Judgment of the Second Senate of 18 December 1984

Reasons:

A.-I.

1

The proceedings concern the question of whether the Federal Government, by consenting to the deployment of US medium-range ballistic missiles with nuclear warheads of the type Pershing-2 and cruise missiles in the Federal Republic of Germany without a specific statutory basis, violated rights of the Bundestag or directly threatened to violate such rights. […]

II.

2

1. The applicant is the parliamentary group in the Bundestag for DIE GRÜNEN.

3

a) With its submission instituting the Organstreit proceedings (dispute between constitutional organs), which the Federal Constitutional Court received on 16 November 1983, the parliamentary group lodged an application to declare as follows:

4

The Federal Government, by consenting to the armed forces of the United States of America stationed in Germany being provided with Pershing-2 ballistic missiles with nuclear warheads and cruise missiles without obtaining the constitutionally required Bundestag authorisation through an act of Parliament, violated the rights of the Bundestag under Art. 79(1) first sentence and Art. 20(3) in conjunction with Art. 59(2) of the Basic Law.

5

In the oral hearing of 17 July 1984, the applicant amended the application […].

6-12

b) […]

13

2. The respondent in the present proceedings is the Federal Government.

14

a) The Federal Government considers the application to be inadmissible.

15-18

[…]

19

b) The Federal Government also considers the application to be unfounded.

20-26

[…]

27-32

3. […]

33

In order to clarify that the assertion of a violation of rights of the Bundestag under Art. 79(1) first sentence of the Basic Law (Grundgesetz – GG) was based on Art. 24(1) and Art. 25 of the Basic Law, and to illustrate the relationship between Art. 20(3) and Art. 59(2) first sentence of the Basic Law as set forth in the aforementioned submissions, the applicant amended its application in the oral hearing as follows:

34

The Federal Government, by consenting to the armed forces of the United States of America stationed in Germany being provided with Pershing-2 ballistic missiles with nuclear warheads and cruise missiles without obtaining the constitutionally required Bundestag authorisation through an act of Parliament, violated the rights of the Bundestag under Art. 79(1) first sentence in conjunction with Art. 24(1) and Art. 25 and under Art. 59(2) first sentence in conjunction with Art. 20(3) of the Basic Law.

35-40

[…]

41

4. In the oral hearing at the Federal Constitutional Court and in a subsequently filed submission, the applicant reaffirmed its views and added to its previous submissions.

42-44

a) […]

45

The applicant requested that experts be heard to take evidence on the following assertions:

46

1) The Pershing II is a ballistic missile that can reach the western Soviet Union as far as Moscow in about 12-14 minutes after launch from the Federal Republic of Germany. It is thus far superior to even the fastest fighter jets.

2) Owing to its active guidance system for the final flight phase, the Pershing II has the highest accuracy of all missile systems currently available to the US (including intercontinental ballistic missiles). The (intercontinental) MX, which will be operational in 1986, and the Trident II submarine-launched missile, which will be operational in 1989, will be capable of targeting and destroying fortified targets in the Soviet Union (especially command, communications and control centres).

3) The Pershing II has a penetration capability against which the Soviet Union has no means of defence. By contrast, the Soviet Union has a high defence capability against fighter jets.

4) In contrast to both the conventional fighter aircraft and cruise missiles (unmanned aircraft, no ballistic carriers) currently deployed in the UK and Italy, which are kept in armoured hangars, the Pershing II missiles are deployed without protection; they therefore have little chance of survival in the case of a possible attack. In the event that they are under threat, or merely suspected of being under threat, they must either be withdrawn from Germany or fired early.

5) The short warning times brought about by the deployment of medium-range missiles in Central Europe have contributed to the trend towards automating information and decision-making processes with regard to the use of these missiles.

6) The technical capabilities of the Pershing II mean that it is a military warfare tool capable of directly destroying operational targets in the Soviet Union from the territory of the Federal Republic of Germany in a targeted, selective manner and on a purely military mission. It allows a shift in military strategy from deterrence through mutual assured destruction to warfare deterrence, i.e. a shift from the threat of nuclear annihilation to the threat of defeat in a nuclear war.

7) The deployment of 108 Pershing II systems on the territory of the Federal Republic of Germany expands US military strategic choices vis-à-vis the Soviet Union. In particular, the United States gains the possibility of pursuing military objectives outside the purposes of the NATO alliance.

47

[…]

48

b) The Federal Government countered the applicant’s statements in the oral hearing.

49-74

1. [...]

75

The Federal Government opposes the applicant’s request for taking evidence on the grounds that there is no need to do so because the assertions are irrelevant to the pending proceedings.

B.-I.

76

The application is admissible.

77

1. As a parliamentary group in the 10th German Bundestag, the applicant has the legal ability to be a party to the proceedings pursuant to §§ 13 no. 5 and 63 ff. of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 2, 143 <160>; established case-law). According to § 63 of the Federal Constitutional Court Act, the Federal Government, against whom the application is directed, can be a respondent in Organstreit proceedings.

78

2. The subject matter in Organstreit proceedings is not only limited to the challenged conduct of the respondent, it is also circumscribed by the provisions of the Basic Law which the challenged acts or omissions are asserted to have violated (§ 64(2) of the Federal Constitutional Court Act). The Federal Constitutional Court must adhere to this limitation of the subject matter (BVerfGE 2, 347 <367 f.>); § 64(2) of the Federal Constitutional Court Act is a binding procedural provision (BVerfGE 2, 143 <172>). […]

79

In its submission initiating the proceedings, the applicant stated that Art. 79(1) and Art. 20(3) in conjunction with Art. 59(2) of the Basic Law have been violated, whereas in its [amended] application in the oral hearing on 17 July 1984, it stated that Art. 79(1) first sentence in conjunction with Art. 24(1), Art. 25 and Art. 59(2) first sentence in conjunction with Art. 20(3) of the Basic Law have been violated.

80

This does not amount to a change of the subject matter of the proceedings. The term ‘application’ in § 64(2) of the Federal Constitutional Court Act does not only refer to the operative part of the Court’s decision that is formally requested with the application. Rather, the provisions of the Basic Law that are claimed to have been violated by the challenged act can also be inferred from the reasons provided to substantiate the application (BVerfGE 4, 115 <123>). When the applicant’s submissions are assessed on this basis, it becomes clear that the applicant also considers that the Federal Government’s actions violate provisions of the Basic Law other than those set forth in the original application.

81-82

[…]

83

3. With regard to this subject matter, the applicant has standing to bring a challenge to the Federal Government’s actions, but not all challenges raised by the applicant are admissible.

84

a) An applicant has standing if the Court can decide a matter vis-à-vis the applicant. This is determined by substantive law (including procedural provisions and provisions on competences) and, more specifically, by the question of whether a party to the proceedings asserts its own rights, which are accorded to them by substantive law, or is authorised to assert the rights of others in their own name.

85

In its established case-law, the Federal Constitutional Court has recognised that a parliamentary group in the Bundestag may also assert rights that the Bundestag possesses vis-à-vis a respondent in its own name (BVerfGE 2, 143 <165>; established case-law). A parliamentary group may assert such rights by way of vicarious standing (Prozessstandschaft) insofar as it claims that an act or omission of the respondent violates or directly threatens to violate the Bundestag’s rights and obligations following from the Basic Law (§ 64(1) of the Federal Constitutional Court Act).

86

b) The applicant makes use of this possibility in the present proceedings. It is immaterial in this respect that the applicant does not apply for a declaration that the Basic Law has been violated, which would reflect the wording of § 67 of the Federal Constitutional Court Act, but instead applies for a declaration that the rights of the Bundestag have been violated. The application also encompasses the former declaration (cf. BVerfGE 2, 347 <366 f.>).

