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Statement by the Press Office of the Federal Constitutional Court
Press Release No. 29/1994 of 12 July 1994
Judgment of 12 July 1994 - 2 BvE 3/92, 2 BvE 5/93, 2 BvE 7/93, 2 BvE 8/93
The Second Senate of the Federal Constitutional Court decided in Organstreit proceedings that the Federal Republic of Germany may participate with German armed forces in a deployment taking place in the framework of operations of the North Atlantic Treaty Organization (NATO) and the Western European Union (WEU) intended to implement decisions of the United Nations (UN) Security Council. According to the Court, the same applies to a participation of German armed forces in the United Nations Peace Forces. However, the Court further held that the Basic Law obliges the Federal Government to obtain the German Bundestag’s (generally prior) constitutive approval of the participation of German armed forces in armed operations. The proceedings were instituted upon the request of the SPD and F.D.P. parliamentary groups.
Pursuant to Art. 24(2) of the Basic Law (Grundgesetz – GG), the Federation may, with a view to maintaining peace, integrate into a system of mutual collective security, and in doing so it may consent to limitations to its sovereign powers. The Federal Constitutional Court regards this authorisation by the Basic Law as the constitutional basis also for taking on tasks that typically result from being part of such a system of mutual collective security. Therefore German soldiers may be deployed in the context of UN Peace Forces even if those forces have a mandate for coercive measures. Thus the constitutional concerns expressed by the applicants against a participation of German soldiers in the United Nations’ “UNOSOM H” operation in Somalia, in operations of maritime forces of NATO and WEU in the Adriatic to monitor an embargo imposed by the United Nations on the Federative Republic of Yugoslavia, and in the enforcement of the no-fly order for AWACS aircraft in the air space of Bosnia and Herzegovina imposed by the United Nations. German soldiers may also be integrated into NATO forces that are deployed as part of a United Nations operation. According to the Court, this is covered by the consent of the legislature to the accession to NATO and to the United Nations Charter.
However, after a thorough analysis of the Basic Law’s specifications in terms of the armed forces’ rank within the constitutional system, the Court recognises an obligation of the Federal Government to request the constitutive approval of the German Bundestag for every deployment of German armed forces. According to the Court, this approval must generally be obtained before the deployment. Furthermore, the Bundestag must decide about deployments of armed forces by simple majority. The Court further held that provided such a parliamentary resolution has been adopted, the decision about the modalities of the deployment, in particular with regard to its extent and duration and the necessary coordination within and with organs of international organisations, falls within the competence of the Federal Government. Subject to these constitutional requirements, it is for the legislature to further define the modalities and the degree of parliamentary participation in decision-making.
Due to a tied vote, it was not possible to find a violation of Art. 59(2) GG. The applicants had argued that the deployment of NATO forces under the United Nations’ authority had led to changes of the NATO Treaty. According to the applicants, this, however, required the approval of the legislature pursuant to Art. 59(2) GG. Four members of the Senate, upon whose reasoning the decision rests, take the view that the NATO partners, when taking the challenged measures, had clearly not acted with the intention to expand the NATO Treaty itself by adding new tasks to it. The other four Senate members take the view that the Federal Republic of Germany participated in a dynamic extension of the NATO founding treaty in a way that threatens to undermine the Bundestag’s rights of participation. They take the view that this poses an immediate threat to the rights of the Bundestag.
With this decision, the Federal Constitutional Court acknowledged the permissibility of a deployment of German soldiers on the basis of a United Nations mandate, which had been a controversial issue for a long time. At the same time, however, it determined that the specific deployment in an individual case requires the approval of the German Bundestag.
In their dissenting opinion, Justices Böckenförde und Kruis argued that the application of the F.D.P. parliamentary group should have been rejected as inadmissible.