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Case:
BVerfGE 66, 39 2 BvR 1160/83 et al " Pershing II and Cruise Missile ... Decision I"
Date:
16 December 1983
Judges:
Zeidler, Rinck, Wand, Dr. Rottmann, Dr.Dr.h.c.Niebler, Steinberger, Träger, Mahrenholz
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. A constitutional complaint against an act of public power, whose unconstitutionality is claimed with reference to an effect brought about by such an act, may only be permis-sibly brought when it appears possible that a holder of public power in the sense of § 90, Paragraph 1 of the Law Concerning the Federal Constitutional Court and Article 93, Para-graph 1, Number 4 a of the Basic Law is reponsible in regard to basic rights for this effect.

2. The responsibility with respect to the Basic Rights of the State german public power connected with the Basic Lawcase as a general principle where an event is fundamentally shaped by the own will of a foreign state independent of the Federal Republic.

Order of the Second Senate of 16 December 1983- 2 BvR 1160/83 -- 2 BvR 1565/83 -- 2 BvR 1714/83 -
in the proceedings concerning the constitutional complaint and the petition for a temporary order.

Against
a) the federal government's approval of installing medium-range Pershing II and cruise missiles equipped with nuclear warheads within the territory of the Federal Republic of Ger-many; that installation was pursuant to the 12 December 1979 resolution of the Foreign and Defense Ministers of the member states of the North Atlantic Treaty Organization (NATO) in Bru-ssels, b) the installation of these weapons in the territory of the Federal Republic of Germany;

alternatively against
a) the lawgivers failure to provide a statutory basis for installing these weapons within the territory of the Federal Republic of Germany,
b) the federal government's failure to initiate a process to provide this statutory basis;
here: Petition for a temporary order.

DECISION:

The petition for a temporary order is denied.

EXTRACT FROM GROUNDS:

A.

The Appellants object to the installation of Pershing II and Cruise missiles equipped with nuclear warheads in the territory of the Federal Republic of Germany.

I.

On 12 December 1979, the Foreign and Defense Ministers of the member states of the North Atlantic Treaty Organization (NATO) reached the decision at a special meeting in Brussels to install American medium-range missiles armed with nuclear warheads in certain NATO countries.

The official statement, published at the end of the meeting, included the following statement regarding the reasons for, and the content of, this decision (Bulletin of the Federal Go-vernment 1979, p. 1409):

3. Over the years the Warsaw Pact has developed a lar-ge, and continually growing, nuclear potential which di-rectly threatens Western Europe and which has strate-gic significance for the European alliance. The situa-tion has been especially aggravated in the last few years by the Soviet decision to implement programs to substantially modernize and strengthen its extensive nu-clear systems. In particular, the Soviet Union deployed SS-20 rockets, representing a meaningful improvement over earlier systems because of their greater accuracy, mobi-lity and range as well as their equipment with mul-tiple--warheads, and it introduced the "backfire-bomber" which is substantially more capable than other Soviet airpla-nes previously designated for continental strate-gic tasks. While the Soviet Union increased its medium--range superio-rity, both qualitatively and quantitati-vely, during this period, the corresponding capacity of the West remained the same. In addition, these Western systems are beco-ming outdated, increasingly vulnerable and, moreover, they include no land-based LRTNF-rocket systems.

4. At the same time, the Soviet Union also moder-nized and increased its short-range nuclear system andsignificantly improved the quality of its conventional armed forces on the whole. These developments occurred before the backdrop of the increasing capacity of the Soviet Union in the intercontinental strategic area and the creation of parity with the United States in that area.

5. These developments have caused serious concern within the alliance because, should they continue, the Soviet superiority in medium range weapons could undermine the stability obtained by the intercontinental strategic systems. These developments could undermine the believability of the alliance's deterrent strategy, accentuating gaps in the spectrum of nuclear responses available to the alliance.

...