87

c) In this case, the challenged act within the meaning of § 64(1) of the Federal Constitutional Court Act is the Federal Government’s declaration of consent regarding the deployment of the weapon systems in question.

88

aa) According to the wording of its application, the applicant claims that the Federal Government has violated rights of the Bundestag by failing to submit a bill to the Bundestag which, if adopted, would have authorised the Federal Government to consent to the armed forces of the United States stationed in Germany being equipped with Pershing-2 missiles with nuclear warheads and cruise missiles; according to the application, this failure to act was in breach of the Basic Law.

89

This submission would only be plausible if bills of this type could not be introduced from the floor of the Bundestag (Art. 76 of the Basic Law). Some legal scholars contend that the right to introduce bills on the approval of treaties within the meaning of Art. 59(2) first sentence of the Basic Law in the Bundestag is reserved for the Federal Government ([…]), while others take the view that the rules of Art. 76 of the Basic Law apply ‘without exception’ ([…]). This question need not be decided here, as the declaration of consent given by the Federal Government does not amount to a declaration to conclude a treaty within the meaning of Art. 59(2) first sentence of the Basic Law. No other legal limitations are ascertainable that would have precluded members of the Bundestag from introducing the bill sought by the applicant. In this case, a violation of the rights and obligations of the Bundestag by the Federal Government within the meaning of § 64 of the Federal Constitutional Court Act cannot be found to exist when the Federal Government merely fails to do what members of the Bundestag can do themselves. Thus, if the application were construed as a challenge regarding the mere omission to introduce a bill, it would be inadmissible and would have to be dismissed.

90

A possible breach of duty by the Federal Government through its failure to introduce such a bill in the Bundestag does not result from the special cooperative relationship between the Federal Government and the Bundestag in foreign affairs that is asserted by the applicant. It is true that the principle that a constitutional organ must take into consideration the interests of other constitutional organs when exercising its competences (cf. BVerfGE 35, 257 <261 f.>; 45, 1 <39>) may give rise to rights and obligations within the meaning of § 64(1) of the Federal Constitutional Court Act, particularly review, information and consultation obligations that enable the other constitutional organs to adequately exercise their competences. However, the applicant did not submit any arguments suggesting that the Federal Government, through an omission in violation of its obligations, prevented the Bundestag from exercising its competences in foreign affairs or thwarted their exercise; nor are such circumstances otherwise ascertainable. The deployment of the US weapon systems in question on German territory was addressed by the Bundestag in detail on several occasions. […]

91

bb) Although the Federal Constitutional Court’s review is limited to the subject matter set forth in the application, the Court is not bound by the wording of the application (cf. BVerfGE 1, 14 <39>); rather, the actual nature of the procedural relief sought thereby is decisive. When the reasons given in the application are taken into account, as is required, it follows that the applicant considers the violation of rights of the Bundestag to arise from the fact that the Federal Government gave its consent to the deployment without having been authorised to do so by a specific law, which, in the applicant’s view, was necessary under constitutional law. The applicant does not seek to initiate a legislative process; rather, it wants the Court to declare that the Government’s consent to the deployment violated rights of the Bundestag within the meaning of § 64 of the Federal Constitutional Court Act on the grounds that said consent was given without sufficient statutory authorisation. In adopting this interpretation, the Federal Constitutional Court does not alter the subject matter of the proceedings – which it would be prohibited from doing (cf. BVerfGE 2, 347 <367>); it merely clarifies the meaning of the application.

92

d) With regard to the facts of the case as submitted by the applicant, it cannot be ruled out that the challenged declaration of consent could have violated or directly threatened to violate rights conferred on the Bundestag by the Basic Law (§ 64(1) of the Federal Constitutional Court Act).

93

aa) At least insofar as the applicant asserts a violation of rights of the Bundestag following from Art. 79(1) first sentence in conjunction with Art. 24(1) of the Basic Law and from Art. 59(2) first sentence in conjunction with Art. 20(3) of the Basic Law, the applicant has vicarious standing to assert a possible violation of rights. Art. 24(1) and Art. 59(2) first sentence of the Basic Law confer legislative powers on the Bundestag in the area of foreign affairs and, in this respect, constitute rights of the Bundestag within the meaning of § 64(1) of the Federal Constitutional Court Act (cf. BVerfGE 2, 347 <368, 379>). The challenged declaration of consent of the Federal Government is an act concerning foreign affairs. It cannot be ruled out from the outset that a statutory authorisation for such declaration in accordance with the affected provisions of the Basic Law was necessary, or that the Federal Government disregarded limits of existing statutory authorisations in an unconstitutional manner that violated the aforementioned legislative powers of the Bundestag.

94

bb) By contrast, insofar as the applicant claims that rights of the Bundestag within the meaning of § 64(1) of the Federal Constitutional Court Act have been violated by the Federal Government’s giving of consent because it has substantive effects on fundamental rights, surrenders the core of national sovereignty that, according to the applicant, is imperative under constitutional law, or because it might violate general rules of international law within the meaning of Art. 25 of the Basic Law, its challenges are inadmissible. Neither the fundamental rights, nor the sovereignty of the Federal Republic of Germany, nor the general rules of international law give rise to rights of the Bundestag as such within the meaning of § 64(1) of the Federal Constitutional Court Act. […]

95

cc) In particular, the applicant’s challenge that the consent in question violates rights of the Bundestag arising from the limitation clause in Art. 2(2) third sentence of the Basic Law is inadmissible. The applicant takes the view that the legislator failed to take into account the increased risks to the lives of fundamental rights holders protected by Art. 2(2) first sentence of the Basic Law that arise from the deployment of the new weapons. […]

96

In doing so, the applicant does not claim that, by declaring its consent, the Federal Government exceeded the limits of its statutory scope of action. Rather, with this challenge, the applicant assumes that while the Government has the ability to take such course of action, it would have needed to enact a law providing for additional prerequisites and procedural rules to exercise this ability. The applicant therefore considers the existing law to be insufficient under the essential matters doctrine (Wesentlichkeitstheorie), and thereby does not assert that the Federal Government violated or threatened to violate rights of the Bundestag within the meaning of § 64(1) of the Federal Constitutional Court Act.

97

dd) The inadmissibility of these challenges (see bb) above) is not affected by the applicant’s submission that the Federal Government’s consent is not in breach of inviolable substantive constitutional principles, but that it is presently precluded by constitutional provisions which would have had to be amended by a majority capable of amending the Constitution. The major aspect raised by the applicant in this regard is national sovereignty. However, even this argument cannot lead to the desired extension of review to the substantive provisions of the Basic Law on which these claims rest.

98

If a state measure is not precluded by Art. 79(3) of the Basic Law, but ‘merely’ by a constitutional provision that can be amended, it is indeed the Bundestag, together with the Bundesrat, that can effectively remove this obstacle by way of constitutional amendment (Art. 79(2) of the Basic Law). This applies irrespective of whether the constitutional provision ‘precluding’ the act at issue only assigns the competence for the matter in question to a state organ other than the one wishing to take action – in this case, the Bundestag instead of the Federal Government – or whether the provision poses substantive obstacles which cannot be overcome by any state organ unless the provision is rescinded or amended.

99

However, the assessment in Organstreit proceedings of ‘acts performed without constitutional amendment’ in light of the Bundestag’s legislative powers only hinges on whether the constitutional provision that was not observed and whose amendment would have been necessary was, at a minimum, also intended to guarantee legislative powers of the Bundestag. The role of Organstreit proceedings is to specify the scope of the rights and obligations in relation to a potential respondent when the applicant asserts that an act or omission on the part of the respondent violates, or directly threatens to violate, rights and obligations conferred by the Basic Law on the applicant or on the organ to which the applicant belongs (Art. 93(1) no. 1 of the Basic Law; § 64(1) of the Federal Constitutional Court Act).

