A. Introduction

Since the German Federal Constitutional Court’s 1994 decision on the deployment of AWACS surveillance aircraft over the Adriatic Sea, it is one of the cornerstones of German constitutional law that Parliament (the Bundestag) needs to consent to the external use of German Armed Forces in situations where imminent involvement in hostilities is likely. However, the Bundestag may neither determine “the modalities, the dimension and the duration of the operations, nor the necessary coordination within and with the organs of international organizations.” As the requirement of constitutive parliamentary approval is not directly set out in the German Basic Law, the Federal Constitutional Court (in the following: FCC or the Court) derived it from the general constitutional framework. The concept of “parliamentary army”, designed by the Court, attempts to strike a balance between executive effectiveness and parliamentary participation.

The increasing involvement of Germany in international military structures is a challenge to parliamentary control: almost by definition, operations by NATO’s envisaged (rapid) Response Force will be difficult to subject to previous parliamentary scrutiny. While the executive has broad leeway in implementing foreign policy goals including military cooperation, the FCC has made it clear that the legislature’s approval of German membership in a system of mutual self-defence such as NATO is not a generalized substitute for parliamentary authorization of the concrete deployment of the armed forces. However, the Court’s broad interpretation of the executive’s treaty-making powers in other cases is, according to some, bound to erode parliamentary scrutiny over large areas of German foreign policy. In 2001, the Constitutional Court decided that the 1999 NATO Strategic Concept, which allowed for so-called “non-Article 5 missions” beyond the North Atlantic area, did not require a renewal of parliamentary approval of the NATO Treaty. The stance taken by the Court in a 2007 decision concerning the use of German Tornado...