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Deployment of cruise missiles in Europe: The legal battles in the Netherlands, the Federal Republic of Germany and Belgium*

Published online by Cambridge University Press:  07 July 2009

P.J. Kuyper  and
K.C. Wellens
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Extract

On 26 March 1986 the procedure of parliamentary approval of the so-called Cruise-missile Treaty between the Netherlands and the United States was concluded by a vote of approval by the First Chamber (Senate) of Parliament. Earlier, on 27 February 1986, the Second Chamber, after protracted debate, had given its approval. On 20 May 1986 the District Court of The Hague declared itself incompetent to hear a case brought by the ‘Stichting Verbiedt de Kruisraketten’ [Foundation for the Prohibition of Cruise Missiles, hereinafter FPCM] against the State of the Netherlands.

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Articles
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Netherlands Yearbook of International Law , Volume 18 , December 1987 , pp. 145 - 228
Copyright
Copyright © T.M.C. Asser Press 1987

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References

1. Exchange of letters between the Government of the Kingdom of the Netherlands and the Government of the United States of America concerning an agreement on the stationing of a wing of ground-launched cruise missiles of the US Air Force, The Hague, 4 November 1985, Trb. 1985 No. 145.

2. Act of approval carried by a 45–28 majority vote, Hand. I 1985/86 p. 923.

3. Act of approval carried by a 79–69 majority vote, Hand. II 1985/86 p. 3819. All motions and amendments of the opposition were rejected.

4. Judgment of 20 May 1986, Stichting Verbiedt de Kruisraketten v. The State of the Netherlands with annotation by Akkermans, P.W.C., published in 36 Ars Aequi (1987) no. 2, p. 22Google Scholar (translation infra pp. 417–422). Connected procedures are: Judgment of the President of the District Court of The Hague of 5 November 1985, Stichting Miljoenen Zijn Tegen v. The State of the Netherlands, NJ Ab. (1986) No. 41 and Judgment of the President of the District Court of The Hague of 23 January 1986, Stichting Miljoenen Zijn Tegen v. The State of the Netherlands (not published).

5. Writ of Appeal filed on 4 December 1986 with the Court of Appeal of The Hague, mimeo published by FPCM.

6. Art. 120 of the Constitution; translation in: Blaustein, A.P. and Flanz, G.H., eds., Constitutions of the World, vol. XI (1971).Google Scholar

7. Arts. 91(1) and 93 of the Constitution.

8. Ibid., Art. 91(3).

9. Ibid., Art. 120.

10. Ibid., Arts. 93 and 94.

11. See Supreme Court 6 March 1959, NJ (1962) No. 2 (Nyugat). Cf., Kortmann, C.A.J.M., De Grondwetsherziening 1983 [The 1983 Constitutional Revision] (1983) pp. 258, 306–307.Google Scholar Kortmann accepts that customary international law cannot set aside national laws, but sees possibilities for review in the light of general principles of law (not necessarily understood as the general principles received by international law). Alkema seems to be of the same opinion, see Alkema, E.A., Een Meerkeuzetoets. De rechter en de internationale rechtsorde [A multiple choice test. The judge and the international legal order] (1985) p. 5Google Scholar and his note to Supreme Court 7 November 1984, NJ (1985) No. 247, p. 917.

12. Art. 92 of the Constitution.

13. Ibid., Art. 96(1) and (2).

14. Ibid., Art. 100. C. Tomuschat seems to believe that Art. 100 played a role in the debate on the deployment of cruise missiles, see Kommentar zum Bonner Grundgesetz (Bonner Kommentar) (1985) with comments on Art. 24 under ‘Rechtsvergleichende Hinweise No. 9, Niederlande, sub(b)’.

15. It is to be noted that, according to US Constitutional law the treaty is an executive agreement, cf., Bijl. Hand. II 1983/84 - 17980 No. 14, p. 4.

16. NATO Athens guidelines 1962, published in NATO's Final Communiqués 1949–1974 (1975) p. 143.Google Scholar

17. Cf., the interpretative declaration of the American Government in relation to Arts. I and II of the Non-Proliferation Treaty, in: Publication of the Ministry of Foreign Affairs, No. 94, Annex 34.

18. This is an advisory body of the Ministry of Foreign Affairs, which gives opinions on matters of international law. It consists of independent experts.

19. Bijl. Hand. II 1981/82 - 15800, Chs. V and X No. 58. The numbers of the articles of the Constitution are those of the old Constitution. They correspond to Arts. 91(1) and 92 of the Constitution of 1983. It should be noted that this interpretation of decision-making within NATO was in conformity with the US interpretation of such decisions: see the quotation of the US Senate ratification hearing, ibid., p. 4.

20. Ibid., p. 4.

21. Bijl. Hand. II 1979/80 - 15049 No. 17.

22. Bijl. Hand. II 1983/84 - 17980 B, pp. 9, 11.

23. Kooijmans, P.H., ‘Karakter en looptijd van het verdrag over kruisluchtwapens: politiek in een juridisch jasje’ [Character and duration of the cruise missile treaty: politics assuming a legal mantle], 40 Internationale Spectator (01 1986) pp. 47–52.Google Scholar

24. Cf., De Vries (Social Democrat) in Hand. II 1985/86 p. 654 and the debate between De Vries and Minister Van den Broek (the Foreign Minister), ibid., pp. 750–751.

25. Ibid., p. 720.

26. Kooijmans, loc.cit. n.23, p. 49.

27. De Dagvaarding [The Application] (1985) p. 113. It should be noted that the action initiated by the FPCM was one in tort.

28. Art. 120 of the Constitution.

29. Memorandum of oral pleadings [Pleitnotitie] of the FPCM, pp. 37–38.

30. Rejoinder for the State, pp. 8–10. Memorandum of oral pleadings of the State, pp. 24–29. On this point see also Kortmann and Alkema, op.cit. n.11.

31. Memorandum of oral pleadings FPCM, pp. 50–51, 74–76.

32. Rejoinder for the State, pp. 11–13. Memorandum of oral pleadings of the State, pp. 28–29.

33. Arguments not recorded, but made during oral argument in court.

34. Judgment, Ars Aequi version para. 12, loc.cit. n.4, at p.24.

35. Writ of appeal, pp. 28–29.

36. Dutch courts should apply international law. If the rules of international law itself instruct Dutch courts to regard certain treaties as null and void, there is no inherent reason why they should not do so.