100

As the Federal Constitutional Court recently found in proceedings involving a parliamentary group in the Bundestag and the Federal Government, this description of the types of potential subject matters of Organstreit proceedings also has the following implication: ‘Whether the conduct of the Federal Government violated the Basic Law in other respects, without violating rights of the Bundestag, cannot be decided in these proceedings’ (BVerfGE 2, 347 <368>). The decisive factor in Organstreit proceedings with the Bundestag as applicant and the Federal Government as respondent are therefore the ‘rights and obligations of the Bundestag’ conferred by the Basic Law (cf. also BVerfGE 2, 347 <366 f.>).

101

Under the Basic Law, the Bundestag acts as a legislative organ, not as an all-powerful ‘legal oversight authority’ vis-à-vis the Federal Government; the Basic Law established the Bundestag as a political authority responsible for creation, oversight and revocation in relation to the Federal Government and, in particular, the Federal Chancellor (cf. Art. 63(1), Art. 43(1), Art. 67(1) of the Basic Law and BVerfGE 2, 347 <371 before 4.>). Therefore, there is no right of the Bundestag that can be derived from the Basic Law that would compel the Federal Government to refrain from all substantively or formally unconstitutional acts.

102

‘Rights of the Bundestag’ within the meaning of § 64(1) of the Federal Constitutional Court Act only mean those rights conferred upon the Bundestag that the Bundestag can exercise itself or in the exercise of which it can participate, or rights that must be respected to ensure that the Bundestag can exercise its competences and the validity of its acts (such as the declaration of a state of defence under Art. 115a(1) of the Basic Law). The mere fact that a challenged act might violate the Basic Law is not sufficient for an applicant that has the legal ability to be a party to the proceedings to also have standing. An applicant in Organstreit proceedings cannot seek an abstract review of the constitutionality of the respondent’s conduct independent of the applicant’s own rights. Rather, an application in Organstreit proceedings can only be admissible if the provision of the Basic Law that is claimed to be violated confers a right on the applicant. Nor does such a right within the meaning of § 64 of the Federal Constitutional Court Act accrue to the Bundestag from any provision of the Basic Law in light of its Art. 79(1) and (2) solely because these provisions can only be amended or rescinded with the involvement of the Bundestag. The Bundestag only has standing to challenge a violation of a Basic Law provision in cases where the provision itself gives rise to rights or obligations within the meaning of § 64(1) of the Federal Constitutional Court Act, and does not have standing simply because such provisions can only be amended with the involvement of the Bundestag. The applicant’s assertions to that effect are not capable of conferring standing on it in this regard. A violation of rights of the Bundestag under Art. 79 of the Basic Law, or a threat thereof, is not at issue here.

103

There is no need to decide in the present proceedings whether the Federal Government’s consent to the deployment of Pershing-2 missiles with nuclear warheads and cruise missiles on German territory is compatible with the Basic Law in all respects; rather, the decision only concerns the question of whether the consent violated or threatened to violate rights of the Bundestag within the meaning of § 64(1) of the Federal Constitutional Court Act.

104

4. […]

105-113

5. […]

114

The applicant has the necessary recognised legal interest in bringing proceedings.

115-119

[…]

C.

120

The application is unfounded.

121

With the challenged declaration of consent, the Federal Government neither violated nor threatened to violate rights of the Bundestag following from Art. 59(2) first sentence in conjunction with Art. 20(3) of the Basic Law or from Art. 79(1) first sentence in conjunction with Art. 24(1) of the Basic Law.

I.

122

It is not disputed that the Federal Government has given its consent to the deployment of the weapon systems in question on the territory of the Federal Republic of Germany, and that no specific law that would have provided express authorisation to give such consent was enacted.

123

The challenged consent was given in the framework of the NATO defence system. Its legal basis consists of the North Atlantic Treaty of 4 April 1949 (as amended on 17 October 1951 – Federal Law Gazette, Bundesgesetzblatt – BGBl. 1955 II p. 289), the Treaty of Brussels of 17 March 1948 on economic, social and cultural collaboration and collective self-defence (Treaty on the Western European Union [WEU] as amended on 23 October 1954 – BGBl. 1955 II p. 283) and the Convention on the Presence of Foreign Forces in the Federal Republic of Germany (BGBl. 1955 II p. 253). […] These treaties created the legal framework for the ‘German Defence Contribution’ to ensure the ‘defence of the free world’ referred to in Art. 4(1) of the Convention on Relations between the Three Powers and the Federal Republic of Germany (Deutschlandvertrag) and in the preamble to the Convention on the Presence of Foreign Forces. They are understood as a treaty system for collective self-defence within the meaning of Art. 51 of the Charter of the United Nations (cf. preamble and Arts. 3 and 7 NATO Treaty; preamble and Arts. V and VI Western European Union Treaty). Pursuant to Art. IV of the Treaty on the Western European Union, the parties ‘and any organs established by them under the Treaty shall work in close co-operation with the North Atlantic Treaty Organization. Recognising 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.’

II.

124

The challenged declaration of consent is an act of defence policy within the framework of this treaty-based security alliance and its implementation; it does not possess the legal nature of an independent declaration to conclude a treaty. Art. 59(2) first sentence of the Basic Law does not apply – either directly or mutatis mutandis.

125

1. The consent in question is a declaration of legal significance given in the framework of an international treaty system; it is not a mere political declaration of intent that would not fall under the scope of application of Art. 59(2) first sentence of the Basic Law because it has no legal effect. It is irrelevant in this respect whether the Brussels Double-Track Decision was an act of the NATO Council or a special act of NATO members; the NATO members considered the decision […] to be binding.

126

The declaration of consent by the Federal Government is of legal significance because when the Federal Republic of Germany granted its final consent to the implementation of the Double-Track Decision on 16 November 1983, it gave the United States of America, in its capacity as a NATO ally, permission under international law to deploy the weapon systems in question in the specified scale on German territory. […]

127

2. The challenged declaration of consent was not part of the conclusion of an international treaty. It is true that it cannot be ruled out that acts by organs or collective acts of international treaty organisations can also constitute treaties of the member states with the same contents as the acts in question if they are undertaken with this intention. For example, the Member States of the European Communities occasionally use this form, particularly to overcome potential competence deficits of the Communities or put them beyond dispute. However, there must be specific indications that such a dual function exists.

128

In the present case, no indications or circumstances are ascertainable that would suggest that the Federal Government’s declaration of consent could have been directed at concluding a bi- or multilateral treaty regarding the deployment of the weapon systems in question. Such indications also cannot be derived from either the statement of 12 December 1979 regarding the ‘Double-Track Decision’ or the conduct of the United States as the potential other party to the treaty.

129

3. There are no ascertainable grounds for the assumption that the Federal Government’s declaration was invalid under international law and therefore could not be binding on the Federal Republic of Germany. The Ministers of Foreign Affairs and Defence representing Germany were authorised to make this declaration under German constitutional law, by virtue of a mandate implicitly granted by the Federal President to represent him in his capacity as the organ responsible for making such a declaration under Art. 59(1) first sentence of the Basic Law ([…]). Moreover, under general international law, the Minister of Foreign Affairs of a state is authorised to make binding declarations – including of the type at issue here (cf., e.g., Art. 7(2)(a) Vienna Convention on the Law of Treaties of 23 May 1969). It cannot be ascertained that the declaration had other deficiencies under international law.

130

In its order of 16 December 1983 (BVerfGE 66, 39 <64 f.>), the Senate found that the challenged declaration of consent does not violate ius cogens rules of international law. The applicant did not demonstrate any general practice and opinio juris in the practice of states to that effect; the Senate concurs with the assessment of the international law situation as presented by the Federal Government’s legal representative.