7. The ministers have therefore decided to modernize the LRTNF-capacity of NATO through the deployment of American land-based systems. These systems include 108 Pershing II launching devices, replacing the present 'Pershing Ia,' and 464 ground-launched cruise missiles (GLCM). Each of these systems is equipped with only one warhead. All states currently participating in the integrated defense structure will take part in this program. The rockets will be stationed in selected countries, and certain incidental expenses will be born collectively within the framework of existing NATO financial agreements.

...

Referring to the Second Strategic Arms Limitation Treaty (SALTII) between the Soviet Union and the United States, the ministers agreed to support the United States decision to begin negotiating with the Soviet Union to limit medium-range nuclear weapons.

9. On the basis achieved by SALT II and considering the increase in Soviet LRTNF-capacity which makes NATO uneasy, the ministers are of the opinion that certain American and Soviet LRTNF should now be included in the effort to achieve, through arms control, a stable, com-prehensive balance with a lower stockpile of nuclear wea-pons on both sides. This would take up earlier We-stern proposals, and the recently declared willingness of So-viet State President Brezhnev, to incorporate such So-viet and American systems in arms control negotia-tions. The ministers support fully the United States decision, resulting from consultations within the alliance, to ne-gotiate limitations of the LRTNF and to propose to the Soviet Union to initiate, as soons as possible, negotia-tions on the basis of the following guidelines, which are the result of intensiv consul-tations within the alliance:
a) Every future limitation of American systems which are primarily intended for deployment as TNF should be accompanied by a corresponding limitation of Soviet TNF.
b) Limitations of American and Soviet LRTNF should be negotiated bilaterally, step-by-step, within the frame-work of SALT III.
c) The direct goal of these negotiations should be agreement on limitations of American and Soviet land-based LRTNF-missile systems.
d) Each agreed upon limitation of these systems must be compatible with the principle of equality between both sides. The limitations should therefore be formu-lated so as to establish de jure equality in the maximum level as well as in the rights resulting therefrom.
e) Each agreed upon limitation must be adequately verifiable.

Referring to the so-called Harmel-report, the official statement finally declared (aao, p. 1410):

11. The ministers have decided on both of these parallel and complementary manners of proceeding in order to prevent the growth of the Soviet TNF from bringing about an arms race in Europe, while never-theless maintaining the functional ability of NATO's deterrent and defense strategies and thereby continuing to guarantee the security of its member states.

a) A decision to modernize, including a binding commitment to deployment, is necessary in order to fairly meet NATO's deterrence and defence needs, to react is a credible manner to the one-sided TNF-deploy-ment by the Soviet Union, and to establish the foun-dation for serious negotiations about TNF.

b) Successful arms control which limits the Soviet growth, can strengthen the security of the alliance influence the extent of NATO's TNF needs, and -- in harmony with the basic NATO policies of deterrence, defence and détente, as stated in the Harmel report -- promote stability and the easing of tension in Europe. NATO's TNF-needs will be considered in the light of the concrete results of negotiations.

After completing preliminary talks, the Soviet Union and the United States began official negotiations to limit medium-ran-ge nuclear neapons on 30 November 1981 in Geneva. So far they have been without sucess.

The "countries chosen for deployment," which are named in the official announcement concerning the meeting of 12 December 1979, include Great Britain, Italy, and the Federal Repu-blic of Germany. The Federal Government in office in 1979, which in the opinion of the present Federal Government agreed on 12 December 1979 to the resolution passed on that day in Brussels, stated at the 194th session of the Eighth Bundestag that, in its opinion, the Federal Republic, in whose territory108 Pershing II and 96 Cruise missiles were to be installed in accordance with the "Double Resolution" of 12 December 1979, had already agreed to a later deployment. The Federal Govern-ment then in office repeated this statement before the Tenth Bundestag on the 15th and 16th of September, 1983, and decla-red that the decision to install the weapons had been made by the resolution of 12 December 1979. The Federal Chancellor explained at the Thirty-Fifth Session of the German Bundestag on 21 November 1983.

Our security and the protection of our freedom require us to begin the deployment of new American medium-range missiles.

...

