion that the Bundestag's rights have been infringed through the Federal Government's assent pursuant to Article 32 (3) Basic Law can only mean that the Bundestag was competent to collaborate in arriving at the decision leading to conclusion of the agreement, and had been passed over. Accordingly it is directly a dispute as to how, in the relationship between Federal Government and Bundestag with regard to the exercise of treaty powers, the competences have been allocated by the Basic Law. Indirectly, the dispute also involves a difference of opinion as to the demarcation of competences between Federation and Länder. For it is claimed that what has been done here by Baden with the assent of the Federal Government ought only to have been done through the competent Federal organs on behalf of the Federation, for which collaboration by the Bundestag would have been necessary. But if the agreement is one by a Land with a contractual partner which is not a foreign state within the meaning of Article 32 (3) Basic Law, then the rights of the Bundestag cannot have been infringed, if only because, if this agreement had been concluded by the competent federal organs then participation by the Bundestag, pursuant to Article 59 (2) Basic Law, would not have been necessary even in such a case. If, on the other hand the agreement is one by a Land with a foreign State, then the Land that secured the Federal Government's assent was, according to Federal constitutional law in force, entitled vis-à-vis the Federation to conclude the agreement as long as it kept within the limits of its competence. Since the Basic Law does not provide for participation by the Bundestag in the conclusion of agreements by the Länder with foreign States, infringement of the Bundestag's rights through the Federal Government's assent is not conceivable in that case either.
It must therefore be considered whether the Agreement on the Port of Kehl was concluded with a foreign State and if so whether Baden acted within the limits of its competence as a Land. How the legal position ought to be assessed had the Land exceeded its competence with the Federal Government's assent need not be discussed here, since, as will be explained later, this condition is not met here.
3. By Article 32 (3) Basic Law Länder, in so far as they have power to legislate, may, with the consent of the Federal Government, conclude treaties with foreign states. This provision concerns only the distinction between regulation under Land law and regulation under Federal law and does not, for instance, seek to bring legislation of the Länder into opposition to the Länder administration. It follows that the Länder are also empowered to conclude agreements in the area of the Länder administration. However, even in the case of purely administrative agreements they require the assent of the Federal Government.
The assent given pursuant to Article 32 (3) Basic Law, while it does refer to involvement of a Land in an external area, in no way represents any such involvement of the Federal Government. It is an act of government in the sense of the guidance of affairs of State, in which as far as the Federal Government is concerned it is a government matter vis-à-vis the Land but not vis-à-vis a foreign country. The Federal Government has, in deciding whether it is to give its assent, to be guided by the well-considered interests of the Federation, it is, in its decision exercising preventive Federal supervision, to prevent agreements by Länder conflicting with Federal interests. Involvement of the legislative organs of the Federation, specifically the Bundestag, is not however provided for in proceedings pursuant to Article 32 (3) Basic Law.
The Weimar Constitution of the Reich called in Article 78 (2) on agreements by Länder with foreign States for assent "of the Reich". It was disputed who was to give this assent reserved to the Reich. Prevailing doctrine and practice of the State decided in favour of the competence of the Reich government, since the giving of assent was an act of the executive power for which collaboration of the legislative organs pursuant to Article 45 (3) of the Weimar Constitution was not necessary.
This view is the line taken by the tenor of the Basic Law. Article 32 (3) Basic Law rules that the Federal Government is competent to give assent. This is an act of governance, which is reserved to the Federal Government. The giving of assent does not enter into the sphere of representation of the Federation in international law, which is incumbent on the Federal President (Article 59 (1) Basic Law).
There is no need to go into whether the giving of assent required by Article 32 (3) Basic Law is the act that equips the Land with the legitimation in international law to conclude a particular agreement with a foreign country in its own name. The assent at any rate means a "nihil obstat" from the viewpoint of the Federal interest. Within the State, it is the precondition for a Land agreement to be implementable. In international legal transactions it might be of significance insofar as it could create the legal evidence that the Land concluding the agreement had in so doing kept within the limits of its objective competence. It follows that by giving such assent pursuant to Article 32 (3) Basic Law the Federal Government cannot be interfering with, infringing upon or directly prejudicing rights of the Bundestag where the Land was competent to conclude the agreement to which assent has been given.
An agreement by a Land to which the Federal Government has given assent does not through that assent become an agreement of the Federation within the meaning of Article 59 (2) Basic Law and therefore dependent even indirectly on assent by the Bundestag and Bundesrat. Article 59 (2) Basic Law starts formally from whether the Federation itself is a party to an agreement and not from whether rights and duties on the Federation can arise indirectly out of an agreement. It applies not to all treaties concluded within the framework of the Federal State - whether by the Federal power or by the constituent States - but only to those concluded "in the name of the Federation", as they are termed in Article 59 (1) Basic Law, to which Article 59 (2) refers. As with any other government act, the parliament is entitled vis-à-vis the Federal Government in respect of assent pursuant to Article 32 (3) Basic Law, only to general parliamentary control and, as the gravest recourse, a vote of no confidence.