37. A decision by a national court that a treaty is null and void would produce consequences primarily on the national plane, but the Executive which would be bound by such a decision (assuming it to have been confirmed at the highest judicial level) could hardly escape bringing up the matter on the international plane by initiating the dispute settlements procedure of the Vienna Convention.

38. See the brief overview of the literature given by Sinclair, I., The Vienna Convention on the Law of Treaties, 2nd edn. (1984) pp. 207–209, 215–218.Google Scholar

39. There is hardly any State practice at all, see Sinclair, op.cit. n.38, p. 215.

40. Stb. 1950 No. K 84.

41. Although Art. 1(1) also lists ‘other military aid’, the emphasis of the MDAA is so clearly on material aid and not men that any doubt seems excluded.

42. Trb. 1954 No. 120. This treaty is in some respects a pendant of the German Aufenthaltsvertrag, see section 2, infra.

43. Trb. 1959 No. 53.

44. See Arts. I and II of the 1959 Agreement.

45. Trb. 1981 No. 51.

46. See Art. 6 (1954 Agreement), Art. XI (1959 Agreement) and Art. 5 (1981 Agreement).

47. On the treaty and Art. 96 see de Boer, J. and de Winter, R., ‘ “Enkele sleutel” voor kruisraketten past niet op de Grondwet’ [‘Single key’ for cruise missiles not in accordance with the Constitution], 59 NJB (1984) pp. 450–453Google Scholar, and Sarolea, H., ‘Plaatsing van kruisvluchtwapens onder uitsluitend Amerikaans commando schiet een gat in art. 96 Grw’ [Placing cruise missiles under the sole command of the Americans shoots a hole in Art. 96 of the Constitution], 59 NJB (1984) pp. 463–464Google Scholar. Also Roos, N.H.M, Grondwet en Kruisvluchtwapens [The Constitution and Cruise missiles] (1986) pp. 44–52.Google Scholar

48. Bijl. Hand. II 1985/86 - 19290 No. 8, p. 3.

49. Bijl. Hand. II 1983/84 - 17980 B, Annex 3, ibid., No. 14, passim, Hand. II 1985/86 p. 723 et seq. (Minister de Ruiter and various interruptions by MPs).

50. Bijl. Hand. II 1985/86 - 19290 No. 5, p. 16.

51. See, for example, Bijl. Hand. II 1985/86 - 19290 No. 10, pp. 4, 6–7.

52. Ibid., No. 12, p. 6.

53. Bijl. Hand. II 1983/84 - 17980 B, Annex 4.

54. See n. 52 supra.

55. Bijl. Hand. II 1985/86 - 19290 No. 5, pp. 20–37.

56. The Government argued that it had been dispelled, Bijl. Hand. II 1985/86 - 19290 No. 12, p. 4.

57. Motion-Engwirda, ibid, No. 16, rejected on 27 February 1986, Hand. II 1985/86 p. 3819.

58. Roos, op.cit. n. 47, p. 41. The same idea seems to underlie the motion-Brouwer, Bijl. Hand. II 1985/86 - 19290 No. 18, also rejected on 27 February 1986, see n. 57 supra. See also the opinion of Prof. Samkalden, , Bijl. Hand. II 1985/1986 - 19290 No. 6, p. 24 et seq.Google Scholar

59. See Duynstee, F.J.F.M., Grondwetsherziening [Constitutional Revision] (1953) Art. 67, pp. 1–4Google Scholar, where many more examples are given of ‘decisions of international institutions’ as mentioned in the travaux préparatoires.

60. Bijl. Hand. II 1983/84 - 17980 A, pp. 3–4; Bijl. Hand. II 1985/86 - 19290 B, p. 5.

61. Art. II of the NPT. See Bijl. Hand. II 1983/84 - 17980 A, p. 3. See also the opinion of Prof. Donner, , Bijl. Hand. II 1985/1986 - 19290 No. 6, p. 50.Google Scholar

62. See n. 60 supra.

63. de Vries, K.G., ‘Kruisraket en Grondwet’ [The Cruise missile and the Constitution], 42 Socialisme en Democratie (1985) p. 273 et seq, at pp. 275–276.Google Scholar

64. Bijl. Hand. II 1985/86 - 19290 No. 8, p. 17 et seq. See also Donner, loc.cit. n. 61 p. 43. Contra: Samkalden, loc.cit. n. 58, p. 25.

65. Bijl. Hand. II 1985/86 - 19290 No. 12, p. 13.

66. See n. 47 supra; De Vries, loc.cit. n. 63, p. 276; Bijl. Hand. II 1985/86 - 19290 No. 10, p. 18.

67. Bijl. Hand. II 1985/86 - 19290 No. 8, pp. 22–24 and ibid., No. 12, p. 12.

68. Amendment-De Vries, ibid, No. 11, defeated on 27 February 1986, Hand. II 1985/86 p. 3819.

69. See Miller, A.S. and Feinrider, M., eds., Nuclear Weapons and Law (1984)Google Scholar; Meyrowitz, H., ‘La stratégie nucléaire et le protocole additionel I aux Conventions de Genève de 1949’, RGDIP (1979) pp. 905–961Google Scholar; David, E., ‘Examen de certaines justifications théoriques à l'emploi de l'arme nucléaire’, in Les conséquences juridiques de l'installation éventuelle des missiles cruise et Pershing en Europe (1984) pp. 4–40Google Scholar; Fischer, H., Der Einsatz von Nuklearwaffen nach Artikel 51 des I. Zusatzprotokolls zu den Genfer Konvention von 1949 (1985)Google Scholar, to mention only a few recent works. In the Netherlands these aspects have been discussed by Kalshoven, F., ‘Het gebruik van kernwapens in het internationale recht’ [The use of nuclear weapons under international law], 35 Internationale Spectator (1981) p. 470 et seq.Google Scholar, and by Rabus, W.G., ‘Enkele volkenrechtelijke kanttekeningen bij de dagvaarding van de Stichting Verbiedt de Kruisraketten tegen de Staat der Nederlanden’ [Some international law remarks on the Foundation to Prohibit Cruise Missile's writ of application against the Dutch State], 60 NJB (1985) pp. 701–706.Google Scholar

