Yet to Be Deployed?

It was with a single remark that the Agent of the Republic of Nicaragua concluded the German reservation had “no application” (para. 23) in the proceedings instituted on 1 March 2024. Meanwhile, the German representatives seemed to silently agree, leaving Germany’s reservation unmentioned in the public hearings in front of the ICJ. For what reason?

The situation underlying the case of Nicaragua v. Germany has already been commented on in detail (see, e.g. here, here, here, and here). Thus, this contribution does not seek to add another general view. Instead, it takes the proceedings as an occasion to shed new light on a yet underexplored doctrinal question: What are the limits of the German military-related reservation under Art. 36 para. 3 ICJ Statute? Not only is the wording of the German military-related reservation immensely broad at first glance. There also is a tension arising from the different terminology used in its equally authentic English and German versions (p. 255). While the ICJ has not yet decided on Germany’s reservation, scholarly argument around it has fallen dormant. What are its foundations, what are its practical implications? Time to revive the discussion.

With a Grain of Salt?

After several decades of recurring debate, the German Federal Government decided to submit its first declaration of acceptance under Art. 36 para. 2 ICJ Statute on 1 May 2008. While domestic reactions to this move were mostly positive, some criticised the attached military-related reservation, often called “Streitkräftevorbehalt”, for being inconsequent or even unconstitutional. While the reservation also contains a typical clause on alternative methods of dispute settlement, para. (i), as well as a widely used “anti-ambush” clause, para. (iii), the contentious military-related part of the reservation reads as follows in its English version:

“(ii) any dispute which

(a) relates to, arises from or is connected with the deployment of armed forces abroad, involvement in such deployments or decisions thereon,

or

(b) relates to, arises from or is connected with the use for military purposes of the territory of the Federal Republic of Germany, including its airspace, as well as maritime areas subject to German sovereign rights and jurisdiction;”

A Quick Look at the Figures

Currently, 74 declarations of acceptance are in force, with over 50 of them containing substantial reservations of which some 15 contain explicit military clauses. The data from the 2022 ICJ Yearbook suggest that 17% of its 156 (now 166) contentious cases were submitted relying on a declaration of acceptance, whereas 40% have been submitted on the basis of a compromissory clause, and another 16% on a combination of both.

It appears that in no case so far, the ICJ refused jurisdiction due to a military-related reservation explicitly. This may in part be due to such reservations preventing applications from being filed in the first place. And it may as well be due to compromissory clauses frequently opening paths around the terrain of reservation-laden declarations of acceptance.

Whose “Armed Forces” and Which “Deployment”?

This article focuses on para. (ii) (a) of the German reservation. An isolated view on its wording suggests an enormously far reach. No explicit restriction can be found to the deployment of only “German” armed forces. Why also, one might ask candidly, would Germany want to be submitted to ICJ jurisdiction over the deployment of “foreign” armed forces if not already over its own?

Equally striking may be the discrepancy between the terms of “deployment” and “Verwendung” in the two authentic versions. English dictionaries define “deployment” as “the act of moving soldiers or weapons into a position where they are ready for military action”. In contrast “Verwendung” most commonly translates to „use”, hence suggesting a far broader scope, which may include any sea-, air-, or space-based activities and even non-kinetic operations. Notably, the term “deployment” is rather uncommon in international treaties and documents, such as the UN Charter, the Geneva Conventions, the North Atlantic Treaty as well as the Definition of Aggression. For years, only Germany was using the notion in a reservation to a declaration of acceptance. This calls for a closer look.

Clues on the Intention

Albeit their legal nature remains disputed in detail, declarations of acceptance and reservations can be interpreted similarly to treaties. Therefore, the methods established in the Vienna Convention on the Law of Treaties are to be applied analogously, with a special focus on purpose and intention. The ICJ has admitted ministerial statements, parliamentary debates, legislative proposals, press communiqués (para. 49) and letters by rapporteurs (para. 63) as sources of supplementary interpretation.

Concerns on the methodology of this approach aside, official supplementary documents on the German reservation are outstandingly scarce. While it is believed (p. 400) that intense debate under leadership of the Federal Foreign Office has preceded the submission, the only official document easily available is a one-pager information of the Federal Government to the Federal Parliament. It only names “europarechtliche und andere Erwägungen” (considerations of European law and others) as the most recent obstacles to an unlimited declaration of acceptance, and claims that these were therefore addressed by the German reservation.