4. The Agreement on the Port of Kehl is in external appearance an agreement by the Land Baden with a public-law legal person set up under French law. The Agreement was concluded on the one part in the name of the Land Baden, and on the other in the name of the Port Autonome de Strasbourg. There is no basis for the assertion that in concluding the agreement the Land Baden had acted on behalf of the Federal Republic of Germany. The Land Baden could have acted on behalf of the Federation only in virtue of powers of agency conferred by the Federal President, (Article 59 (1) Basic Law). But that there was any such conferment has neither been asserted nor shown. Had the Land Baden been vested with powers of agency, and had it in fact in negotiating and concluding the Agreement wished to act on behalf of the Federation, then this would have to have been expressed in the wording of the Agreement. The words "in the name of the Federation" would have to have appeared; only then would the Agreement have been one by the Federation.
The Port Autonome de Strasbourg too, a statutory body subject to French law, acted in its own name. Admittedly, it is in the preamble to the treaty termed "habilité à cet effet". But this fact does not allow the conclusion to be drawn that the Port Autonome de Strasbourg was acting on someone else's behalf, namely on behalf of the French Republic. In French legal language the word "habilité" by no means necessarily has the semantic content of "bevollmächtigt [having power of agency]". It can just as well have the meaning "befugt [authorized]" or "zuständig [competent]". In the case in point this term only indicates, in accordance with its meaning and its legal significance, that all domestically necessary preconditions were present with the Port Autonome when it concluded the Agreement. This is not altered by the fact that the President of Baden in his letter of 3 August 1951 to the Secretary of State at the Foreign Office interpreted the words "habilité à cet effet" to the effect that the French Foreign Office had empowered the Port Autonome de Strasbourg to negotiate or that according to the statement in the same letter the initialling of the Agreement was made dependent on personal assent from the French Foreign Minister.
As an institution of French public law, the Port Autonome de Strasbourg is by French law subject to French governmental supervision. This follows from the French Act setting up the Port Autonome de Strasbourg as an établissement public of 26 April 1924, and from the Decree of 27 September 1925 by the President of the French Republic regulating the internal order and statutes of this public-law institution. In its capacity as an établissement public, the Port Autonome de Strasbourg had, in concluding the Agreement on the Port of Kehl, to provide itself with the certainty that the conclusion of the intended agreement did not run contrary to the interests of the French Government to which it was subordinate. The assent given by way of governmental supervision is therefore essentially different from a power of agency to act on behalf of the French Republic. The fact that the French Government was greatly interested in the conclusion of this Agreement is beyond doubt. But this alone does not transfer this Agreement, exclusively concluded in the name of another legal person, to an agreement of the French Republic. Moreover, conclusion of the Agreement on the Port of Kehl lay within the scope of the tasks of the Port Autonome de Strasbourg, among the statutory objectives of which are "to seek for means appropriate to increase its economic expansion and to procure and where necessary to create all appropriate measures therefor" (Article 2 of the French Act of 26 April 1924). Everything therefore speaks against the view that the French Republic had empowered the Port Autonome de Strasbourg to conclude the Agreement in her name.
If the French State had wanted to conclude the Agreement, this would in accordance with international treaty practice have to have been expressed, just as if the Federal Republic of Germany had given the Land Baden powers of agency. Undisclosed agency in the conclusion of agreements is not conceivable, at any rate in international transactions. Accordingly, there cannot exist any "undisclosed treaties". In legally evaluating the situation, accordingly, it should be held that the Port Autonome de Strasbourg concluded the Agreement in its own name. The Land Baden accordingly concluded the Agreement on the Port of Kehl not with the French Republic but with the Port Autonome de Strasbourg as the actual contractual partner.
The provisions of the Basic Law on international treaties relate only to agreements with foreign States and equivalent subjects of international law (BVerfGE 1, 351 ff.). The contractual partners that come into consideration on the German side are the Federal Republic and the Länder. The foreign partners must also fulfil these conditions (cf. Article 32 and Article 59 Basic Law).