70. Bijl. Hand. II 1985/86 - 19290 No. 12, pp. 14–15.

71. Ibid., No. 8, p. 29 and No. 12, p. 15. Wet Oorlogsstrafrecht (Criminal Law in Wartime). Sr., p. 264.

72. Ibid., No. 8, p. 29.

73. Ibid., No. 8, p. 29.

74. Ibid., No. 8, p. 29.

75. Ibid., No. 8, pp. 30–31.

76. See, for example, Art. 1(2) of Protocol I of 1977, 16 ILM (1977) p. 1396.

77. See on this issue Kalshoven, loc.cit. n. 69, p. 478.

78. See Bijl. Hand. II 1985/86 - 19290 No. 8, p. 30, with reference to ibid., 18277 No. 6.

79. See, on this and related issues, the works of Fischer, Kalshoven and Meyrowitz, loc.cit. n. 69.

80. See Bijl. Hand. II 1985/86 - 18277 No. 6 and No. 7; Boer, J. de and de Winter, R., ‘De Kernwapens uit het gecodificeerd humanitair oorlogsrecht, te beginnen in Nederland’ [Nuclear weapons to be thrown out of the humanitarian law of armed conflict, commencing with the Netherlands], 60 NJB (1985) pp. 553–554.Google Scholar

81. Motion-de Waart rejected, Hand. II 1985/86 p. 3971 (11 March 1986).

82. Bijl. Hand. II 1985/86 - 19290 No. 10, p. 20 and De Dagvaarding (The Summons), p. 84.

83. See below under section 3.4.

84. Bijl. Hand. II, 1985/86 - 19290 A, pp. 7–8.

85. Dagvaarding, pp. 74–82, also mentioned were the prohibition of torture and inhuman treatment.

86. See Writ of Appeal, p. 26 and the German case discussed below under section 3.5.

87. Bijl. Hand. II 1985/86 - 19290 Nos. 5 and 6.

88. See in particular Bijl. Hand. II 1985/86 - 19290 No. 5, pp. 2–3, pp. 17–18.

89. Only pp. 100–101 (altogether one page in 114) of the Dagvaarding were devoted to direct effect.

90. See in particular Ground 7 at p. 27 et seq. of the Writ of Appeal.

91. See Tribe, L.H., American Constitutional Law (1978) p. 71 et seq.Google Scholar; Steiner, H.J. and Vagts, D.F., eds., Transnational Legal Problems, Materials and Texts, 2nd edn. (1976) p. 132 et seq.Google Scholar; Lenaerts, K., Constitutie en Rechter: de rechtspraak van het Amerikaanse Opperste Gerechtshof, het Europese Hof van Justitie en het Europese Hof voor de Rechten van de Mens [The Constitution and the Judge: the caselaw of the American Supreme Court, the European Court of Justice and the European Court of Human Rights] (1983) p. 79 et seq.Google Scholar; Koopmans, T., Vergelijkend Publiekrecht [Comparative Public law] (1987) p. 48Google Scholar; Witteveen, W.J., ‘Het dilemma van de politieke rechtspraak’ [The dilemma of the political question doctrine], Staatkundig Jaarboek (1986) p. 91 et seq.Google Scholar

92. Henkin, L., ‘Is There a “Political Question” Doctrine?’, 85 Yale LJ (1976) pp. 597–623.CrossRefGoogle Scholar

93. Chicago & S. Airlines v. Waterman S.S. Corp., 333 US 103 (1948).

94. Baker v. Carr. 369 US 186 (1962).

95. Henkin, loc.cit. n. 92, pp. 612–613.

96. An exception might be the French doctrine of ‘Acte de gouvernement’, but even with the French administrative courts this doctrine is largely becoming discredited, see Auby, J.M. and Drago, R., Traité de Contentieux Administratif, 2nd edn. (1984) pp. 161–168.Google Scholar

97. Paras. 5–8 of the Judgment, 36 Ars Aequi (1987) p. 23Google Scholar. It is curious to see that the Court did not make a distinction here between competence and admissibility, declaring the applicant inadmissible in his claim rather than itself incompetent to hear it.

98. Cf., Kortmann, C.A.J.M., ‘Interpretatie van bepalingen van verdragen’ [Interpretating treaty provisions], Staatkundig Jaarboek (1985) pp. 125–146.Google Scholar

99. Art. 59 (2) of the Constitution [Grundgesetz (GG)] reads: ‘Treaties which regulate the political relations of the Federation or relate to matters of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies competent in any specific case for such federal legislation. As regards administrative agreements, the provisions concerning the federal administration shall apply mutatis mutandis’ (English versions quoted in this and the following footnotes on the FRG are taken from Finer, S.E., ed., Five Constitutions (1979).Google Scholar

100. Art. 25 of the Constitution reads: ‘The general rules of public international law shall be an integral part of federal law. They shall take precedence over the laws and shall directly create rights and duties for the inhabitants of the federal territory’.

101. Normally approval in Germany is in the form of an Act of Parliament — thus the two go hand in hand.

Article 24 of the Constitution reads in part:

‘(1) The Federation may by legislation transfer sovereign powers to intergovernmental institutions.

(2) For the maintenance of peace, the Federation may enter a system of mutual collective security; in doing so it will consent to such limitations upon its rights of sovereignty as will bring about and secure a peaceful and lasting order in Europe and among the nations of the world’.

102. See Art. 93(1) of the Constitution [Grundgesetz (GG)] and Art. 13(5) of the Act on the Constitutional Court [Bundesverfassungsgerichtsgesetz (BVerfGG)].

103. Constitutional Court [Bundesverfassungsgericht (BVerfG)] 2. Senat. Judgment of 16 December 1983, BVerfGE 66, No. 3, p. 39 et seq.

104. BVerfG (2.Senat) 18 December 1984, BVerfGE 68, No. 1 p. 1 et seq.

105. Insofar as legal arguments were introduced, it was always clear to the representatives that the Constitutional Court was to have the last word on these, cf., the statement of former Chancellor Helmut Schmidt in Parliament [Bundestag (BT)]. An early contribution to the legal discussion is the book by Däubler, W., Stationierung und Grundgesetz (1982)Google Scholar which in a general fashion has been important for this section.

