Residence contract

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Ramstein Air Base , headquarters of the United States Air Forces in Europe : transport aircraft model C-130J

With the Agreement on the Residence of Foreign Armed Forces in the Federal Republic of Germany of October 23, 1954 ( Federal Law Gazette 1955 II p. 253 ), Germany gives eight member states of NATO ( Belgium , Denmark , France , Canada , Luxembourg , the Netherlands , the United Kingdom and the United States of America ) his consent under international law to the continued permanent residence of the foreign stationing forces. With the treaty, the occupation rights of the Allied troops were updated. The residence contract is a consent law that only regulates the principle of stationing foreign troops on German soil. The NATO troop statute, however, deals with the specific design.

background

End of the occupation regime

Federal Chancellor Konrad Adenauer explains in the German Bundestag the conclusion of the Paris Treaties, which include the residence contract

After the end of the Second World War and the unconditional surrender of the German Wehrmacht , it was the declared foreign policy goal of the Allies to prevent another armed conflict with Germany. At the Yalta Conference in 1945, the victorious powers articulated their will that Germany should never again be able to disturb world peace. The guarantee of international security should be achieved with the same and additional means as after the First World War . Therefore, a system was established to defend against possible German attacks. The residence contract is part of this system and accordingly has a strong defensive character, which is characterized by the fact that it grants the former occupiers extensive stationing rights. After protection from Germany was initially the focus of security efforts, the idea of ​​protecting Germany gradually moved into the focus of Western Allied interests.

The residence contract is part of the treaty package of the Paris Treaties, which ended the occupation regime for the Federal Republic of Germany and formed the contractual basis for joining the North Atlantic Treaty and the Western European Union (WEU). The residence of a large number of foreign armed forces in Germany after the Second World War was originally justified by occupation law. However, after a transition period, the three western victorious powers were willing to transfer their stationing rights from a sovereign to a contractual relationship. With the end of the occupation regime on May 5, 1955 on the basis of the Germany Treaty of May 26, 1952 (Bundesgesetzblatt 1955 II p. 303), there would have been no legitimation under international law for the permanent stationing of NATO troops, which is why the western victorious powers made a corresponding regulation necessary deems.

According to Wilhelm Grewe , the former head of the Political Department in the Foreign Office and key advisor to Konrad Adenauer on issues of international law, the victorious powers expressly only wanted to abolish the occupation regime with the conclusion of the Paris Treaties, but not end the occupation itself. In this context he spoke of "occupation limited by treaty." In the opinion of the high-ranking German diplomat and professor of international law, the occupation should only continue for the limited purpose of reunification of Germany and the conclusion of a peace agreement.

On July 9, 1952, Konrad Adenauer presented the facts in the German Bundestag as follows: “The Western powers cannot reasonably be expected to repeal the occupation statute given the tension between East and West; it cannot be expected of them to renounce the legal positions that arose for them from the unconditional surrender of Germany as long as the Federal Republic does not integrate itself into the West. "

purpose

According to the wording of the preamble , the permanent presence of foreign troops in the Federal Republic of Germany is intended to ensure the defense of the free world in view of the current international situation.

US Headquarters for Africa (AFRICOM), Kelley Barracks, Stuttgart - Möhringen

The purpose of the contract is therefore not limited to the circumstances and dangers of the Cold War in the post -war period . The residence contract is therefore open to development and therefore open to a broad interpretation. This objective also corresponds to other institutional and regulatory treaties such as the NATO treaty or the Charter of the United Nations .

The arguments for the permanent stationing of foreign armed forces in the Federal Republic of Germany and their use of domestic military bases changed due to the security challenges of the 21st century. After the terrorist attacks on the United States of America on September 11, 2001 , in addition to resolving regional conflicts (for example in Africa ), the fight against terrorism was seen as a justification for the far-reaching stationing rights.

In 2007, in the light of these changed framework conditions, the United States of America set up the headquarters for the Africa Command (AFRICOM for short) in Stuttgart, which should be legitimized by the residence contract.

Temporal validity

Come into effect

Twelve hours after the Germany Treaty (Bonn Treaty) became binding, the residence contract also came into force on May 6, 1955 in accordance with Article 4.

