Germany in Collective Security Systems - Anything Goes?

Markus Zöckler ¹

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For years German politicians and constitutional lawyers have quarrelled over the question whether the Basic Law, the German constitution, permits German armed forces to participate in peace-keeping activities of the United Nations or out-of-area operations of NATO. Political hesitance was quite often couched in constitutional arguments. Gradually the government's resistance against a German military engagement abroad eroded. What once started out as cheque-book diplomacy soon reached the stage where Germany contributed equipment, logistical support and finally even personnel.

International pressure on Germany to get more actively involved in UN operations for keeping or restoring peace increased after German unification and has become a bargaining chip in the considerations about a German seat in the Security Council. Aware of the growing demand to assume greater responsibility in international security affairs, the German Parliament started considering various proposals for constitutional amendments which would establish (or simply clarify) Germany's ability to take part in peace-keeping and military operations abroad.

At the same time, the international security environment is radically changing. NATO and WEU are tentatively searching for a new identity following the end of the cold war and are in the process of developing a new European security strategy. Peace-keeping operations of the UN include enforcement measures; the Security Council authorized the use of force in response to the Iraqi invasion of Kuwait or in the case of Haiti, for example. The reality of international security politics is far removed from the ideal of collective security laid down in the UN charter and everything seems to be in flux.

In this uncertain situation the German Government sent units of the Bundeswehr, the German army, to the peace-keeping operation UNOSOM in Somalia. And when NATO and WEU decided to carry out a coordinated maritime operation in the Adriatic Sea which should monitor compliance with the embargo against Former Yugoslavia on the basis of UN Security Council Resolutions 713 and 757, the German Government contributed to these efforts with warships and surveillance aircrafts. Finally, the government consented to the participation of German air force personnel in integrated NATO units which monitored and enforced the flight interdiction in Bosnia and Herzegovina demanded in Security Council Resolutions 781 and 816.

For the first time Bundeswehr units were involved in NATO and UN operations which included the potential use of force. This new quality of Bundeswehr engagements in international security affairs predictably aroused wild protest by the SPD opposition in Parliament.² In complaints filed with the Bundesverfassungsgericht they argued that the Basic Law - the German constitution - does not authorize such uses of the Bundeswehr and that, at least, Parliament would have had to approve these engagements.³

The Court's decision about these complaints was Solomonic insofar as it gave a little bit to both sides. On the one hand, the Basic Law provides a sufficient general basis for the operations in question, on the other, each specific deployment of the Bundeswehr requires prior approval by Parliament. Since the Court does not present a comprehensive advisory opinion on Germany's future security operations, the judgment leaves many questions unanswered and is open to a narrow or broad interpretation. Which kind of collective security operations are authorized by the Basic Law? Which decisions are left to the political process?

I. Article 24 Basic Law: Germany's Gate to Collective Security

The German constitutional debate over external uses of the Bundeswehr⁴ had focused on the interpretation of Article 87(a)(2) of the Basic Law⁵ and its interrelationship with Article 24(2) of the Basic Law.⁶ Predictably enough, the complainants argued that Article 87(a)(2) prohibits all external uses of the Bundeswehr (except for defence purposes) and that Article 24(2) does not explicitly authorize the involvement of the Bundeswehr, as required by Article 87(a)(2).⁷

The reasoning of the constitutional Court, however, starts from Article 24(2). The Court asserts that the permission to enter collective security systems granted in Article 24(2) also includes the authorization to fulfil all tasks typically arising from the membership in such systems. Hence Article 24(2) also authorizes the involvement of the Bundeswehr in activities performed within the framework and according to the rules of collective security systems.⁸

In the Court's view, this authorization is not affected in any way by the restrictive wording of Article 87(a)(2) because none of the constitutional amendments was intended to prohibit uses of the Bundeswehr which were already permitted by norms of the Basic Law such as for example Article 24(2) (the opinion as a whole relies heavily on arguments from the legislative history which are usually only employed as ancillary arguments). The Court tends to regard the authorization to participate in collective security systems as a lex specialis in relation to the general provision on uses of the Bundeswehr contained in Article 87(a)(2).⁹

With the help of arguments based on the ratio and legislative history of constitutional amendments, the Court managed to bypass the convoluted debate over the meaning and scope of Article 87(a)(2) this time. Of course, the question of constitutional limits for external uses of the Bundeswehr remains a crucial issue for all scenarios where the Bundeswehr could be used outside the framework of a collective security system. In an obiter dictum the Court indicates that the intention of the drafters of Article 87(a)(2) was `to limit the possibilities for internal uses of the Bundeswehr' (emphasis added) by requiring an explicit authorization in the constitution. This should not be interpreted in such a way that all other external uses outside collective security systems would be allowed by the Basic Law. After all, the Court explicitly refuses to elaborate on the interpretation of Article 87(a)(2) itself.

The main problem thus is the definition of the concept `collective security system' and how to determine what kind of activities are performed within the framework and according to the rules of such a system.

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1 Institut für Internationales Recht (Völkerrecht), Ludwig-Maximilians-Universität München.

2 Curiously enough, the FDP fraction, the party of Foreign Minister Klaus Kinkel and a partner in the government coalition, joined the SPD's complaint against AWACS surveillance flights. In a dissenting opinion two judges regarded the FDP's complaint as inadmissible because the FDP had not taken any steps in the cabinet or in the Parliament to stop an operation which they now regard as unconstitutional (Judgment, EuGRZ (1994) 313).

3 An application for an injunction against the participation in AWACS flights had been rejected by the Bundesverfassungsgericht on 8 April 1993 (BVerfGE 88, 173=EuGRZ (1993) 168). In its decision about an injunction against the Bundeswehr involvement in UNOSOM II, the Court demanded that Parliament's approval to the operation is required (BVerfGE 89, 38=EuGRZ (1993) 326).

4 For a general overview of this debate see Kahn, Zöckler, `Germans to the Front? or Le Malade imaginaire', 3 EJIL (1992) 163-177.

5 Art. 87(a)(2) of the Basic Law: `Apart from defence, the Armed Forces may only be used to the extent explicitly permitted by this Basic Law'.

6 Art. 24(2) of the Basic Law: `For the maintenance of peace, the Federation may enter a system of mutual collective security; in doing so it will consent to such limitations upon its rights of sovereignty as will bring about and secure a peaceful and lasting order in Europe and among the nations of the world'.

7 Judgment, sec. A.III.2.a.

8 Judgment, sec. C.I.1.

9 At least the Court does not adopt the position that Art. 24(2) should be regarded as one of the explicit authorizations referred to in Art. 87(a)(2).

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