The concept of treaties with "foreign States" within the meaning of Articles 32 and 59 Basic Law must however be interpreted extensively. Among possible foreign contractual partners are legal subjects of international law resembling States (cf. Mangoldt, Kommentar zum Grundgesetz, Note 2 on Article 32, p.202, and Menzel in the Bonn Commentary on Article 32, p.2, 3). Thus, agreements with associations of States and with organs of international or supranational communities of States can, to the extent that they are recognized in international law as legal persons capable to act and capable of obligations (for instance the Coal and Steel Community, the International Labour Office, the UN Security Council), be regarded as treaties within the meaning of Articles 32 and 59 Basic Law, in analogous application and extension of the principles of the Basic Law. The requisite properties however, do not apply to those legal subjects which are in all areas subject to the law of a paramount national community (Alf Ross, Lehrbuch des Völkerrechts, 1951, p.17). These include statutory bodies subject exclusively to national law. The Port Autonome de Strasbourg is nothing other than such a body. It is not a State and not a legal person recognized in transactions in international law as an intergovernmental organization. For agreements with foreign public-law entities which are not States nor similar to States the Basic Law contains no provisions. Neither the provisions on the representation in international law of the Federal Republic of Germany nor on the formation of Federal policy in concluding treaties of the Federation (Article 59 Basic Law) apply to them; nor does the provision of Article 32 (3) Basic Law, which subject the conclusion of treaties by a Land to the control of the Federation.
The Agreement concluded by Land Baden with the Port Autonome de Strasbourg is therefore not a treaty within the meaning of Article 32 (3) Basic Law.
5. Finally, considering the question whether Baden was competent to conclude an agreement of this nature, it must be assumed that in accordance with Federal constitutional law in force, the competence of Länder has its limits at the exclusive competence of the Federation in every case, and at the concurrent competence of the Federation where the Federation has already claimed this in the area in question.
A legal assessment of the Agreement of the 19 October 1951 shows that its Article 7 (1) does not form part of the content of the Agreement, since this is only a declaratory statement of a process that took place as a unilateral sovereign act of the French High Commissioner outside the Agreement, and therefore cannot have been an object of the legal commitments between the contracting parties. As to return of the territory of the Port of Kehl by France to German sovereignty, the Foreign Ministers of the three Western occupying powers had already reached agreement in the Washington Accord. It could be declared unilaterally, and had already been declared by Directive no. 219 of the French High Commander of 6 July 1949. The Port Autonome de Strasbourg had no control over this. The fact that the return of the town and port of Kehl was to be a unilateral sovereign act follows from the letter from the deputy of the French High Commissioner to the President of Baden of 28 July 1951. This was also the procedure following conclusion of the Agreement. The mention of this return in Article 7 of the Agreement on the Port of Kehl can therefore only have the meaning that a presupposed basis for the Agreement is being described. It has only indicative character, that evidently is why it has been included in the Articles of the Agreement that determine the time of its entry into force and contain transitorial arrangements. The return was not an object of the contractual commitments nor an object of a promised service for which a quid pro quo was being agreed.
The content of the Agreement relates exclusively to objects falling under the sole power of disposal of the Land Baden. The administration of the Port of Kehl was conveyed to an agency under the public law of Baden (Article 1). The Land Baden was competent for this, since the setting up of statutory bodies is, apart from the cases of Article 87 Basic Law, a matter for the Länder. Since the administration of the Port of Kehl built by the Baden government was exclusively a Land matter, objections that the conveying of this administration to a body under Baden public law was inadmissible cannot be justified, at any rate from the viewpoint of the distribution of powers between the Federation and the Länder. Inland ports on the Rhine are in fact not among the waterways of general communication taken over by the Reich through the Treaty of 29 July 1921. They are therefore subject neither to the Federal administration by Article 89 Basic Law nor to concurrent legislation by the Federation pursuant to Article 74 (21) Basic Law.
Again, the conferring of the power on the newly constituted body to set the port fees and the transshipment, wharehousing and towing fees and lay down the operating provisions for the port "in accordance with existing statutory provisions" (Article 3) - which are meant, are German provisions - is equally within the sphere of competence of the Land Baden, as was the exercise of this power hitherto by the Land Baden. Even if these were public-law fees and not private-law payments for use, the right to set them could still be conveyed to a statutory body.
By Articles 2,4 and 6 of the Agreement the Land Baden took on commitments under the law of obligations for the physical equipment and maintenance of the port, which could be carried out with the Land's resources without in any way encroaching on the competence of the Federation.
It emerges from Article 8 that the Agreement is of a provisional character and is in principle to remain in force only until the conclusion of a peace treaty between Germany and France. This provision does not indicate a political nature of the Agreement but on the contrary is meant to express the fact that just this political settlement of the Kehl question is not to be anticipated but to be left to a peace treaty.