Certainly, arguing that para. (ii) (a) exempts any use of any armed forces may not be aligned with the ICJ’s idea of a “natural and reasonable” (p. 104) interpretation. Also, bearing in mind the reciprocal effect of reservations, it seems unlikely that Germany would have wanted to curtail its own procedural abilities this far. Moreover, the Federal Government may have expected disputes over the deployment of foreign armed forces abroad to be covered by the indispensable third party rule either way. Nonetheless, one should recall that the exact scope and procedural character of the “Monetary Gold Principle” are not precisely defined.

Accordingly, para. (ii) (a) likely seeks to generally include the use of any member of the German armed forces, also when commanded by non-German entities. Such cases could occur in bi- or multilateral alliances. Particularly, the “decisions” taken upon the actions of German armed forces need not be limited to such taken by German (military) authorities. Rather, they may as well include decisions taken through other states’ chains of command and even those of International Organisations.

Publications by experts discussing the elaboration process, while technically not quasi travaux préparatoires, provide some insight into the Federal Government’s motives in 2008. Firstly, disputes over “humanitarian interventions” should be avoided until better clarified by scholars. Secondly, Germany, when using its armed forces within the UN, NATO, or EU, is already subject to legal scrutiny through these organisations. Thirdly, large numbers of NATO troops, U.S. troops in particular, are stationed in Germany from where they move and operate.

Interestingly however, several of Germany’s closest partners, among them long-standing EU and NATO members, have not submitted any military-related reservation at all. Conspicuously, this is also the case with Italy: Despite being both a major stationing country and an active participant in numerous non-UN military missions, Italy’s reservation contains no military-related clause.

No Forcible Constitutional Restrictions

It may be argued that another purpose of para. (ii) (a) was to preserve the German “wehrverfassungsrechtlicher Parlamentsvorbehalt” recognised by the German Federal Constitutional Court in 1994 as a constitutional principle. In a nutshell, it grants the German Federal Parliament an indispensable right to approve in advance every “Einsatz” (i.e. deployment) of German armed forces abroad. Except in situations of imminent danger (comp. § 5 ParlBG), the Parliament can thus veto any “Einsatz” of German armed forces abroad.

Typical translations of the notion “deployment” do not result in “Verwendung” but “Einsatz”. The question reoccurs, why the German wording of the reservation then more broadly accounts for any use, “Verwendung”. This may be a cautionary measure of the German Federal Government. The German Federal Constitutional Court itself stated that while historically, the notion of “Einsatz” entails the entry into war, it must also account for scenarios of much less severity. While the Court refused to precisely define this threshold (paras. 78, 81), it instead identified the legislator as responsible for an appropriate definition of “Einsatz” (para. 82). The German legislator fulfilled this role by drafting the so-called “Parlamentsbeteiligungsgesetz” in 2005, leading to a casuistic scrutiny of whether the intensity and perilousness of an “Einsatz” have been reached.

It is however noteworthy that numerous European states have similar constitutional principles of parliamentary participation (e.g. Bulgaria, Art. 84 para. 11; Sweden, Chapter 15 Art. 16; Estonia, § 128), whereas their governments did not submit any military-related reservations. Moreover, it is notable that Germany has neither submitted any reservation to the European Convention for the Peaceful Settlement of Disputes nor made use of Art. 35 para. 4 of that Convention. It might thus be inferred that the Federal Government in 2008 was more concerned about disputes over military matters being brought by non-European states.

Furthermore, the German Constitution does not oblige the Federal Government to submit a military-related reservation. Much rather, it is widely held that Art. 24 para. 3 Grundgesetz and the general spirit of the constitution demand an effective fostering of the ICJ’s jurisdiction. It seems that the Federal Government wished to keep the scope of its reservation rather broad, covering any “Verwendung” of the German armed forces. The main motive may have been to avoid the ICJ defining the constitutionally sensitive term “Einsatz” differently from the definition in German law or jurisprudence.

To Be Kept in Reserve?

Nearly 16 years after its submission, numerous questions surrounding the German reservation remain unanswered. As shown, its scope is potentially wide.

While upholding the reservation unquestionably is Germany’s sovereign right, its genuine necessity may at least be reassessed. Firstly, there appears to be no forcible legal or political reason for the reservation. Secondly, the effectiveness of military-related reservations can be doubted looking at the statistics. Lastly, Germany this way bars itself from initiating certain applications due to the reciprocal nature of its reservation. Future may show whether Germany will sense the need to deploy it or continue to keep it in reserve.

The author would like to thank the participants of the jour fixe of the Working Group of Young Scholars in Public International Law (AjV) for encouraging him to write this contribution.