131

4. Declarations under international law of the present type do not require the consent or involvement of the legislative bodies in the form of a federal law pursuant to Art. 59(2) first sentence of the Basic Law.

132

a) In German state practice, unilateral declarations of intent under international law given in the framework of existing bi- or multilateral treaties have never been subject to such a consent requirement. The same applies to other unilateral declarations of intent under international law, with the exception of special cases such as declarations under international law regarding a state of defence pursuant to Art. 115a(5) of the Basic Law. For example, the Federal Republic of Germany has recognised numerous foreign states, severed diplomatic relations with foreign states, claimed the German continental shelf and fishing zones in the North Sea and the Baltic Sea and terminated international treaties without obtaining the consent of the Bundestag in the form of a federal law. This practice is in line with the views held by a majority of legal scholars ([…]).

133

b) Expanding the requirement of consent under Art. 59(2) first sentence of the Basic Law to acts other than declarations to conclude a treaty is not compatible with the wording of the provision. Art. 59(2) first sentence of the Basic Law also cannot be applied to such acts by way of analogy.

134

Consistent with Art. 45(3) of the Weimar Constitution and its application, according to which unilateral acts under international law such as the termination of international treaties were considered to not require the consent of the Reichstag ([…]), Art. 59(2) first sentence of the Basic Law […] expressly limits the requirement of legislative approval to certain types of international treaties. Thus, an agreement under international law that does not fall under the term ‘political treaty’ and does not concern matters of federal legislation is not covered by Art. 59(2) first sentence of the Basic Law, including when it has significant effects on the internal relations of the Federal Republic of Germany (cf. BVerfGE 1, 372 <382>; […]).

135

It is irrelevant here whether this finding alone would be capable of ruling out that Art. 59(2) first sentence of the Basic Law is applied mutatis mutandis to declarations of the type at issue here. In any case, such an application would raise serious concerns with regard to the position of Art. 59(2) first sentence of the Basic Law in the Basic Law’s allocation of state tasks to specific functions and the bodies performing these functions.

136

To be certain, Art. 59(2) first sentence of the Basic Law – like several other provisions of the Basic Law – grants the Bundestag certain powers of participation regarding the formation of the will for undertaking acts in foreign affairs. These matters, for which involvement of the Bundestag as well as the form of action of such involvement are guaranteed by constitutional law, are of such significance, both in political and in legal terms, that they cannot be viewed as exceptions. From a historical perspective, these rules reflect a trend towards strengthening parliamentary involvement in the formation of the will in foreign affairs. Nevertheless, Art. 59(2) first sentence of the Basic Law limits this involvement, both in subject matter, to treaties of the type defined in this provision, and in terms of substance, to mere consent in the form of a federal law. Under Art. 59(2) first sentence of the Basic Law, the Bundestag cannot prevent the Federal Government from refraining from, starting or breaking off treaty negotiations or drafting treaties with specific contents, nor can it compel the Federal Government to do these things. Likewise, the Bundestag cannot require the executive to conclude a treaty for which an act of approval within the meaning of Art. 59(2) first sentence of the Basic Law has been adopted or, after such treaty is concluded, to terminate the treaty under international law or maintain it; the special provision regarding the conclusion of peace in Art. 115l(3) of the Basic Law notwithstanding. Apart from the power to provide or not provide constitutional authorisation to the executive, in the form of a law, to conclude treaties of the aforementioned type, Art. 59(2) first sentence of the Basic Law does not grant the legislative bodies powers to initiate, shape or oversee foreign affairs. Nor does it follow that, as claimed by the applicant, each act of the Federal Government under international law that governs the political relations of the Federal Republic of Germany or concerns matters of federal legislation must be in the form of an international treaty that requires the consent of the legislator.

137

The strict limitation of the powers granted to the legislative bodies by Art. 59(2) first sentence of the Basic Law is an element of the separation of powers as shaped by the Basic Law. Art. 59(2) first sentence of the Basic Law must be interpreted in light of Art. 20(2) of the Basic Law. The principle of the organisational and functional division and separation of powers set out in that provision serves to ensure the distribution of political power and responsibility as well as oversight of persons in power; it also serves to ensure that state decisions are made as correctly as possible, i.e. by the organs that are best suited for making such decisions in terms of their organisation, composition, function and procedures. It also has an overall aim to moderate state power. The concentration of political power that would arise if the Bundestag were granted central, executive-style decision-making powers for foreign affairs which exceed those assigned to it by the Basic Law would run counter to the present division of power, responsibility and oversight provided for by the Basic Law. The fact that at the federal level it is only members of the Bundestag who are directly elected by the people does not change this. The specific allocation and balancing of state power that must be observed under the Basic Law may not be undermined by parliamentary monism in the form of an absolute reservation of parliamentary decision-making that is falsely derived from the principle of democracy (BVerfGE 49, 89 <124 ff.>). The principle that Government is accountable to Parliament also requires that the Government have a core of autonomous executive decision-making (BVerfGE 67, 100 <139>). Democracy under the Basic Law is governed by the rule of law and, for the relations between state organs this means above all a democracy involving the separation of powers.

138

In light of the exceptional significance that foreign policy currently has for the existence of the Federal Republic of Germany, an extension of the scope of Art. 59(2) first sentence of the Basic Law to acts of the Federal Government vis-à-vis other subjects of international law that do not involve international treaties, including acts governing political relations, would amount to an encroachment on central decision-making powers of the executive. Such an extension would shift a substantial amount of political power to the Bundestag at the expense of the executive and would do so in an area that, in functional terms, does not constitute legislation within the meaning of Art. 20(2) second sentence of the Basic Law. This is because the acts under international law in question here are not themselves capable of bringing about domestic legal effects. The general allocation of acts in foreign policy matters to the executive government’s sphere of competence is based on the consideration that, from an institutional perspective, it is generally only the Federal Government that permanently has the necessary personnel, resources and organisational structure to react swiftly and adequately to changing foreign policy situations and is therefore best suited to fulfil the state’s responsibility of dealing with foreign affairs. The trend towards more parliamentary involvement in foreign affairs, which is reflected in Art. 59(2) first sentence of the Basic Law, does not run counter to this allocation. Under the Basic Law, the executive organs also derive democratic legitimation for their institutions and functions from the constitutional legislator’s fundamental decision in Art. 20(2) of the Basic Law (BVerfGE 49, 89 <125>). These organs also have democratic legitimation in terms of their members, which is conveyed through a chain of individual acts of appointment and dismissal that can be traced back to active citizens, in particular under Arts. 38, 63, 64 and 67 of the Basic Law ([…]).

139

The Basic Law’s principle of democracy therefore cannot be invoked as grounds for expanding the requirement of consent under Art. 59(2) first sentence of the Basic Law to acts of the type in question here.

140

This is not altered by the fact that such acts of the executive may be binding on Germany under international law in the individual case and that these binding effects are difficult or impossible to escape, or produce other effects which are difficult or impossible to escape; whether this is the case for the consent in question therefore need not be decided here. It is true that the requirement of Art. 59(2) first sentence of the Basic Law – that treaties of the type described therein require legislative consent to be concluded – has the purpose of preventing permanent or indissoluble binding effects under international law without the consent of the Bundestag. This could be an argument in favour of expanding its application, or applying it mutatis mutandis to acts under international law of a certain scope that do not involve treaties. Nor could it be argued that such far-reaching effects under international law rarely result from acts not involving treaties; the recognition of foreign states, of territorial changes, borders and other sovereignty lines or of legal relationships under international law, for example, may well have similarly far-reaching significance and are, if made without reservation, in principle irrevocable. Declarations made in the framework of NATO’s consultation process can be equally significant, too.