The Bundestag has dealt with the question of the deployment of American medium-range missiles in the territory of the Fe-deral Republic of Germany on several occasions. The problem of the nuclear medium-range missiles was thoroughly deliberated in the Eighth Bundestag before and after the meeting of theForeign and Defense Ministers in Brussels on 12 December 1979. The Ninth Bundestag approved on 26 May 1981 a resolu-tion spon-sored by parliamentary groups of the SPD and FDP parties, the penultimate section of which reads:The Bundestag supports the Federal Government's con-si-stent and timely realization of both parts of the resolu-tion of 12 December 1979. Furthermore, it emphasizes the Double Resolution's observation that the West will determine the requirements for the need of NATO medium-range missiles in the light of the concrete results of the negotiations.

On 22 November 1983 the Tenth Bundestag adopted by a vote of 286 to 225 with one abstention a resolution sponsored by parliamentary groups of the CDU/CSU and the FDP, which reads:

The Bundestag regrets that the Geneva Negotiations concerning medium-range missiles (INF) have not produced results, despite the great efforts of the USA and its allies. Therefore, in order to ensure the military security and political freedom of Western Euro-pe we need in accord with the NATO Double Resolution a counterweight to the Soviet SS 20 missiles which threa-ten us. For these reasons, the Bundestag supports the Federal Government's decision to commence the statio-ning process in a timely fashion and in accordance with the Government's duty under the second part of the NATO Double Resolution.

II.

The constitutional complaint of the appellants are directed against the government's agreement to install medium-range Per--shing II and Cruise missiles armed with nuclear warheads in the territory of Federal Republic of Germany, in accordance with the resolution passed by the Foreign and Defense Mini-sters of the NATO countries in Brussels on 12 December 1979. The appellants claim ... the Federal Government's consent to the resolution affects them directly and currently as indi-viduals.

The Federal Government's agreement to install the new wea-pons violates their right to life and bodily inviolability(Article 2 [2], [1] of the Basic Law). It is generally recogni-zed that the basic right which follows from Article 2 (2), (1) of the Basic Law may be infringed upon when life and health are not violated, but only endangered. Deploying Pershing II and Cruise missiles represents a disproportionate infringement on the right to life and bodily inviolability.

In the alternative the appellants object to a legislative omission. They claim that Article 2 (2), (2) of the Basic Law has been vio-lated because the legislature has not yet agreed to the in-stallation of the new weapons. According to Article 2 (2), (3) of the Basic Law, the right to life and bodily invio-lability may only be encroached upon pursuant to a law pro-claimed after hearing from all those concerned.

Article 2 (2), (1) of the Basic Law is violated by deploy-ment in as far as the ban laid down in the U.N. Charter on any threat or use of force directed against the political invio-lability or politi-cal independence of a country, or otherwise inconsistent with the goals of the United Nations, has been violated.

Finally, "the threat of atomic destruction" violates Arti-cle 1 (1) of the Basic Law. There are good reasons for belie-ving that development of armaments up to now is leading toward destruc-tion.

The appellants make this motion in order to establish that the Federal Government's agreement to install medium-range Per-shing II and Cruise missiles in the territory of the Fede-ral Republic violates their basic rights under Article 1 (1); Arti-cle 2 (2); and Article 2 (1) of the Basic Law, and, therefore, should be revoked.

B.

The constitutional complaints are in substantial agreement as far as their expositions of facts are concerned. They pre-sent the same questions of law and are, therefore, treated to-gether in a single decision concerning the motions for the de-cree of a temporary injunction.

C.

The motions are dismissed.

The constitutional complaints are inadmissible.

1. As far as the appellants can be interpreted as assailing the conduct of non-German public power in connection with in-stalling Pershing II and Cruise missiles, their constitutional complaint is inadmissible. It is true that the protected sphe-re of human rights including the basic rights and freedoms re-cognized in the Basic Law applies against every form of so-ve-reign power. However, Article 93 (1), (4a) of the Basic Law and § 90 of the Law Concerning the Federal Constitutional Court grant the constitutional complaint as a legal remedy only against German state public power which derives from the Basic Law (compare BVerfGE 58, 1 [27], with further evidence).