The agreement to settle disputes by arbitration under Article 9 does not exceed the competence of the Land. In so far as a Land is competent to regulate matters by agreement it may also make itself subject to arbitration for disputes with its contractual partner. The fact that foreign nationals may belong to the agreed arbitration tribunal does not make this into an intergovernmental institution within the meaning of Article 24 Basic Law. Such an institution can be set up only by an international treaty, the partners of which are to be regarded as subjects of international law.
By Article 1 of the Agreement the administration of the Port of Kehl is to be conveyed to a statutory body of Baden to be set up. This body, set up under the law of Land Baden and existing in accordance with it, cannot be an intergovernmental institution within the meaning of Article 24 Basic Law because it is subject only to German governmental supervision and only to German law. The fact that the statutes of this body legally guarantee influence of foreign nationals - though not of the French State - on its policy formation does not change anything here. This allowing of foreign influence on the policy formation of a public-law body under the sphere of German law does not transform this body into an intergovernmental institution, among the characteristics of which are that they are not subject to the law of one individual State. The competence of the Federation pursuant to Article 24 Basic Law has therefore not been infringed.
Finally, the Agreement on the Port of Kehl does not "regulate" the political relationships between the Federal Republic of Germany and the French Republic. While this agreement can like any other Agreement by a Land have political consequences for the Federal Republic, it is aimed in content and objectives at regulating the economic relationships between the Rhine ports of Strasbourg and Kehl and reducing the competition between these two neighbouring ports, though admittedly only in favour of Strasbourg. However, it does not directly "regulate" political relationships between the Federal Republic and France. This could come about only through a treaty between the Federal Republic of Germany and the French Republic.
By the nature of things political relationships with a foreign country can be regulated only through direct statements of intent to the latter. In the Federal State, which in international transactions in principle appears externally as a unit (Article 32 (1) Basic Law), this unity might mean that the Federation alone is competent for such a "regulation". If the Länder had their own political relationships with foreign States contrasting with the policy of the Federation that would contradict the essence of a Federal State. Whether a legal principle to this effect can be derived from the Basic Law need not be gone into. It could at any rate not have the general content that all agreements by the Länder that might have effects on the political relationships of the Federation with foreign States are inadmissible. For Article 32 (3) Basic Law requires, specifically for agreements by Länder with foreign countries, assent by the Federal Government, so that agreements detrimental to Federal interests can be prevented. Insofar as the Länder have the right to make agreements, they themselves can conclude treaties with foreign countries even where the content of the treaty has political consequences for the Land itself or for the Federation. Whether the foreseeable consequences are compatible with the Federal Republic's foreign policy is decided by the Federal Government, exercising its power to give or refuse its assent to such an agreement. The Länder, which apart from the right to conclude agreements have no share in external power (Article 32 (1) - (3) Basic Law), can accordingly not pursue any autonomous foreign policy in exercising the power to conclude agreements. Thus, they cannot themselves regulate political relationships of their own with foreign countries, even by agreement. Instead, they are always dependent on assent by the Federal Government, but only on that. For it is the Federal Government which in collaboration with the Federal President is competent to exercise powers in foreign affairs, and moreover alone, unless the means selected for this is a treaty on behalf of the Federation that meets the conditions of Article 59 (2) Basic Law. It is only in the latter case that Bundestag and Bundesrat have a right of participation in policy formation on an act of exterior power.
But in this case there is no direct agreement with France. The Agreement on the Port of Kehl accordingly regulates neither the political relationships of the Federal Republic nor those of Land Baden with the French Republic. Accordingly, no argument to the effect that the exclusive competence of the Federation has been infringed can be deduced from the standpoint that political relationships with a foreign country are affected by the Agreement.
There could be circumvention of the Bundestag's rights only where the Federal Government had given its assent to an agreement by a Land which the Federation alone could and should have concluded, through its competent federal organs. But, as has been explained, this is not the case here.
Summarizing, it may be said that the Agreement on the Port of Kehl was not an agreement with a foreign State within the meaning of Article 32 (3) Basic Law and Article 59 (2) Basic Law; that Baden has not exceeded its own competence in concluding this Agreement; that the Agreement does not confer sovereign powers upon an inter-governmental institution (Article 24 Basic Law). The assent of the Federal Government to the Agreement on the Port of Kehl can therefore not have infringed the rights of the Bundestag asserted by the petitioner. Accordingly, Point 1 of the petitioner's petition is unjustified and Point 2 inadmissible. The petitions are therefore rejected.
Judges: Dr.Katz, Dr.Fröhlich, Wolff, Dr.Roediger, Dr.Schunck, Dr.Klaas, Henneka, Dr.Leibholz, Dr.Friesenhahn, Dr.Rupp, Dr.Geiger, Dr.Federer
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