106. BT Drucksache 10/620, 10.D. Bundest. 36 Sitzung Sten. Ben, p. 2590 et seq.

107. BG1. 1955 II, p. 253; UNTS Vol. 334.3 No. I: 4765; TIAS 3426. See, on this point, Th. Schweisfurth, , ‘Die “Zustimmung” der Bundesregierung zur Stationierung amerikanischer Mittelstreckenraketen in der Bundesrepublik Deutschland’, 22 Arch. VR (1984) p. 195 at p. 201.Google Scholar

108. Originally, the ‘Greens’ relied heavily on the so-called ‘wesentlichkeits-theorie’, the notion that all essential (wesentliche) decisions can be taken in the German constitutional system only with at least the co-operation of Parliament and that the interpretation of the Constitution should evolve with time so that the legislature remains the most important organ even for taking decisions which have not or could not have been foreseen, see BVerfGE 68, No. 1 pp. 13 and 30.

109. BVerfGE 68, No. 1 pp. 38 and 40.

110. Ibid., p. 41.

111. The German text uses the term ‘rechtserheblich’ [‘legally relevant’].

112. BVerfGE 68, No. 1 p. 82.

113. Ibid., the behaviour of the US was rather briefly indicated in the judgment; Schweisfurth, loc.cit. n. 107, pp. 200–201 gives some interesting indications that the US had indeed ‘accepted’ the German offer, thereby bringing about a bilateral treaty.

114. Ibid., pp. 83–84.

115. Ibid., p. 84 et seq.

116. This is the so-called Funktionsgerechtigkeitslehre, i.e., the doctrine of adequacy to the functions exercised by a constitutional organ, cf., Eckertz, R., ‘Atomäre Rüstung im Verfassungstaat. Das Raketenurteit des Bundesverfassungsgerichts’, 12 EuGRZ (1985) p. 165, at 166–167.Google Scholar

117. BVerfGE 68, No. 1 p. 89.

118. Ibid., pp. 127–132 (Mahrenholz).

119. See n. 107 above.

120. In the oral arguments before the Constitutional Court, the Federal Government went so far as to argue that in the light of the deployment of the SS-20s by the USSR there was no increase in effective strength on the part of the Western powers, see BVerfGE 68, No. 1 pp. 58–59.

121. Ibid., p. 59.

122. Ibid., pp. 23–25, 59–60.

123. Ibid., pp. 41–42.

124. See section 3.2 above. Obviously the Court tried to avoid taking sides on the issue of whether or not the stationing of the missiles increased the effective strength of allied troops on German soil. See, on this point, also Schweisfurth, loc.cit. n. 107, pp. 207–211.

125. See n. 114 above.

126. Under international law there would be no fundamental objection to this.

127. Cf., Bleckmann, A., ‘Gesetzesvorbehalt für Nachrüstung?’, 99 DVbl. (1984) pp. 6–14, at pp. 12–13Google Scholar, who does not believe, however, that permission was absolutely necessary within the framework of the Stationing Treaty of 1954. See also Von Münch, I., ‘Rechtsfragen der Raketenstationierung’, 37 NJW (1984) pp. 577–582, at pp. 581–582Google Scholar. Schweisfurth, loc.cit. n. 107, pp. 208–211 arrives at the conclusion that the permission to station and the US response thereto constitute a (formless) international agreement which requires parliamentary approval in the form of an act in conformity with Art. 59(2) of the Constitution. On the basis of a historical interpretation of the 1954 Stationing Treaty, however, he takes the position that German approval was, in fact, redundant.

128. BVerfGE 68, No. 1 p. 91.

129. Pursuant to Art. 79 of the Constitution.

130. BVerfGE 68, No. 1 pp. 6 and 29. In this sense also Tomuschat, C., Kommentar zum Bonner Grundgesetz (Bonner Kommentar) (1985)Google Scholar comments on Art. 24, no. 69.

131. BVerfGE 68, No. 1 p. 18. In the same sense Tomuschat, op.cit. n. 130, No. 8 and many authorities cited there.

132. Ibid., p. 19.

133. For the text of Art. 24(2) see n. 101 supra.

134. BVerfGE 68, No. 1 p. 19. This may be doubtful, cf., Tomuschat, op.cit. n. 130, No. 126 et seq.

135. BVerfGE 68, No. 1 p. 36.

136. Ibid., p. 56.

137. And many voices in the doctrine which agreed with the Government on this point, see Tomuschat, op.cit. n. 130, Nos. 8 and 126 et seq. above and Rojahn, n. 140 infra.

138. BVerfGE 68, No. 1 p. 91.

139. Ibid., p. 92. Contra: Tomuschat, op.cit. n. 130, No. 161.

140. Also Rojahn, O., in I. Von Münch, Grundgesetz - Kommentar, 2nd edn. (1983) p. 113Google Scholar, is of the opinion that NATO does not require a transfer of sovereign powers in the sense of Art. 24(1) of the Constitution.

141. Contra: Tomuschat, op.cit. n. 130, No. 8.

142. BVerfGE 68, No. 1 pp. 93–95.

143. BVerfGE 68, No. 1 pp. 96–97.

144. Eurocontrol II, 23 June 1981, BVerfGE 58, No. 1 p. 36.

145. BVerfGE 68, No. 1 pp. 98–99.

146. Ibid., pp. 99–101.

147. Ibid., p. 101. This can be contrasted with the situation in Belgium, see section 4 below.

148. See BVerfGE 68, No. 1 p. 102 et seq.

149. It has been pointed out by Tomuschat, op.cit. n. 130, No. 112 et seq. that it must be deemed extremely doubtful if Eurocontrol could really be regarded as an intergovernmental institution within the meaning of Article 24(1) of the Constitution insofar as it concerned the levying of retributions. In his opinion the new Protocol to the Eurocontrol Treaty of 1981 makes it clear that this is now no longer the case.

150. Mahrenholz cites Art. VII (1) of the WEU Treaty and the Treaty for a European Defence Community as contrasting examples of treaties which indeed set up programmes for military integration.