141

However, as set out above, the organisation of democracy under the Basic Law does not require that all acts and decisions that are of far-reaching or existential significance in themselves or with regard to their effects must be assigned to Parliament, or that Parliament must be involved through legislation. The executive, and in particular the Government, is also a ‘political’ power; it is not limited from the outset to decisions of lesser significance. Under the Basic Law, state power in all its functions is democratically constituted and legitimated, albeit in different ways, and is organised on this basis in line with the principle of the separation of powers. It therefore does not amount to a democratic deficit that the executive has exclusive powers in foreign affairs to take far-reaching and, possibly, existential decisions. Potential political risks resulting from this division of competences must be accepted under constitutional law.

142

If the Bundestag disapproves of such decisions, it can make use of its parliamentary oversight powers – including in foreign affairs. The Bundestag can elect a new Federal Chancellor, and thus bring down the government, it can make use of its budgetary powers, but Art. 59(2) first sentence of the Basic Law does not grant the Bundestag the power to grant or deny consent to acts of the type in question here.

III.

143

The act in question does not violate Art. 24(1) of the Basic Law.

144

1. By giving its consent, the Federal Republic of Germany has permitted the United States of America, as a partner in a treaty-based defensive alliance and within the alliance’s legal framework, to deploy a specific number of Pershing-2 missiles with nuclear warheads and cruise missiles on the territory of the Federal Republic of Germany, as set forth in the Decision of the Foreign and Defence Ministers of the NATO States of 12 December 1979. In accordance with the directions agreed to by the NATO allies, the power to authorise the military use of these weapon systems lies with the President of the United States of America; in any case, he must consult the allies prior to operations of a selective nature, with particular regard to be given to the opinion of those allies from whose soil the weapons will potentially be launched or who are providing the means of delivery or the nuclear warhead. This consultation procedure may be dispensed with if required due to exigencies of time or other extreme situations, such as defence against a surprise attack. Under the current command structure of NATO, the power to use the systems in question in military operations lies with the Supreme Allied Commander Europe (SACEUR) when operational command is activated. This decision-making structure takes into account that the United States has the greatest nuclear arsenal among the NATO allies and is therefore particularly able, and has a duty, to ensure protection of the allies against attack.

145

a) The authorisation to deploy the US weapon systems in question on the territory of the Federal Republic of Germany does not in itself amount to a transfer of sovereign powers within the meaning of Art. 24(1) of the Basic Law; with this authorisation, Germany did not withdraw an exclusive sovereign right that had previously existed, or could legally have existed, in favour of a foreign power (cf. BVerfGE 37, 271 <280> 59, 63 <90>). The authorisation does not result in additional restrictions on Germany’s territorial sovereignty or its sovereignty vis-à-vis citizens. What is decisive, however, is that, in the Federal Government’s view ([…]), the right to decide on the use of these systems is ‘part of the deployment’ and inextricably linked to it.

146

This legal effect is tantamount to a transfer of sovereign powers within the meaning of Art. 24(1) of the Basic Law. For the period of validity of the challenged declaration of consent, the authorisation to deploy these weapons and use them in military operations from German territory cannot be determined by the Federal Republic of Germany alone; in this respect, Germany has set aside its previous exclusive authority in favour of non-German public power, especially in view of the integrated command structure of NATO. This is not altered by the fact that the Federal Republic of Germany had previously undertaken, under Art. 2 of the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968 (BGBl. 1974 II p. 786), to not receive control over nuclear weapons or nuclear explosive devices directly or indirectly and to not manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices. In comparison to this obligation, which must be interpreted in light of Art. 51 of the UN Charter, the consent in question here constitutes an independent legal basis in the framework of the alliance system; it would be unaffected by a termination of the Non-Proliferation Treaty.

147

b) These sovereign powers were not per se transferred to the United States of America. If this were the case, Art. 24(1) of the Basic Law would not apply, at least not directly, given that it concerns the transfer of sovereign powers to an ‘international organisation’.

148

The challenged declaration of consent grants the United States of America the decision on authorising the use of the weapon systems in question only in its capacity as an ally under the NATO Treaties and, in particular, subject to the consultations agreed for such authorisations and the joint doctrines for operations and planning. The consent only covers the weapon systems in question as weapons of NATO, with the resulting restrictions of their use for the tasks and purposes of NATO.

149

At least from the constitutional perspective of Art. 24(1) of the Basic Law, this situation arising from the Treaties must be interpreted to the effect that the President of the United States of America is entrusted with a special NATO function; insofar as the President takes a decision on authorisation that is within the framework of the declaration of consent by the Federal Government that is challenged here, the President can be considered to act as a special organ of NATO. Moreover, significant international law aspects also indicate that such action by the President of the United States of America would be attributable to NATO as a whole.

150

This constitutional outcome is also supported by the fact that the Brussels Decision of the Foreign and Defence Ministers of the NATO States of 12 December 1979, under no. 7, addresses the LRTNF (long range theatre nuclear forces) potential of NATO. Furthermore, delivery systems such as the warheads whose deployment was consented to by the Federal Government are managed by units of the United States Armed Forces in the Federal Republic of Germany; they are included in the operational planning of the integrated NATO command staffs and, under the current command structure, are under the control of the Supreme Allied Commander Europe (SACEUR) when operational command is activated.

151

c) Insofar as it results in legal effects for authorisation and decision-making with regard to deployment in military operations, the challenged declaration of consent amounts to a transfer of sovereign powers, within the meaning of Art. 24(1) of the Basic Law, to NATO. This is not altered by the fact that NATO’s Supreme Allied Commander Europe, based on previous practice, is also a US military officer and therefore subject to the command of the United States of America. As set out above, the challenged consent of the Federal Government only concerns the stationing and use of the weapon systems in question in the framework of the NATO system.

152

aa) NATO is an international organisation within the meaning of Art. 24(1) of the Basic Law. This is largely undisputed in legal scholarship. The assumption that the challenged declaration of consent transferred sovereign powers to NATO within the meaning of Art. 24(1) of the Basic Law is not rebutted by the fact that the NATO Treaty leaves it to each contracting party to assess whether a situation is a case of mutual defence within the meaning of Art. 5(1) and, if so, in what way the party satisfies its mutual defence obligation, or by the fact that NATO command staffs are not in command of the forces assigned to them by the member states for operational planning in the framework of the relevant decisions of the North Atlantic Council unless operational command is activated; it is also not rebutted by the fact that the decisions of the North Atlantic Council in principle only amount to recommendations, the assignment of armed forces for operational planning may be revoked by individual member states, or that the Treaty, according to its Art. 11 first sentence, is carried out by the parties ‘in accordance with their respective constitutional processes’. Art. 24(1) of the Basic Law does not mandate that the relinquishment of German sovereign power to an international organisation be irrevocable. Art. 24(1) of the Basic Law also does not require that the current exercise of transferred sovereign powers may not be subject to specific assessments of international situations made independently by the member states of the international organisation.

153

Rather, what is decisive is that the German act of transfer constitutes an essential legal basis in the event that these sovereign powers are actually exercised. This is the case here. The challenged declaration of consent is a legally essential prerequisite, in the framework of the alliance system, for granting the United States, in its capacity as a NATO ally and subject to the legal obligations of the alliance system, permission to decide on the authorisation of use, and for granting the competent integrated military commands of the alliance permission to decide on the military operations of the weapon systems stationed on German territory. This is not altered by the fact that this decision-making power may only become relevant in the future and, in the framework of the alliance system, depends on other factual and procedural conditions being fulfilled before it may be used. The Federal Government’s declaration of consent legally permits the use of this authorisation under the Treaty; this by itself amounts to a transfer of sovereign powers within the meaning of Art. 24(1) of the Basic Law.