2. As far as they attack the conduct of German sovereign power, it follows neither from the appellants' allegations nor from other circumstances that the asserted endangement was caused by German public power and therefore falls within the protected realm of basic rights claimed to have been injured by German public power.

a) The appellants claim that installing medium-range Per-shing II and Cruise missiles equipped with nuclear warheads in the sovereign realm of the Federal Republic increases the dan-ger for its inhabitants to be killed or injured by a nuclear preemptive strike against the missile sites by the Soviet Union, or by a nuclear "counterstrike" mistakenly caused by a technical failure. The appellants do not claim that the purpo-se of stationing Pershing II and Cruise missiles in the ter-ritory of the Federal Republic is to bring about this dangeror to lead to a war of aggression. Therefore, it has not been shown that there can be a possible injury to their lives and their health by the conduct of German public power, against which the constitutional complaints are directed.

The violation of Article 2 (2), (1) of the Basic Law which appellants claim is not ruled out as a possible violation just because they claim only an endangerment (or imminent injury) of legal values protected by Article 2 (2), (1) of the Basic Law. Although mere thre-ats to basic rights in general lie on the perimeter of con-stitutionally significant impairments of basic rights, they may under certain conditions be considered identical to in-juries to basic rights (BVerfGE 49, 89 [141]; 51, 324 [346f.]). In its decisions the Federal Constitutional Court has not yet decisively defined these conditions. In its decision concer-ning the constitutionality of § 7 (2) of the Atomgesetz, the Federal Constitutional Court stated that in regard to rules such as those a constitutional violation may not be dismissed simply by claiming that the risk of harm does not yet repre-sent a violation of basic rights. Even regulations which lead in the course of their execution to a significant endangerment of basic rights may conflict with the Basic Law(BVerfGE 49, 89 [141]). In an additional decision concerning the peaceful use of nuclear energy it also said that Article 2 (2) of the Basic Law may come into play when preventive safety precautions against fu-ture operational dangers were not taken during the erection of nuclear powers stations (BVerfGE 53, 30 [51]).

Even if one accepts the appellants' assumptions that in-stal-ling Pershing II and Cruise missiles increases the danger of a Soviet nuclear attack against targets in the Federal Repu-blic and, therefore, the risk to legal rights protected by Article 2 (2), (1) of the Basic Law, it is nevertheless questionable whether this injury to appellants' life and limb by the con-duct of German public power which they assail is similar to a viola-tion. In the cases cited in which the Federal Constitu-tional Court has given an opinion concerning the degree of in-tervention for endangerment of basic rights, one could draw certain not com-ple-tely doubtful assumptions concerning the possibility that the dangers asserted would actually occur. In those cases the es-sential sources of risk were susceptible to examination by scien-tific methods, even if such methods were naturally condi-tioned upon and limited by the state and manner of knowledge at the time. In the present case, on the con-trary, there is no suita-ble, reliable process by which the degree of increase in the danger to appellant's life and limb could be ascertained judi-cially. The controlling sources of this endangerment are the decisions of a foreign, sovereign state in relation to the ge-neral world political situation and changing political and mi-litary relations. Judicially verifi-able findings concerning such things cannot be taken in advan-ce under these circumstan-ces. Moreover a possible impairment of the basic rights which they complain were violated does not fall into the protected sphere of basic rights directed against the conduct of German public power; this, however, is the con-duct which the appel-lants have attacked.

b) By the very facts which appellants assume, there can be no question of either an intended or a direct endangerment of the right to life and bodily inviolability as a result of the Federal Government's agreement to install and deploy Pershing II and Cruise missiles in the territory of the Federal Repu-blic. Appellants do not contend that the goal of these acts is to create the danger they allege. By the very facts they assu-me, the direct threat to their protected legal rights under Article 2 (2), (1) of the Basic Law arises from the nuclear potential of a third state which is not a member of the NATO alliance, not from the weapons to be installed in the Federal Republic.