151. BVerfGE 68, No. 1 pp. 115–116.

152. For the Text of Art. 25, see n. 100 supra.

153. See n. 103 supra.

154. BVerfGE 66, No. 3 pp. 48–51, 54–55.

155. See BT Drucksache 10/53 and 10/138 (both questions from the ‘Green’ parliamentary party) and BT Drucksache 10/249 and 10/250 (Government replies to these questions).

156. BVerfGE 66, No. 3 pp. 40–56.

157. Ibid., pp. 57–58.

158. Ibid., p. 59.

159. Ibid., p. 60.

160. Ibid., pp. 60–61.

161. Ibid., p. 62. Consequently the legislature need not legislate for a possible encroachment of fundamental rights either.

162. BVerfGE 66, No. 3 p. 53.

163. From the too brief summary of arguments preceding the judgment it is not entirely clear which norms of customary international law were considered to have been infringed by the German deployment decision. It is to be assumed that the laws of warfare were among them. Reliance could only be had on those laws of warfare which were part of customary international law. This made it impossible — also because the book appeared after the case was argued — to rely on the extremely careful and interesting analysis of Art. 51 of Protocol I of Geneva (1977) and its applicability to nuclear warfare by Fischer, H., Der Einsatz von Nuklearwaffen nach Artikel 51 des I. Zusatzprotokolls zu den Genfer Konvention von 1949. Völkerrecht zwischen humanitärem Anspruch und militärpolitischer Notwendigkeit (1985).Google Scholar

164. BVerfGE 66, No. 3 pp. 64–65. It is to be noted that the Constitutional Court in fact evaded the question of the link between first use and the deployment of the new nuclear missiles.

165. Cf., ICJ Rep. 1969 p. 43.

166. See Zuck, R., ‘Political Question Doktrin, Judicial Self-Restraint und das Bundesverfassungsgericht’, 29 Juristenzeitung (1974) pp. 361–368Google Scholar; Blumenwitz, D., ‘Judicial Self-Restraint und die verfassungsrechtliche Überprüfung von Akten der auswärtigen Gewalt’, 91 DVB1. (1976) pp. 464–469Google Scholar; Delbrück, J., ‘Die Rolle der Verfassungsgerichtbarkeit in der innenpolitische Kontroverse um die Aussenpolitiek’, in Randelzhofer, A. and Süss, W., eds., Konsens und Konflikt, 35 Jahre Grundgesetz (1986) pp. 54–67, at p. 59Google Scholar. Also, Petersmann, E., ‘Act of State Doctrine, Political Question Doctrine und gerichtliche Kontrolle der auswärtigen Gewalt’, 25 Jahrbuch des öffentichen Rechts (1976) pp. 567–647Google Scholar and Schuppert, F., Die verfassungsgerichtliche Kontrolle der Auswärtigen Gewalt (1973)Google Scholar. For a German view on the American political question doctrine, see Scharpf, F.W., ‘Judicial Review and The Political Question, A Functional Analysis’, 75 Yale LJ (1966) pp. 517–597, at p. 566 et seq.CrossRefGoogle Scholar

167. Tomuschat, C., ‘Der Verfassungsstraat im Geflecht der internationale Beziehungen’, VVD StRL [publication of the Vereiniging von Deutschen Staatsrechtlehrer] (1978) pp. 7–63, at p. 55.Google Scholar

168. This technique of judicial review is used in particular in the kind of procedure, as was utilised by the Green Party, see Art. 93(2) of the Constitution, and Art. 13(G) BVerfGG.

169. In this sense also Blumenwitz, loc.cit. n. 166, p. 466, and Delbrück, loc.cit. n. 166, pp. 61–63, with various examples.

170. See Delbrück, loc.cit. n. 166, p. 63, and Tomuschat, loc.cit. n. 167, p. 57.

171. BVerfGE 36, No. 1 p. 14, author's translation.

172. Ibid., pp. 17–20.

173. Zuck, loc.cit. n. 69, pp. 367–368.

174. BVerfGE 68, No. 1 pp. 97, 103, 106.

175. For example, at p. 97 the judgment reads (author's translation): ‘Estimates and political judgments of this kind belong to the Federal Government. The Constitution only sets boundaries of obvious unreasonableness [willkür] to this power of judgment. It is not the Court's task to review within those boundaries whether such estimates and judgments are correct or incorrect, as it lacks judicially manageable standards to do so; they are subject to political review’.

176. BVerfGE 66, No. 3 p. 59, ‘In the nature of things in this case there are no correct and reliable procedures, which could be utilized to decide in a judicially meaningful way to what extent the danger to life and limb of the appellants has grown’.

177. BVerfGE 66, No. 3 p. 61, ‘It is not the Court's task … to replace the estimates and considerations of the competent political organs of the Federation by its own estimates’.

178. See statement of Helmut Schmidt at n. 105 supra.

179. But see Zivier, E., ‘Rechtsfragen der Raketenstationierung’, 65 Die Friens-Warte (1982–1985) p. 112, at pp. 114–120.Google Scholar

180. Only subsequent practice in time of war or crisis might turn NATO into a true supranational organization, see section 2.4.3 above.

181. Cf., Rojahn in Münch, op.cit. n. 140, p. 128 and Tomuschat, op.cit. n. 130, no. 118 et seq.

182. Proceedings of the House of Representatives (hereinafter, Proceedings: House), 19 March 1985, p. 2206 (the Prime Minister). As far as literature is concerned reference has to be made to: Les conséquences juridiques de l'installation eventuelle de missiles cruises et pershing en Europe, proceedings of the University of Brussels Colloquium on Cruise Missiles, 1–2 October 1983 (1984); Kernwapens en Recht, proceedings of the colloquium of the ‘Lawyers Against Nuclear Weapons’, Brussels 14 December 1985 (1985) 134 pp; van den Wijngaert, C., ‘Het juridisch debat rond de kernraketten. Een terrein-verkenning’, Rechtskundig Weekblad (1983–1984) pp. 1056–1070Google Scholar. It has to be mentioned that Members of Parliament made use of the arguments put forward in literature, although mostly not indicating their sources.