154

It cannot be derived from Art. 24(1) of the Basic Law that a transfer of sovereign powers would require that integrated NATO command posts have direct command over German armed forces or inhabitants even before operational command was activated. Nor can it be inferred from the provision that a transfer of sovereign powers must only be assumed to have taken place when the international organisation in question has been granted powers with direct legal consequences vis-à-vis individuals. It therefore need not be decided here whether, in view of the current assignment of Bundeswehr units to NATO, direct command also extends to decisions regarding the use of the weapon systems in question once operational command has been activated.

155

The applicability of Art. 24(1) of the Basic Law is also not precluded by the fact that the Federal Republic of Germany’s involvement in the decision to authorise the use of the weapon systems in question is formally limited to the consultation process, and that Germany does not have co-decision rights – not even in the form of veto rights. As set out above, this decision-making structure reflects the special role of the United States of America as the alliance’s nuclear superpower and the policy of non-proliferation that the Federal Republic of Germany has committed to in treaties. At least for this very politically sensitive area, it cannot be inferred from Art. 24(1) of the Basic Law that formal co-decision rights for the Federal Republic of Germany are required for the transfer of sovereign powers. It is irrelevant here whether a transfer would be permissible if any German influence on decisions of the international organisations were ruled out, or if the Federal Republic of Germany were discriminated against compared to other, similar states. Neither is the case here.

156

bb) The Federal Government itself does not consider the consent given to be a transfer of sovereign powers within the meaning of Art. 24(1) of the Basic Law; this, however, does not preclude a different constitutional assessment by the Federal Constitutional Court. The Federal Constitutional Court does not assign a different meaning under international law to the challenged declaration of consent than that ascribed to it by the Federal Government. There is no need to decide here whether, as the respondent asserts, the alliance system at issue is a system of mutual collective security within the meaning of Art. 24(2) of the Basic Law, and the Federal Republic of Germany has, through its declaration of consent, agreed to restrictions of its sovereign powers within the framework of this system.

157

2. The transfer of sovereign powers at issue here is also compatible with Art. 24(1) of the Basic Law in substantive terms; it did not require a prior change in the wording of the Basic Law, nor does it breach the limits of Art. 79(3) of the Basic Law.

158

a) Art. 24(1) of the Basic Law does allow the Federal Republic of Germany to provide territory in the context of a defensive alliance for the stationing of allied armed forces and to permit command structures for a deployment of these armed forces that serves the defence purpose of the alliance.

159

In the past, part of the nature of traditional military alliances was that armed forces of other allies had rights of passage, residence and deployment on the territory of an ally without being subject to the sovereign authority of that ally or integrated into its armed forces. This may have led to temporary restrictions of the sovereignty of the ally concerned, but such restrictions were an essential prerequisite for the protection said ally sought from the alliance – for example, because it lacked sufficient military power of its own.

160

Today, too, the stationing of foreign armed forces and the transfer of sovereign powers this entails serve to ensure the Federal Republic of Germany’s protection against attacks and thus serve to uphold the integrity of its constitutional order and its sovereignty. This was evidently assumed both by the legislator, when it gave its consent to the alliance system, and by the Federal Government, when it made its declaration of consent challenged here. At the oral hearing, the Federal Government, represented by the Federal Minister of Defence, set out its view that the Soviet side was engaged in an arms race which had neither been provoked by Western defence measures nor justified by Soviet security interests, and which, in particular, called into question the strategic unity of the alliance in Europe; in view of the Soviet position on the question of establishing an approximate balance in medium-range weapons, the alliance had had no choice but to begin now with the deployment of the weapon systems in question, which had been agreed to in 1979.

161

It is for the Federal Government to make assessments and evaluations of this kind. The only limit set on this power by the Basic Law is in the case of manifest arbitrariness. If this absolute limit is not crossed, the Federal Constitutional Court does not conduct a review of whether assessments or evaluations of this kind are correct, given that no legal standards exist in this respect; rather, the Federal Government must assume political responsibility for these assessments and evaluations.

162

In the present case, it cannot be found that constitutional limits have been breached.

163

b) Under Art. 24(1) of the Basic Law, a decision of whether and to what extent sovereign powers are to be transferred to an international organisation may only be taken by the legislator. The transfer is carried out through acts of international law; the authorisation to do so must be given ‘by a law’. This constitutional requirement has been satisfied in the present case by the Act on the 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 by the Act concerning 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 be seen in the context of the alliance system, of which the underlying treaties form part.

164

The Convention on the Presence of Foreign Forces in the Federal Republic of Germany is a legal basis for the stationing of allied armed forces on German territory ([…]). The authorisation to station armed forces on German territory was granted to the parties of this Convention in view of their role as members of NATO and the obligations entailed by it. This follows from the historical context of the conclusion of both treaties with the Federal Republic of Germany; the wording of the Convention on the Presence of Foreign Forces, too, in particular its Art. 1(4) and the explanatory memorandum to the Government’s draft of the act of approval (loc. cit., in particular the preamble) also indicate that this was intended by the parties.

165

The challenged declaration of consent is covered by statutory authorisation:

166

aa) (1) The North Atlantic Treaty does not contain any provisions that expressly grant the powers set forth in the declaration of consent to NATO. However, it does not follow that the requirements of Art. 24(1) of the Basic Law have not been satisfied in the present case. As the Senate held in its order of 23 June 1981 (BVerfGE 58, 1 <36 f.>), the substantive scope of the requirement of a statutory provision (Gesetzesvorbehalt) in Art. 24(1) of the Basic Law must also be determined in view of the manner in which organisations at international level within the meaning of this provision are established and work. This typically occurs in the framework of an integration process. Over the course of this process, several individual acts of implementation are necessary to bring about the situation sought in the founding treaty. These may take diverse legal forms. Even where the founding treaty itself did not determine the contents, form and timing of the integration process, no specific law within the meaning of Art. 24(1) of the Basic Law is required for each individual step of implementation from the outset. Such laws can be dispensed with where the founding treaty, endorsed by an act of approval, set out the future process of implementation in a sufficiently specific manner. That said, fundamental changes to the integration agenda and its implementation are not covered by the original act of approval under Art. 24(1) of the Basic Law. The standards regarding such sufficient specificity must be derived from the particular nature of the matters set out in the founding treaty in light of the legal interests protected by Art. 24(1) of the Basic Law and of the latitude granted by the provision and its practicability at international level.

167

(2) Measured against these standards, the transfer of powers for the use of the weapon systems stationed in the Federal Republic of Germany by means of the challenged declaration of consent given by the Federal Government did not require a separate law under Art. 24(1) of the Basic Law.

168

In the preamble to the North Atlantic Treaty, the parties resolved to unite their efforts for collective defence and the preservation of peace and security. In order more effectively to achieve the objectives of the Treaty, they agreed in Art. 3 that they separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack. Art. 9 provides that the NATO Council shall establish immediately a defence committee which shall recommend measures for the implementation of Art. 3 and Art. 5, with the latter including a mutual defence clause in case of armed attack. The aforementioned preamble and provisions show that one of the fundamental premises of the North Atlantic Treaty is the possibility of a progressive organisation and integration of defence efforts and defence forces for the protected territory. That this agenda set out in the Treaty is not described in greater detail and the political and legal process in which it can be realised is not more precisely defined is due to the particular nature of the subject matter covered by the Treaty. The proper organisation of joint defence and the measures necessary to this end cannot be conclusively determined in advance given the ongoing changes in the political and strategic environment the allies face individually and together, such as changes in the political and strategic forces, or the notion of what constitutes a possible aggressor, and in view of the constant change in other circumstances of significance for security policy, such as the advancement in weapons technology and weaponry from whatever side. Detailed Treaty provisions on strategic concepts and plans, or the organisation, type, scale and stationing of armed forces and their weapons as well as command structures could very quickly become obsolete under the current circumstances in view of the Treaty’s objective of guaranteeing security and peace for the parties. The subject matter of the alliance treaties is characterised by such dynamic developments. If the purpose of the alliance is to be achieved, it must be possible to take rapid and adaptable measures for which the content and legal forms cannot be fully determined in advance. Only relatively open provisions, such as the ones contained in the North Atlantic Treaty, are suitable for achieving this aim. In light of the foregoing, the North Atlantic Pact is a body of treaties that delineates the possible integration agenda within the meaning of Art. 24(1) of the Basic Law in a sufficiently specific manner. Measures taken within this alliance framework do not require separate consent in the form of a law pursuant to Art. 24(1) of the Basic Law, they also do not require an ‘amendment’ of the statutory authorisation. So is the case here.