It is true that there might be a question of an indirect con-sequence of the conduct of German state power in regard to the danger the appellants allege; such danger might come within the protected sphere of Article 2 (2), (1) of the Basic Law as an actual im-pairment. However, only if at least two require-ments existed would there be a consequent impairment by German public power affecting the protected sphere of the right to life and bodily inviolability. First of all, the conduct which appellants as-sail must have caused this danger; secondly, the creation of this danger must be attributed to public power in the sense of § 90 (1) Federal Constitutional Court and Article 93 (1), (4a) of the Basic Law. A constitutional complaint against an act of public power, whose unconstitu-tionality is asserted with reference to an effect brought about by such an act, may only be permissibly brought when it appears possible that a holder of public power in the sense of § 90 (1) Federal Constitutional Court and Article 93 (1), (4a) of the Basic Law is responsible in regard to basic rights for this effect.

As legally controlling criteria are lacking, it cannot be established by a constitutional court whether or not the con-duct of German public power which appellants assail will have any influence on those decisions of the Soviet Union which might or might not bring about the military measures (a preven-tive or responsive nuclear strike) appellants fear. Such esti-mates are the duty of the federal organs responsible for the foreign and defense policy of the Federal Republic. Within the intended goals of the Basic Law, especially as they have been expressed in the present context in Article 1 (2) and Ar-ticle 24 (2) Basic Law and within the scope of what is permissible under inter-national law, the constitutional competence of such organs for foreign and defense policy includes the competence to de-fend the Federal Republic effectively. It rests on their poli-tical decision and responsibility to decide what measures are pro-mising for this purpose. In so far as areas of risk which can-not be estimated remain, as is often the case, they must be included in the deliberations of constitutionally re-sponsible political organs of the Federation and answered poli-tically. It is not the function of the Federal Constitutional Court beyond legally standard intentions in this area to sub-stitute its opinions for the opinions and deliberations of the compe-tent political organs of the Federation. This also applies to the question of in what manner the State's objective legal (objektivrechtlichen) duty of protection regarding basic rights in the sphere of foreign and defense policy in relation to foreign states is satisfied. In light of the fact that the dangerous state of affairs which appellants presume depends significantly on the political volition of a foreign sovereign state in connection with the entire global political situa-tion, the Federal Constitutional Court cannot judge by legally con-trolling criteria whether the conduct of German public power which appellants have assailed is to be judged decisive for the creation of this dangerous state of affairs, or whe-ther it is at least contributory and therefore causal. It is quite possible that the danger of a Soviet nuclear attack, as the appellants fear it, existed already before the Federal Govern-ment's agreement to station or before the deployment it-self, or will come into being independent of the deployment. It can also not be judged by legal standards whether it is correct to say that the development of the danger of a Soviet nuclear attack represents a change of existing circumstances "legally" connected according to empirical knowledge with the conduct that appellants censure.

But even if one assumes such an empirical legal connection, the new, dangerous state of affairs which appellants assume cannot be constitutionally attributed to the Federal Republic. This is so because this feared state of affairs was decisively brought about by an independent decision of organs of a foreign sovereign state which are not subject to German sovereign po-wer.

It need not be decided here whether and if need be in what cases the responsibility of the Federal Republic for certain results can remain in effect despite the "intervention" of a foreign state. In any event, not absolutely every effect of the conduct of a foreign state related to the Federal Repu-blic's own previous conduct may be attributed to the responsi-bility of the Federal Republic. The effect of an act such as the Federal Government's agreement to install Pershing II and Cruise missiles in the territory of the Federal Republic can-not be attributed to sovereign power connected with the Basic Law , if such sovereign power did not have control over the onset of this effect. If the Federal Republic is prevented on legal and practical grounds from influencing by control of ap-parently decisive circumstances a course of events leading to intervention in a constitutionally protected legal value, the effect of this course of events cannot be constitutionally at-tributed to it as the result of its own conduct. The consti-tu-tional responsibility of the sovereign power connected with the Basic Law and the protected sphere of basic rights, in as far as it exists in relation to this responsibility, cease as a general principle where an event is fundamentally shaped by the will of a foreign state independent of the Federal Repu-blic (compare also BVerfGE 55, 349 [362f.]; 57, 9 [23f.]).