183. Ibid., Proceedings: House.

184. Ibid.

185. Proceedings: House, 15 March 1985, p. 2094, the Prime Minister (hereinafter, PM).

186. According to the PM the decision had been carefully prepared: Proceedings: House, 19 March 1985, p. 2206.

187. Constitutional aspects had not been raised in December 1979 with regard to the NATO double-decision as such during an emergency debate on the very day it was taken by the Alliance, a debate described by one Member of Parliament as the most important political debate on foreign policy since 1945 (Proceedings: House, 6 December 1979, p. 400).

188. Proceedings: House, 8 November 1983, p. 328 et seq.

189. Art. 66: ‘He confers rank in the Armed Forces. He appoints persons to posts in the general administrative departments and those connected with external relations, except in such cases laid down by law. He does not make appointment to other offices except under the express ruling of a law’.

Art. 68: ‘The King commands the Armed Forces on land and sea, declares war, makes treaties of peace, alliance and commerce. He advises the House of the contents thereof as soon as the interest and security of the State shall permit, enclosing all relevant documents. Commercial treaties and those which might affect the State or individually become binding on certain Belgians, and only become effective after they have received the consent of both Houses. No cession, exchange or addition of territory may take place save under a law of Parliament. In no case may the secret clauses of a treaty render the public clauses null and void’.

Art. 80:‘The King comes of age on his eighteenth birthday. He does not ascend to the throne until he has formally taken the following oath before both Houses meeting together: “I swear to observe the Constitution and the laws of the Belgian people to maintain national independence and the integrity of the territory”.’

190. Traditionally it has always been assumed that Arts. 66 and 68 have to be widely construed. The Executive has the power to denounce international conventions and to formulate reservations on the occasion of ratification. However, certain treaties cannot be concluded by the Executive, unless by force of law (Art. 3, Art. 68 (3)). Other treaties do require parliamentary approval (‘commercial treaties and those which might affect the State or might individually become binding on certain Belgians’) for effect within the internal legal order, this approval being sought before the treaty's ratification. But this approval must be distinguished from ‘anticipatory approval’ given with regard to treaties still to be drafted (see de Visscher, P., ‘La Constitution Belge et le droit international’, RBDI (1986) pp. 5–58, at pp. 23–24).Google Scholar This procedure could have been applied if the deployment decision had been taken in the form of a bilateral treaty with the USA.

191. Proceedings: House, 8 November 1983, p. 329, PM. See also in this regard our concluding remarks (section 4.6 infra.).

192. Art. 121: ‘No foreign troops may be admitted to the service of the State, nor may they occupy or pass through the territory, save under the terms of a law’.

Art. 25 bis: ‘The exercise of specific powers may be attributed to an institution of public international law, by treaty or by law’.

193. Proceedings: House, 8 November 1983, p. 329.

194. Ibid. The Act of 11 April 1962 authorizes the transit and stay in Belgium of troops allied with Belgium by the North Atlantic Treaty.

195. See n. 12 supra, the PM when he was referring to the Act's explanatory note.

196. Proceedings: House, 8 November 1963, p. 330. The purpose of consultation with NATO allies was ‘to agree on the calendar for the implementation of the double decision by Belgium on its territory. This calendar will be decided upon by the Government before the end of March 1985, in agreement with the allies and shall be communicated to Parliament’. (The PM referred on 15 March 1985 to his previous statement on the matter on 21 January 1985: Proceedings: House, 15 March 1985, p. 2093).

197. Proceedings: Senate, 22 March 1985, p. 2016. The PM did not go so far as to explicitly state that the decision was taken precisely and exclusively on the basis of the 1962 Act. Fifteen months earlier the opposition had already voiced the view that the Government was basing its line of reasoning, completely and exclusively on the 1962 Act in order to declare that the decision to deploy was and had to be its own (Proceedings: House, 8 November 1983, p. 297).

198. On just one occasion did the Prime Minister refer explicitly to a principle of international law as the legal basis for the deployment decision when he stated: ‘Pacta sunt servanda, there has been no other motive involved. That is the crux of the matter’ (Proceedings: Senate, 22 March 1985, p. 2019). It is rather unclear what the PM meant: was he referring to conventional obligations arising out of the NATO treaty, or had he in mind the 1979 decision conferring upon it a conventional nature? The first interpretation seems to be the most likely.

199. Proceedings: House, 12 December 1979, p. 474. After having established the consensus within NATO, the Belgian delegation announced that its Government agreed to the decision stressing, however, that its implementation on Belgian territory had to be confirmed in May 1980, after consideration of the eventual positive reply from the Soviet Union to the NATO appeal and which had to show itself capable of bringing about a balance by practical measures. (Proceedings: House, 15 March 1985, p. 2092, PM).

200. Proceedings: Senate, 7 December 1983, p. 462; Proceedings: House, 14 February 1984, pp. 1711–1713; Proceedings: House, 19 March 1985, pp. 2205–2206; Proceedings: Senate, 23 June 1983, p. 2016.

201. Proceedings: House, 23 June 1983, p. 3344. Agreements in simplified form, although not provided for in the Belgian constitution have been accepted in caselaw on the condition, however, that such agreements have to be submitted for parliamentary approval if they fall, by their content, within the categories listed in Art. 68(2) and (3). Imprecision in this regard should be rectified by amending the Constitution along the lines of Art. 59, in fine (BundesVerfassung) or Art. 60(1) of the Dutch Constitution (see De Visscher, loc.cit. n. 190, p. 29).

202. Ibid., and Proceedings: House, 8 June 1984, p. 3206; Proceedings: House, 14 February 1985, p. 1711. In order to be opposable to individuals a treaty has to be published according to current caselaw and the Act of 31 May 1961, Art. 8. However, secret treaties may be made which have to be communicated to the Houses of Parliament as soon as the interest and security of the State allow this to happen, coupled with appropriate additional information; in no way are secret provisions capable of rendering null and void their public counterparts (Art. 68 (1) and (3)).

203. The qualification of the July 1982 documents, exchanged between Belgian and American authorities as agreements has been confirmed by the Belgian Foreign Secretary, with explicit reference to Art. 68 of the Constitution (Proceedings: House, 14 February 1985, p. 1711).