"The treaty will come into force as soon as all of the signatory states have made this deposit and the Federal Republic of Germany's instrument of accession to the North Atlantic Pact has been deposited with the government of the United States of America."

Termination Clause

According to Article 3 Paragraph 1, the residence contract ceases to be in force once a peace treaty with Germany is concluded (so-called termination clause). With German reunification and the conclusion of the two-plus-four treaty, the treaty would accordingly have lost its validity, since the two-plus-four treaty and the related international agreement constitutes a peace treaty regulation.

Great Britain and the United States of America, however, intended to extend the residence contract beyond the date of reunification and also to extend it to Berlin and East Germany. The extension of the treaty was not in the interests of the Federal Republic of Germany, as the agreement was only concluded for the duration of the continued existence of Allied law and the multinational treaty represents a special treatment for Germany. Such contracts are usually concluded bilaterally.

Nevertheless, the federal government declared to the three Western powers by exchange of notes on September 25, 1990 (Federal Law Gazette II 1990 p. 1390) that the residence contract should continue to exist after the establishment of German unity. Since the exchange of notes does not meet the formal requirements of the German legislative process and the international treaty was not submitted to the German legislature for approval, the legal effect of the exchange of notes remains open.

In the opinion of the Federal Government, the residence contract is also valid after the conclusion of the two-plus-four contract of September 12, 1990. According to the exchange of notes from 1990, it can be terminated with a two-year notice period (exchange of notes of September 25, 1990, BGBl . II 1990 p. 1390 and of November 16, 1990, Federal Law Gazette II 1990, p. 1696). Since the residence contract was expressly confirmed by the federal government in the 1990 agreement, the federal government regards the termination clause as obsolete. The German Bundestag also implicitly adopted this view, as it approved the Unification Treaty.

The residence contract could not be terminated by the Federal Republic of Germany until 1990. This fact justified doubts about the complete sovereignty of Germany under international law .

termination

According to point 3 of the German-Allied exchange of notes on September 25, 1990, each stationed contracting party has the option of withdrawing from the residence contract by notifying the other contracting parties with a period of two years' notice. The Federal Republic of Germany can terminate the residence contract in accordance with the exchange of notes with regard to one or more contracting parties by notifying the contracting parties and observing a two-year period.

Spatial scope

Allied occupation zones in Germany. Territory from June 8, 1947 to April 22, 1949

The residence contract grants the armed forces of the contracting parties of the Federal Republic of Germany a right of permanent residence (ius ad praesentiam) only in the territory of the old federal states . The geographical scope of the contract results from Annex I, Chapter I, Section I, Item 3 of the Unification Agreement of August 31, 1990 (Federal Law Gazette 1990 II p. 889).

The contract is therefore not valid in the new federal states : Brandenburg , Mecklenburg-Western Pomerania , Saxony , Saxony-Anhalt and Thuringia . The scope of the residence contract also does not extend to the federal capital Berlin . The permanent stationing or relocation of foreign armed forces to the area of ​​the former Soviet occupation zone is therefore excluded.

The participation of the Allied contracting parties in military exercises with only a temporary stay in the new federal states and Berlin is permitted. However, the troops of the sending states, including their civil servants, require the approval of the federal government for official activities outside of the old federal states. This was explicitly agreed under international law between Germany and the USA, Great Britain, France, Canada, Belgium and the Netherlands in an exchange of notes on the legal status of the stationing forces in Berlin and the new federal states on September 25, 1990.

Further contract content

Troop strength

United States Armed Forces locations in Germany (US Armed Forces, as of late 2014)

According to Article 1 Paragraph 1 of the Treaty, armed forces of the same nationality and effective strength as at the time these agreements came into force may be stationed in the Federal Republic. Article 1, paragraph 2, however, offers the possibility of increasing the effective strength with the consent of the Government of the Federal Republic of Germany without the participation of the Bundestag. This contract was based on the efforts of the Federal Republic of Germany at the time to prevent a further increase in troop strengths.

However, the effective strength of the individual troops of those entitled to stay was not officially announced to the Federal Republic of Germany at the time the treaty came into force in 1954.

Since the concept of effective strength is neither a legal nor a military term, it requires further interpretation. It is questionable whether, in addition to troop strength, the type of armament of the units and associations can be subsumed under the term effective strength.