The danger by which appellants see themselves threatened cannot be attributed to German sovereign power under the given circumstances. The circumstances which appear to be an essen-tial requirement for the occurrence of this danger are removed from a decisive exercise of influence by the Federal Republic. In view of the fact, which the appellants do not dispute, that there are no intentions of attack underlying the conduct as-sailed by the constitutional complaints, the most efficacious cause of the endangering of life and limb which appellants as-sume must be judged to be the decision of the Soviet Union to launch a nuclear preventive strike in time of crisis against Pershing II and Cruise missile sites, and, as appellants say, to rely on a technical system prone to failure in deciding whether to launch a nuclear "counterstrike". The acts of Ger-man sovereign power which appellants assail would appear to be one of the prerequisites of an assumed dangerous state of af-fairs for which the constitutional responsibility of German sovereign power cannot be founded. Its essential cause would be the independent action of a foreign state in the domain of German sovereign power. The Federal Republic could control this action neither on legal nor on factual grounds. Inter-ference with the life and limb of an individual against which the governmental organs of the Federal Republic cannot protect him, because of a lack of power of action, may not be attri-buted to the Federal Republic. A different interpretation would have to entail that the Federal Republic must comply on constitutional grounds with the policies of foreign states con-cerning a con-stitutional "co-responsibility" for threatened violations by a foreign state of constitutionally protected legal values regard-ing lawful political conduct on the part of the Federal Repu-blic. This cannot be inferred from the Basic Law.

c) A violation of the protected sphere of Article 2 (2), (1) of the Basic Law by the conduct of German public power which appellants assail is ruled out according to their expo-sition of the facts. Therefore, there is also no possible vio-lation of Article 2 (2) of the Basic Law by the failure to provide a legal basis for these acts, which appellants one through five and seven through seventeen have assailed in the alternative. The same is true of the vio-lation of Article 1(1), (1) of the Basic Law which appellants one through five have asserted.

d) Similarly inadmissible is the objection of appellant one that Article 2 (1) of the Basic Law has been violated by the violation of norms of objective constitutional law (des objek-tiven Ver-fassungsrechts). It is not known how a subjective le-gal status (subjektive Rechtsstellung) protected by Article 2 (1) of the Basic Law ve-sted in the appellants would be encroa-ched upon by the omis-sion or act they assail. In the present case it cannot be jud-ged whether objective constitutional law (objektives Verfas-sungsrecht) has been violated in connection with the NATO "Double Resolution".

e) It can also not be established that the agreement to in-stall missiles equipped with nuclear warheads, or the place-ment itself, for defensive purposes and especially to deter a potential opponent who also has atomic weapons at its disposal from attacking the Federal Republic or an ally, violates a ge-neral principle of international law in the sense of Article25 of the Basic Law. This is true irrespective of the question of whether a rule protecting an individual is involved on which the indi-vidual could rely in the proceedings of a constitutio-nal com-plaint in connection with Article 2 (1) of the Basic Law. General principles of international law in the sense of Article 25 of the Basic Law must be based on the general, esta-blished practice of states, and must be practiced legally in the conviction that such conduct is lawful (compare Interna-tional Court of Justi-ce, Reports 1969, p. 41ff. North Sea Continental Shelf Ca-ses; BVerfGE 46, 342 [367], with further evidence). The actual conduct of nations with nuclear weapons at their disposal, such as the Soviet Union, the United States of America, or Great Britain, does not substantiate a general practice and legal conviction that it is forbidden by general international law to keep on hand missiles equipped with nucle-ar warheads for defensive purposes, especially in order to de-ter a possi-ble enemy already possessing nuclear weapons from using them.

Judges: Zeidler, Rinck, Wand, Dr. Rottmann, Dr.Dr.h.c.Niebler, Steinberger, Träger, Mahrenholz

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