204. Proceedings: House, 15 March 1985, p. 2093, PM.

205. Ibid. This point of view, according to which the decision of 14 March 1985 was only a contracting out of the 1979 NATO decision has been attacked by the opposition who claim that it has to be regarded as a new political commitment: Proceedings: Senate, 22 March 1985, p. 1973, and Proceedings: House, 19 March 1985, pp. 2210 and 2214.

206. Proceedings: House, 8 November 1983, p. 300.

207. Ibid., p. 301.

208. Proceedings: House, 8 November 1983, pp. 305 and 306; Proceedings: Senate, 7 December 1983, pp. 440–441; Proceedings: House, 19 March 1985, p. 2215; Proceedings: Senate, 22 March 1985, p. 1974.

209. Proceedings: House, 8 November 1983, pp. 320–321.

210. ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. In case of a treaty concluded with the USA on the deployment of cruise missiles on Belgian territory linked to a one-key system, application of Art. 46 of the Vienna Convention, on the invalidity of treaties, could eventually arise given the constitutional controversy during the parliamentary debate and the fundamental importance of the provisions involved.

211. Nuclear Tests case (Australia v. France), ICJ Rep. 1974, p. 253, Para. 30.

212. Art. 53 of the Vienna Convention on the Law of Treaties.

213. Official Gazette (20 April 1962) p. 3270.

214. Proceedings: House, 14 February 1985, p. 1699.

215. Proceedings: Senate, 1 March 1962, pp. 745–754. Documents: House of Representatives, 1983–1984, no. 784.

216. Proceedings: Senate, 1 March 1962, p. 749, the Foreign Secretary. This position — the consent was considered to have been given implicitly — was held until 1960 when the first doubts began to appear.

217. Ibid., and other Members of Parliament at p. 751.

218. Ibid., and at pp. 750–751.

219. Proceedings: House, 1 March 1962, p. 750 and p. 752, the Foreign Secretary. Normative internal measures in execution of an international treaty are within the Legislature's or the Executive's competence if the latter holds its own regulatory power on the basis of the Constitution or on the basis of a particular law adopted in accordance with Art. 78. In other words, there is no reason for such measures on the sole basis of a treaty or the law approving it, unless there is an explicit and unequivocal provision in this regard; see De Visscher, loc.cit., n. 190, pp. 26–27.

220. Documents: Senate, 1961–1962, no. 82, pp. 1–2 and Proceedings: Senate, 1 March 1962, p. 751.

221. Proceedings: Senate, 1 March 1962, p. 753, Senator Rolin.

222. Documents: House, 1959–1960, no. 646(1) p. 1, and also cited in Proceedings: House, 8.11.83, p. 321.

223. Referred to during the debate on 14 February 1985, p. 1712. See also Documents: House, 1982–1983, 392, no. 2, p. 4, and the debate on 8 November 1983, p. 320.

224. See, for instance, Proceedings: House, 8 November 1983, p. 326 and Proceedings: Senate, 7 December 1983, p. 470.

225. Proceedings: House, 14 February 1985, pp. 1701–1702: it follows from Arts. 3 and 5 of the NATO Treaty that its ratification only means the agreement by the Legislature to perform certain acts within its own legal context, while the 1951 Treaty approved by Act of Parliament in 1953, only took its full effect through the adoption of the Act of 11 April 1962.

226. Proceedings: Senate, 1 March 1962, p. 745, Senator Rolin.

227. Cited by Senator Rolin, ibid.

228. Ibid., and at p. 746.

229. Ibid. Others urged the Government to make careful use of these delegated powers: Proceedings: Senate, 1 March 1962, pp. 751–752.

230. Proceedings: Senate, 1 March 1962, p. 749.

231. Once kept informed Parliament is fully competent to exercise its control over the use of its powers delegated by the Executive. The question at what particular time control and approval has or could intervene also became controversial.

The issue had been touched upon by Senator Rolin when introducing his amendment. The governmental bill in a way regularised, beforehand, every future agreement, while it is difficult to review an agreement which has already been concluded (Proceedings: Senate, 1 March 1962, p. 747). In his reply the Foreign Secretary, although explicitly dealing with the issue of nuclear missiles used the phrase ‘without the Belgian Parliament having been consulted’ (1 March 1962, p. 749). This seems to imply an opportunity for the Legislature to intervene beforehand, but not necessarily by way of normal parliamentary approval, given the use of the term ‘consultation’ which implies that the Executive sollicits the views of Parliament, but in a non-binding way.

However, the Foreign Secretary stated, while referring to nuclear missiles, that, if the question of their implantation on Belgian territory was to be realized, ‘we could not do it without the agreement of Parliament … we would be interpellated by the Houses of Parliament’ (ibid., pp. 749–750). This statement is more precise in its wording but can only be understood as pointing to an a posteriori exercise of control.

Finally, in another intervention, the Foreign Secretary spoke of keeping Parliament ‘informed’ also with regard to projects involving foreign troops (ibid., p. 753): being kept informed is less far reaching than approval or disapproval, while a project (‘projet’) seems to imply parliamentary intervention at an early stage.

The result of this debate on the timing of parliamentary intervention has not been conclusive, since the discussion was, to say the least, confusing, in particular due to the wording used by the Foreign Secretary, although the majority leader of the Senate stated that his group understood the Foreign Secretary as having said ‘without Parliament being given the opportunity beforehand to express its approval’ (ibid., p. 754), nuclear bases could not be implanted.

232. Proceedings: House, 8 November 1983, p. 300; Proceedings: Senate, 7 December 1983, p. 470.

233. Proceedings: House, 8 November 1983, pp. 310–311. See also ibid., p. 329 (PM), and Proceedings: Senate, 7 December 1983, p. 462 (Foreign Secretary).

234. Proceedings: House, 8 November 1983, p. 311 and the Foreign Secretary before the Proceedings: Senate, 7 December 1983, p. 462.

235. Proceedings: House, 8 November 1983, p. 327.

236. Proceedings: Senate, 1 March 1962, pp. 746–747, Senator Rolin. His amendment reads: ‘The previous provision does not contain an authorization to service or construct launching platforms or to store nuclear ammunition for medium — or long — range missiles’; Documents: Senate, 1961–1962, no. 119.