169

The agenda of military integration was sufficiently clear to the legislator when it adopted the Act on the Accession of the Federal Republic of Germany to the Brussels Treaty and the North Atlantic Treaty. At the Conference of the Nine Powers held in London from 28 September to 3 October 1954, the powers present at the conference, all members of NATO, agreed under Section IV of the Final Act to recommend that NATO strengthen its organisation by providing that all forces of NATO countries stationed in Europe in principle ‘shall be placed under the authority’ of SACEUR. When the Bundestag adopted its decision, it was aware of the wording of this agreement (cf. Bundestag document, Bundestagsdrucksache – BTDrucks. II/ 1000, p. 50), and of the resolution of the North Atlantic Council to implement this section of the Final Act of the London Conference (cf. BTDrucks. II/1061, p. 61 ff.). The Federal Government’s explanatory memorandum to the Draft Act on the Accession of the Federal Republic of Germany to the Brussels Treaty and the North Atlantic Treaty makes reference to ‘integrated forces’ (BTDrucks. II/1061, p. 47), and the Special Report of the Committee on European Security Matters mentions a ‘uniform organisation’ through integration and joint command posts (BTDrucks. II/1200, p. 50; […]).

170

Nor did the Bundestag, in adopting this Act, express explicit or implicit reservations as to the type and scale of the weaponry to be provided to forces or as to the potential powers of NATO regarding the use of certain types of weapons, in particular nuclear weapons, from German territory. In particular, when adopting this Act, the legislator was aware of the storage of nuclear weapons on German territory ([…]). There are no indications in the act of approval that the Bundestag meant to rule out powers of NATO organs to use nuclear weapons stationed on German territory, or to make such use subject to a separate law.

171

(3) Even if it were presumed that the applicant’s submissions were correct, in that there was a new strategic dimension to the weapon systems in question and their deployment on German territory, this would not amount to a fundamental change of the NATO agenda to which the legislator consented when the Federal Republic of Germany joined NATO. The basic objective of NATO as a defensive alliance, as laid down in the aforementioned treaties, remains unaffected. The legislator did not fail to see that over the course of such a long-term defensive alliance (cf. Art. 13 NATO Treaty, Art. XII(3) Western European Union Treaty) risks and strategic situations can change – sometimes quite rapidly – given the aforementioned dynamic political situations and technological developments and that doctrines and strategies regarding defence policy and the military must remain adaptable if the purpose of the alliance is to be achieved. It cannot be inferred from the Basic Law or the acts of approval of the aforementioned treaties that acts of the Federal Government in the framework of the alliance system, such as those challenged by the applicant, therefore require specific statutory authorisation. The applicant has not asserted that the Federal Government’s declaration of consent reflects its intent to launch an attack and that therefore this declaration both violated Art. 26(1) first sentence of the Basic Law and exceeded the authorisation framework of the aforementioned acts of approval; nor are there any indications to this effect. Beyond these legal limits, however, it is for the executive, which has the power to make assessments and act in foreign and defence policy matters, to assess such situations, developments and risks and to make decisions. It is irrelevant in this respect whether and to what extent the legislator could impose particular statutory requirements on the executive for such assessments and decisions in light of Art. 20(2) of the Basic Law – it did not do so here.

172

In particular, the fact that the Federal Government does not share the applicant’s view that the purported new strategic dimension of the weapon systems in question and the computer-controlled and thus error-prone warning systems that are allegedly necessary considerably increase the risk of a pre-emptive nuclear attack by the Soviet Union or the risk of accidentally causing nuclear war does not exceed the constitutional limits of the executive powers of assessment.

173

In the Federal Government’s view, if the Soviet Union intended to launch a pre-emptive nuclear attack, it would have to expect a counterattack by NATO; the Soviet Union’s precautions against such a counterattack would have to be so extensive that they could not remain hidden from Western reconnaissance. According to the Federal Government, there was therefore no increased risk of a pre-emptive attack by the Soviet Union on the weapon systems stationed in the Federal Republic of Germany, especially since the mobility of these systems also ruled out the possibility that they could all be disabled by a surprise attack. No constitutional deficiencies of this assessment are ascertainable; nor does it violate the legal obligations arising from the NATO treaties.

174

The same applies to the Federal Government’s view that the technical features of the weapon systems in question increased their deterrent effect and, precisely for this reason, did not lower the threshold for nuclear war, and its view regarding the question of whether the weapon systems’ stationing would make NATO capable of launching a decapitating or paralysing strike against the Soviet Union. At the oral hearing, the Federal Minister of Defence stated that NATO was not interested in dealing with conflicts through fighting, but intended to settle conflicts by political means as quickly as possible, and was therefore committed to keeping open communication channels with leadership of unfriendly states; this statement rules out the finding that this assessment is erroneous under constitutional law.

175

This also applies to the Federal Government’s view that error-prone technical systems would not result in ‘accidental war’. In the past, errors in technical systems have not led to critical situations, let alone serious preparations for the use of nuclear weapons. According to the Federal Government, there were no indications whatsoever that plans were underway, whether in NATO states or in the Soviet Union, to leave the final decision on the use of nuclear weapons to a computer-controlled automatic mechanism. Agreements between the Soviet Union and the United States of America have served to prevent accidental outbreaks of war. No constitutional errors are evident with regard to this assessment; it is not for the Federal Constitutional Court to decide whether it is correct in other respects or whether other assessments are possible.

176

Nor does a fundamental change of the NATO agenda that the legislator consented when it decided to join the alliance system result from the applicant’s view that the Federal Government, in giving its consent, brought about a situation in which the President of the United States could make German territory the basis for military reprisals against the Soviet Union if a Soviet attack on the United States of America were launched on the territory specified in Art. 6 of the North Atlantic Treaty. According to the applicant, this would take competences away from the Federal Government, the Bundestag and the Bundesrat and hand them over to the organ of a foreign state, which could then bring about the prerequisites for the declaration of a state of defence within the meaning of Art. 115a of the Basic Law and thereby force upon the Federal Republic of Germany the decision to assist its partners by military means within the scope of the mutual defence clause.

177

The legislator that gave its consent to Germany’s accession to NATO was aware of the possibility of such a situation, in view of the Convention on the Presence of Foreign Forces and the presence of US forces on German territory based thereon (see bb) below), just as the Constitution-amending legislator of 1968, which inserted Art. 115a into the Basic Law, was aware of it (BGBl. I p. 709). It is a central plank 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 parties is to be considered an attack against them all and triggers the mutual defence obligation. This notwithstanding, there is no reason to doubt that the parties to such a conflict will do everything possible to limit it, including and especially with regard to nuclear weapons; this is in keeping with the spirit of the alliance. The Federal Government’s consent to the stationing of new weapons on German territory did not change this. The legal possibility for the Federal Republic of Germany to assess whether something constitutes an attack and which measures it considers to be ‘necessary’ in such a case to restore and maintain the security of the North Atlantic territory is not curtailed; likewise, the competences granted to the Bundestag by Art. 115a of the Basic Law are not diminished. The actual alternatives available to the Federal Republic of Germany may be very limited in such a scenario; however, this is not because its legal possibilities have been curtailed, but because of the factual situation and the circumstance that, as can be inferred from the spirit of the Convention on the Presence of Foreign Forces, military defence measures of an attacked party may also be authorised from German territory. It cannot be ascertained that the challenged declaration of consent brought about a fundamental change to NATO’s agenda in this respect.