The international lawyer Theodor Schweisfurth advocated the thesis that the concept of effective strength only includes the personnel strength of the Allied armed forces, but does not apply to the equipment and armament of the stationed troops. As a justification, he cited the discussions in connection with the negotiations on the Paris Treaties and an exchange of notes between Germany and France as part of the French withdrawal from military integration into NATO.

Contrary to this argument, however, is the fact that Article 6 of Protocol No. II to the WEU Treaty also determines the armament of the armed forces under the effective strength and that the two treaties were drawn up in a close causal and temporal context. The Federal Constitutional Court has also spoken out against a narrow interpretation of the term.

Nuclear weapons

→ Main article: Nuclear weapons in Germany

American B61 nuclear bombs

With regard to the stationing, arming and use of nuclear weapons by the United States of America, the interpretation of the concept of effective strength is of great importance.

The American armed forces had already stationed nuclear weapons in West Germany when the treaty came into force. Accordingly, the residence contract could provide a legal basis for the stationing and use of nuclear weapons in West Germany. The decision of the Federal Constitutional Court from 1984 (BVerfGE 68.1) confirms this argument. The court stated that the consent given within the framework of the alliance system to station the new weapon systems on the territory of the Federal Republic of Germany was within the scope of the authorization of the Consent Act on the residence contract.

It is questionable whether the deployment of new American nuclear weapons systems represents an increase in effective strength. The retired federal judge Dieter Deiseroth speaks out in favor of this assumption, since in his opinion retrofitting weapon systems requires a higher effective power.

According to Article 5, Paragraph 3 of the Two-Plus-Four Treaty, the stationing and relocation of foreign armed forces and nuclear weapons or their delivery systems is limited to the old federal states. This regulation corresponds to the spatial scope of the residence contract.

Drone operations

General Atomics MQ-9 remote controlled drone .

In this context, it is unclear whether US drone control from German soil via relay stations is covered by the residence contract. Especially with regard to the non -conformity of US drone operations for the purpose of targeted killing, which may not be in conformity with international law , the question needs to be clarified, because the American and German legal views diverge on this essential point. It is undisputed that the Federal Republic of Germany must not tolerate military operations contrary to international law or war crimes carried out by foreign troops from German territory. The targeted killing of terror suspects and bystanders by American combat drones outside an armed conflict area, contrary to international law, must be rejected by the Federal Government if it becomes known, at least by means of a protest note , otherwise the Federal Government would possibly be involved in an international offense . Due to its territorial sovereignty, Germany could be obliged under international criminal law in accordance with the Rome Statute of the International Criminal Court (ICC Statute) to actively prevent any deployment of foreign troops in violation of international law. The offense of aiding and abetting under international criminal law within the meaning of Article 25 Paragraph 3c of the ICC Statute requires willful aiding and abetting and assists in the commissioning of a crime. This also includes providing the funds for the commission of the offense. Since American drones do not require landing or overflight rights in Germany, active support from the Federal Republic can hardly be assumed.

In addition, because of the far-reaching immunity regulations in the stationing law, investigative activities against the stationing forces can only be carried out with great difficulty.

In order to prevent unlawful drone operations by the American armed forces from German soil via relay stations, the residence contract would therefore have to be terminated or at least submitted to the German legislature and the contractual partners for approval with appropriate modifications.

Right to march through

According to Article 1 (4) of the Residence Agreement, the Federal Republic of Germany also grants the American, British and French armed forces the right to enter, cross and leave Germany on the way to or from Austria or any NATO member state.

The regulation is accordingly limited to transit operations from the territory of a NATO member state to West Germany or from West Germany to the territory of a NATO member state.

Reporting requirement

Despite the enormous security effects on the Federal Republic of Germany as a result of the stationing of Allied troops and civilian entourage, there is no contractually stipulated reporting obligation on the part of the foreign armed forces to inform about the extent of the stationing.

Secret service activity

The American secret services are organized as military units. Therefore Helmut Schäfer , former Minister of State in the Foreign Office, takes the view that the secret service activities of the United States of America in Germany are based on the residence contract and the additional agreements to the NATO troop statute.

