NATO Strategic Concept (German Participation) Case

Abstract

Treaties — Conclusion and operation — Definition of treaty — Whether including amendments to treaties — Whether including acts of organs of international organizations — Indicative factors establishing existence of treaty — Presence of ratification clause — Objective factors indicating intention to create international legal obligations — Whether possible to imply amendment to treaty in absence of such factors — Nature of subject matter — Wording consisting primarily of general declarations of intent and analysis of political situation — Relevance of fundamental political significance of agreement for Member States

Treaties — Conclusion and operation — Constitutional limitations — Treaties regulating political relations — Requirement of parliamentary legislative approval — Basic Law of Federal Republic of Germany, Article 59(2) — Commitments falling below level of conclusion of treaty — Whether requiring approval of legislature — Concretization of openly formulated treaty provisions not requiring approval — Budgetary implications and troop deployments requiring approval

International organizations — Acts — North Atlantic Treaty Organization (NATO) — NATO Treaty, 1949 — New Strategic Concept 1999 — Whether constituting amendment of NATO Treaty — Significance of express declaration that purpose and nature of NATO Alliance unchanged — Whether Strategic Concept merely constituting development of openly formulated treaty provisions — Distinction between collective self-defence and maintenance of peace and security — Function of NATO under Article 5 of collective self-defence — Non-Article 5 “crisis response” operations — Whether falling outside framework of existing NATO Treaty commitments — Whether existing NATO Treaty framework sufficiently broad to permit its adaptation to changing threats to peace and security following the end of the Cold War

War and armed conflict — Use of force — Collective security — Whether new NATO Strategic Concept consistent with basic aims of NATO Treaty and United Nations Charter — Relationship between NATO and United Nations — Primary responsibility of United Nations for maintenance of international peace and security — Regional role of NATO — Whether provision for “crisis response” operations changing role of NATO from peaceful to aggressive actor

States — Conduct of foreign relations — Participation in systems of collective security — Constitutional legality — Scope of authorization contained in Basic Law of Federal Republic of Germany, Article 24(2) — Whether covering participation by Germany in NATO “crisis response” operations where no territorial threat to Member States — The law of the Federal Republic of Germany