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Merely a Landmark or a Change of Course: The Federal Constitutional Court Hears Arguments in the NATO Strategic Concept Case

Published online by Cambridge University Press:  06 March 2019

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The Second Senate of the Bundesverfassungsgericht (Federal Constitutional Court) heard oral arguments on June 19, 2001, in the “NATO Strategic Concept” case. The parliamentary fraction of the Party of Democratic Socialism (PDS) in the Bundestag (Federal Parliament) brought the case to the Federal Constitutional Court as an Organstreitverfahren (dispute between federal organs), which permits one federal organ (in this case, the Federal Parliament as represented by one of its party fractions) to challenge the constitutionality of an action taken by another federal organ (in this case, the Bundesregierung [Federal Government - executive branch]). The Federal Government consists of a parliamentary coalition between the Social Democratic Party (SPD) headed by Chancellor Gerhard Schröder, and the Alliance 90/the Greens (Greens), whose most prominent figure in the Federal Government is Foreign Minister Joschka Fischer.

Type
Research Article
Information
German Law Journal , Volume 2 , Issue 11 , 2001 , E2
Copyright
Copyright © 2001 by German Law Journal GbR 

References

(1) The Party of Democratic Socialism is the successor to the former East German Sozialistischen Einheitspartei Deutschland (German Socialist Unity Party), which held a political monopoly in the German Democratic Republic. The influence of the PDS today is largely limited to the new Länder (Federal States) in the former East Germany, holding 37 seats in the 668 seat Bundestag. See, Bundestag Infothek: Sitzverteilung 14. WP - Überhangmandat (visited June 20, 2001) http://www.bundestag.de/info/wahlen/154/1541_14.html.Google Scholar

(2) Article 93(1)(1) of the Basic Law provides for the Federal Constitutional Court's Organstreitverfahren jurisdiction: “The Federal Constitutional Court shall rule: on the interpretation of this Basic Law in the event of disputes concerning the extent of the rights and duties of a supreme federal body or of other parties vested with rights of their own by this Basic Law or by the rules of procedure of a supreme federal body; …” See, Bundesverfassungsgerichtgesetz (Federal Constitutional Court Act) Article 13(5). Donald Kommers describes this unique jurisdiction in the following way:Google Scholar

Conflicts known as Organstreit proceedings involve constitutional disputes between the highest “organs,” or branches, of the German Federal Republic. The court's function here is to supervise the operation and internal procedure of these executive and legislative organs and to maintain the proper institutional balance between them. The governmental organs qualified to bring cases under this jurisdiction are the federal president, Bundesrat, federal government, Bundestag, and units of these organ vested with independent rights by their rules or the Basic Law.Google Scholar

DONALD KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 12 (2d ed. 1997).Google Scholar

(3) NATO Strategic Concept, April 24, 1999, Archive Site for State Department Information Prior to January 20, 2001, 2 (visited June 20, 2001) http://www.state.gov/www/regions/eur/nato/nato_990424_stratcncpt.htmlGoogle Scholar

(4) Id. at 's 20–22.Google Scholar

(5) The Concept makes repeated reference to NATO's traditional territorial interest in the Euro-Atlantic area, but also invokes concern for threats emanating from and/or posing security risks to the Alliance's “periphery”, “other states” (20), “other regions” (22) and “non-state actors” (22). See, id., at 24.Google Scholar

(6) Id. at 31.Google Scholar

(7) North Atlantic Treaty, April 4, 1949, Art. 5, (visited June 20, 2001) http://www.ola.bc.ca/online/cf/documents/1949NATOTreaty.htmlGoogle Scholar

(8) Id. at 15.Google Scholar

(9) Id. at 's 10, 15–19.Google Scholar

(10) Some argue that the NATO bombing campaign, more than a mere contradiction of the cooperative and internationalist spirit of the new Strategic Concept, probably violated international law: “… those who argue that the NATO operation was lawful under international law have a hard case prove.” Michael Bothe, Kosovo - Many Questions, Few Answers (editorial), INTERNATIONAL PEACEKEEPING 1, 2 (January - April, 1999).Google Scholar

(11) See, e.g., Udo Di Fabio (Interview), The Present and Future Meaning of the State and the Role of the Federal Constitutional Court, 2 GERM. L. J. 9 (June 1, 2001) http://www.germanlawjournal.comGoogle Scholar

(12) The Strategic Concept itself uses conflicting language with respect to its binding nature. In ist Introduction, the Strategic Concept refers to itself as a guide for the implementation of NATO's binding mission. But in its Conclusion, the Strategic Concept, claims that it will “govern the Alliance's security and defence policy, …” NATO Strategic Concept, April 24, 1999, Archive Site for State Department Information Prior to January 20, 2001, 's 5 and 65 (visited June 20, 2001) http://www.state.gov/www/regions/eur/nato/nato 990424 stratcncpt.html.Google Scholar