After reunification, the opposition SPD demanded that the American surveillance of postal and telecommunications traffic in Germany be discontinued and that the relevant contracts and agreements be terminated if necessary.

rating

The residence contract did not affect the original occupation law of the three Western powers (United States of America, United Kingdom and France) and is basically a document of diplomatic cosmetics. With the agreement, the legal position of the Federal Republic of Germany in its dealings with eight NATO member states should be brought into line with the position of a state which temporarily restricts the exercise of its rights in a treaty and thus would have unrestricted sovereignty. In 1955, however, the Federal Republic of Germany was de jure a state with limited sovereignty. Because the stationing of troops in the sense of international law inevitably means an encroachment on the sovereignty of the host state. The West Berlin legal scholar Dieter Schröder summarized the facts as follows: "The Federal Republic has no rights of a sovereign state compared to a troop stationing of the three Western powers related to Germany as a whole."

The reservation rights granted to the Allies by the Paris Treaties, in particular the right to permanent troop stationing, require the Federal Republic to have a special legal status. The residence contract has a double effect. In addition to the purely legal component that initially existed, a security component was added later as an indirect effect. From the beginning of the 1950s, during the Cold War until the present day, the Federal Republic of Germany was careful, for reasons of security policy, to prevent troop reductions by the Western Allies. The American troop contingents are by far the largest foreign armed forces on German territory and are therefore of enormous political and military strategic importance for German security. The announcement by the American President Donald Trump at the NATO summit on July 11 and 12, 2018 in Brussels that American troops would be withdrawn from the Federal Republic of Germany was in this respect suitable for forcing the Federal Republic of Germany to make concessions. The threat of troop withdrawal was intended to induce the German government to increase national defense spending from 1.24 to 2.0 percent of gross domestic product (GDP). As a result, Chancellor Angela Merkel announced an increase in the German military budget. In this respect, the room for maneuver in foreign policy is restricted by the indirect effects of the Allied rights of reservation , in particular by the right to permanent residence for foreign troops.

See also

Web links

literature

  • Daniel Hofmann: Troop stationing in the Federal Republic of Germany. The treaty negotiations with the Western powers 1951–1959. Oldenbourg, Munich 1997 (documents on Germany policy. Supplements 8), ISBN 3-486-56288-6 .