178

This outcome could also not be changed by the view that the challenged declaration of consent de facto enabled the United States to use the weapon systems in question from German territory in a manner contrary to international law and the principles of the alliance by, for example, using them against attacks not covered by the territorial scope of NATO. Notwithstanding the question of how such an assumption could be refuted by a law authorising the approval as called for by the applicant, it was for the Federal Government to assess whether a NATO partner would comply with international law and the legal limits of the alliance and the consent given within its framework. By consenting to the deployment of the weapon systems, the Federal Government clearly considered that this would be the case. The Bundestag did the same when it consented to the treaties in 1955 with the knowledge that tactical nuclear weapons were stored on German territory. The applicant did not state any facts that would suggest that this assessment is erroneous under constitutional law; nor can such facts be otherwise ascertained. The Federal Government could base its assessment on the long-standing conduct of the alliance and its parties, which does not urgently and obviously suggest another conclusion. In Europe, no armed interventions against any state have been made by the alliance and its parties, whether with conventional or with nuclear weapons. The mere possibility that parties to international treaties can act in breach of these treaties cannot be ruled out. If the Basic Law precluded such situations in order to prevent potential breaches of international law, then the Federal Republic of Germany would be largely unable to act with regard to international treaties.

179

bb) The consent regarding the stationing of new weapon systems on German territory given in the framework of the alliance system is also within the limits of the authorisation provided by the act of approval of the Convention on the Presence of Foreign Forces, which must be considered in the context of the alliance system.

180

These weapons are handled by US forces assigned to NATO in the Federal Republic of Germany; the Convention on the Presence of Foreign Forces is a legal basis for their presence in Germany. Whether these weapons increase the effective strength of these forces within the meaning of Art. 1(2) of the Convention on the Presence of Foreign Forces need not be decided here. This is because the Federal Government in any case gave its consent, which is required pursuant to the Convention on the Presence of Foreign Forces.

181

This consent is within the limits of the authorisation given by the act of approval of the Convention on the Presence of Foreign Forces. This follows from the same considerations as those set out for the act of approval of the North Atlantic Treaty. The stationing of allied troops and their weapons on German territory is the essential purpose of the Convention on the Presence of Foreign Forces.

182

cc) In addition, it must be noted that the Constitution-amending legislator, knowing about Germany’s membership of NATO, did not see any reason, particularly when including an express requirement of a statutory provision by inserting Art. 80a(3) into the Basic Law by the Act of 24 June 1968 (BGBl. I p. 709) and also when inserting Art. 45a (old version) and Art. 87a (old version) by the Act of 19 March 1956 (BGBl. I p. 111), to include a special requirement of a statutory provision in the Basic Law to which declarations of consent of the type challenged here would be subject. The legislator at the time was clearly aware of the stationing of US forces with nuclear weapons in Germany, in the framework of NATO, and of the fundamental way decision-making structures and lines of command are designed within NATO. Due to the need for the most effective defence possible, the details of such structures and lines of command are classified and subject to ongoing development; insofar as these details were explained to the Federal Constitutional Court by the respondent in the oral hearing, it cannot be ascertained that they amount to fundamental changes to the integration agenda consented to by the legislator upon Germany’s accession to NATO.

IV.

183

The declaration of consent regarding the deployment of medium-range nuclear missiles on German territory also does not violate rights of the Bundestag on the grounds that this declaration amounts to a decision of significance for the state as a whole in the sense of a key political decision. The fact that this consent is an act that is significant for the Federal Republic of Germany as a whole does not give rise to a special legislative power of the Bundestag in light of the express provisions on the competences for foreign affairs. Nor does such a power, which would override the provisions on competences, arise from the Basic Law’s principle of democracy. Under the democratic, parliamentary order laid down by the Basic Law, the government has democratic legitimation, in both institutional and functional terms (BVerfGE 49, 89 <124 ff.>). Moreover, it has democratic legitimation in terms of its members, and is subject to democratic, parliamentary oversight.

184

The Basic Law does not provide for an all-encompassing requirement of a statutory provision, nor does it contain a rule on competences stipulating that all ‘objectively essential’ decisions must be taken by the legislator. Art. 59(2) first sentence of the Basic Law and Art. 24(1) of the Basic Law are exhaustive with regard to the matters covered; the requirement of a law therefore cannot arise independently from the aspect of a decision being essential, for example in the sense of a decision of considerable political scope. The concept of a ‘guarantee of correctness’ provided by the parliamentary process due to the comparably transparent decision-making processes involved also cannot give rise to a change in the division of competences expressly provided for in the Basic Law in favour of Parliament.

185

Therefore, the consent regarding the deployment of US medium-range weapons in the Federal Republic of Germany did not require prior authorisation by the Bundestag in the form of a law from the perspective of either the principle of democracy or the significance of this act for the state as a whole.

186

This does not mean, however, that ‘objectively essential’ decisions can be taken without any involvement of the Bundestag. The Bundestag can make use of its right to ask questions, to debate and to adopt decisions, exercise its powers of scrutiny and its budgetary powers and thereby influence the Government’s decision-making, or bring down the Government by electing a new Chancellor (Art. 67(1) first sentence of the Basic Law). Moreover, in the present case, the Bundestag dealt with the question of further armament, including the consent to the deployment of the weapon systems in question, on several occasions, most recently on 22 November 1983, and expressly approved both the intended and the actual declaration of consent by the Federal Government.

V.

187

The parties to the proceedings did not submit for review the question of whether the weapon systems at issue could also be deployed on German territory by the United States without Germany’s consent, making the Federal Government’s consent irrelevant under constitutional law and raising doubts as to whether consent given nonetheless could even violate or threaten to violate rights of the Bundestag under § 64(1) of the Federal Constitutional Court Act. There is therefore no need to review whether Art. 4(2) first sentence of the Convention on Relations between the Three Powers and the Federal Republic of Germany would provide a legal basis for such action. Neither the plans to deploy the weapon systems in question nor the Brussels Decision of the Foreign and Defence Ministers of the NATO States of 12 December 1979 and its implementation in the Federal Republic of Germany were adopted in the exercise of the ‘rights heretofore exercised or held by [the Three Powers] relating to the stationing of armed forces in Germany’ so as to be able to exercise the ‘rights and responsibilities relating to Berlin and to Germany as a whole, including the reunification of Germany and a peace settlement’ reserved in Art. 2 first sentence of the Convention on Relations between the Three Powers and the Federal Republic of Germany. It clearly follows from the statement regarding the meeting of the Foreign and Defence Ministers of the NATO States of 12 December 1979 that at least the stationing of the weapon system discussed in the meeting in the Federal Republic of Germany is not based on rights reserved by the three powers.

VI.

188

The applicant’s request for taking evidence was not granted. The assertions made in nos. 1-5 of this request are, to the extent they are disputed, not relevant for the decision even assuming that they are correct. The assertions made in nos. 6 and 7 constitute political value judgments whose correctness cannot be established by taking the evidence at issue. Matters falling within the powers of assessment of the Government may not be transferred to the sphere of the judiciary by way of a taking of evidence contrary to the principle of the separation of powers.

VII.

189

The decision was taken with 7:1 votes.