Individual evidence

  1. ↑ a b Ellinor von Puttkamer : Prehistory and Conclusion of the Paris Treaties of October 23, 1954. (PDF) Max Planck Institute for Comparative Public Law and International Law, 1957, accessed on June 3, 2018 .
  2. ^ The Paris Treaties, October 23, 1954. (PDF) Political Archives of the Federal Foreign Office, 2006, accessed on June 3, 2018 .
  3. ^ Written report by the Committee on Foreign Affairs (4th Committee). (PDF) German Bundestag, 2nd electoral term, 1953, 1953, accessed on July 10, 2018 .
  4. ^ Right to station troops. Federal Foreign Office, accessed on June 3, 2018 .
  5. ^ A b Hanns Jürgen Küsters: From the limited to the full sovereignty of Germany. Federal Agency for Civic Education, April 22, 2005, accessed on July 14, 2018 .
  6. ^ A b Hanns Jürgen Küsters: Sovereignty and the renunciation of ABC weapons. German diplomacy at the London Nine Powers Conference 1954. (PDF) In: Vierteljahrshefte für Zeitgeschichte - 42nd volume - issue 4 - October 1994. Karl Dietrich Bracher, Hans-Peter Schwarz, Horst Möller, October 1994, accessed on July 9, 2018 .
  7. ↑ Konrad Adenauer: July 9, 1952: Declaration by the Federal Chancellor in the 221st session of the German Bundestag on the Germany Treaty and the Treaty on the European Defense Community (EVG Treaty). Konrad-Adenauer-Stiftung eV Scientific Services / Archive for Christian Democratic Politics, accessed on July 27, 2018 .
  8. ↑ a b c State of play: Exercise of military force by foreign states from military bases in Germany. (PDF) Scientific Services of the German Bundestag, 2015, accessed on June 23, 2018 .
  9. ^ A b c Dieter Schröder: Special case Germany: The victorious powers can only exercise their reserved rights cautiously. ZEIT ONLINE GmbH, October 14, 1988, accessed on June 16, 2018 .
  10. ↑ a b c d Contract on the Residence of Foreign Armed Forces in the Federal Republic of Germany. (PDF) Federal Foreign Office, September 5, 2011, accessed on June 3, 2018 .
  11. ↑ Horst Möller, Ilse Dorothee Pautsch: The unit: The Foreign Office, the GDR Foreign Ministry and the two-plus-four process . Ed .: Horst Möller, Ilse Dorothee Pautsch. Vandenhoeck & Ruprecht, 2015, ISBN 978-3-525-30076-3 , pp. 639 f .
  12. ^ Till Müller-Heidelberg, Elke Steven (Ed.): Fundamental Rights Report 2014 . 2nd Edition. FISCHER paperback, 2014, ISBN 978-3-596-03018-7 .
  13. ^ On the legal framework for the stationing of foreign troops in Germany. (PDF) Scientific Services of the German Bundestag, 2008, accessed on September 2, 2017 .
  14. ^ Exchange of notes 1990. (PDF) Federal Foreign Office, 1990, accessed on October 3, 2018 .
  15. ↑ a b Exchange of information on the Code of Conduct on Politico-Military Aspects of Security (FSC.DEC / 4/03) Report by the Federal Republic of Germany for the year 2008. Foreign Office of the Federal Republic of Germany, June 15, 2009, accessed on June 24, 2018 .
  16. ↑ Josef Isensee, Paul Kirchhof (ed.): Handbook of the constitutional law of the Federal Republic of Germany: Vol. 10 Germany in the community of states . 3. Edition. tape 10 . Müller, CF, Heidelberg 2012, ISBN 978-3-8114-6210-6 , pp. 636 .
  17. ^ A b Dieter Deiseroth: Stationing American. Nuclear weapons - limited sovereignty of the Federal Republic? (PDF) Democracy and Law, 1981, accessed June 26, 2018 .
  18. ↑ Michael H Müller: The domestic implementation of unilateral measures of external violence (=  writings on public law ). Duncker & Humblot, 1994, ISBN 3-428-08011-4 , pp. 96 f .
  19. ^ Karl Doehring, Wilfried Fiedler (ed.): Germany Treaty, Western Alliance and Reunification . 1st edition. Duncker & Humblot, 1985, ISBN 3-428-05846-1 , pp. 97 f .
  20. ↑ a b c d Response of the Federal Government to the minor question from MPs Paul Schäfer (Cologne), Inge Höger, Jan van Aken, other MPs and the DIE LINKE parliamentary group. - Printed matter 17/5279 - Foreign armed forces in Germany. (PDF) German Bundestag, April 14, 2011, accessed on June 17, 2018 .
  21. ↑ Peter Becker, Reiner Braun, Dieter Deiseroth (eds.): Peace through law? Berliner Wissenschafts-Verlag, Berlin 2010, ISBN 978-3-8305-1721-4 , pp. 90 f .
  22. ↑ ICC Statute. (PDF) Federal Foreign Office, accessed on October 3, 2018 .
  23. ↑ Data protection - current questions and answers: Atzelsberg Talks 2014. (PDF) (No longer available online.) In: FAU Research, Series A, Humanities 3. Helmut Neuhaus, 2015, formerly in the original ; accessed on July 6, 2018 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / opus4.kobv.de  
  24. ↑ Helmut Neuhaus, Friedrich-Alexander-Universität Erlangen-Nürnberg (Ed.): Data protection - current questions and answers: Atzelsberg Talks 2014 . FAU Research, Series A, Humanities 3. Verlagdruckerei Schmidt GmbH, Neustadt ad Aisch 2015, ISBN 978-3-944057-31-6 , p. 40 f .
  25. ↑ a b Sebastian Fries: Between Security and Sovereignty: American Troop Stationing and Foreign Policy Scope of Action of the Federal Republic of Germany. (PDF) Retrieved July 3, 2018 .
  26. ↑ Ulf Lüdeke: Summit in Brussels: Much indicates that Trump is preparing to blow up NATO. FOCUS, July 7, 2018, accessed February 4, 2019 .
  27. ↑ Merkel holds out the prospect of increasing defense spending. (No longer available online.) Welt, July 12, 2018, formerly in the original ; accessed on July 12, 2018 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.welt.de