237. Proceedings: Senate, 1 March 1962, p. 747, Senator Rolin.

238. Ibid.

239. Ibid.

240. Rolin's amendment was understood in this evident way by his colleagues at that time (1 March 1962, p. 751): the Government is not allowed to include nuclear ornaments all and sundry into the executive agreements which have been provided for by the law proposal. It would be necessary to ask Parliament to create a special Act to that effect.

241. Proceedings: Senate, 1 March 1962, p. 752.

242. Ibid., pp. 746–747, Senator Rolin.

243. General Assembly Resolution, 1664 (XVI) 4 December 1961: adopted by 58 votes to 10 with 32 abstentions. Belgium voted against.

244. Proceedings: Senate, 1 March 1962, p. 748, Senator Rolin.

245. Ibid., p. 749, Foreign Secretary.

246. Ibid.

247. Ibid., 1 March 1962, p. 750.

248. Ibid., p. 752.

249. Ibid., p. 753.

250. Ibid., p. 754.

251. Ibid.

252. Ibid., p. 762. Proceedings: Senate, 7 March 1962, p. 795: 93 in favour, 32 against with 11 abstentions. The bill had previously been adopted by the House of Representatives, on 22 November 1961, by 124 votes in favour, 47 against with 3 abstentions.

253. See also Beirlaen, A., ‘Quelques aspects constitutionnels concernant le problème de l'utilisation la menace d'utilisation et la détention de l'arme nucléaire’Google Scholar, in Brussels Colloquium, 1983, op.cit. n. 182, pp. 2–3. De Visscher rightly spoke of the Government minimising the scope of the 1962 debate; loc.cit. n. 190, p. 48, fn. 179.

254. Proceedings: House, 8 November 1983, pp. 329–330, PM. See also the majority spokesman at p. 322.

255. Ibid., p. 335, PM. Members of the parliamentary majority at pp. 311 and 322.

256. Proceedings: Senate, 7 December 1983, p. 462: the Foreign Secretary quoted the position taken by the PM before the House of Representatives and once again confirmed on 14 February 1985.

257. Proceedings: Senate, 7 December 1983, p. 483, Foreign Secretary. It was considered only to be a moral commitment (Proceedings: House, 8 November 1983, p. 325), a political declaration to be distinguished from the legal content of the Act of 11 April 1962 (ibid., at p. 326).

258. Proceedings: House, 8 November 1983, pp. 297–298.

259. Ibid., p. 300.

260. Ibid., p. 327; this was one of the reasons for the re-introduction of the Rolin-amendment.

261. Ibid., p. 328; Proceedings: Senate, 7 December 1983, p. 433, and p. 483.

262. Proceedings: House, 8 November 1983, p. 331.

263. Proceedings: Senate, 7 December 1983, p. 433.

264. Ibid.

265. Proceedings: House, 14 February 1985, p. 1702.

266. Ibid., p. 1703; this was another reason for the re-introduction of the Rolin-amendment.

267. Proceedings: House, 8 November 1983, p. 298; and Proceedings: House, 14 February 1985, p. 1698.

268. Proceedings: House, 8 November 1983, p. 298. The Government was challenged by the opposition to do so: ibid., p. 300.

269. Documents: House, 1983–1984, no. 784. An analogous proposal had been introduced before the Senate documents: Senate, 1983–1984, no. 389.

270. Proceedings: House, 14 February 1985, p. 1697 et seq.

271. Ibid., pp. 1700–1701, 1703; supporters of the proposal agreed with its scope as indicated by the author.

272. Ibid., p. 1712, Foreign Secretary.

273. Ibid., pp. 1711–1714.

274. Ibid., p. 1715.

275. Ibid., p. 1723 (90 votes against, 54 in favour and 8 abstentions).

276. Documents: House, 1983–1984, no. 784, p. 2.

277. Ibid., at p. 2.

278. Ibid.

279. Ibid.

280. Ibid., at p. 7.

281. Ibid., at p. 10.

282. Ibid.

283. For the text of Art. 25 bis see n. 192 supra. Art. 25 reads: ‘All powers stem from the nation. They are exercised in the manner laid down by the Constitution’.

284. De Visscher, loc.cit., n. 190, p. 17.

285. Proceedings: House, 6 December 1979, p. 410 (opposition).

286. Proceedings: House, 7 December 1979, p. 432, Secretary of Defence.

287. Proceedings: House, 8 November 1983, p. 299. See also in this regard the article by Fried, J., ‘NATO States are not Obligated to Participate in Nuclear War’, in Brussels Colloquium, 1983Google Scholar, op.cit. n. 182, pp. 55–61.

288. Proceedings: House, 8 November 1983, p. 299.

289. Ibid., p. 300.

290. Ibid., pp. 305–306, Proceedings: Senate, 7 December 1983, pp. 440–441; Proceedings: House, 19 March 1985, p. 2212.

291. Proceedings: House, 8 November 1983, p. 329.

292. Beirlaen, loc.cit. n. 253, p. 1. Beirlaen, A., ‘Deployment and Use of Cruise Missiles in Belgium and the Problems of Sovereignty’ (in Dutch) in Colloquium Brussels, 1985Google Scholar, op.cit. n. 182, pp. 9–17 at pp. 10 and 14.

Even if an attribution of the exercise of certain powers has been effectuated by the ratification of the North Atlantic Treaty, this could only concern powers or competences which are indespensable within the context of the specific purposes of the Treaty.

293. Proceedings: House, 8 November 1983, pp. 333–334; Proceedings: Senate, 7 December 1983, p. 471; Proceedings: House, 14 February 1985, pp. 1700 and 1715; Proceedings: House, 19 March 1985, pp. 2212 and 2215; Proceedings: Senate, 22 March 1985, p. 1974.

294. Proceedings: House, 9 November 1983, p. 384, see also the Foreign Secretary before the Proceedings: Senate, 22 March 1985, p. 2011.

295. Proceedings: House, 15 March 1985, p. 2094. The Prime Minister here draws a distinction between the collective consultation and the taking of a decision to use, but by doing so, he did not dispel the objection with regard to the exclusive US power on the use of the cruise missiles, even after collective consultation, although the treaty does not provide for an obligation to consult the members of the alliance before an important decision is taken (Proceedings: House, 19 March 1985, p. 2210).

296. Proceedings: Senate, 7 December 1983, p. 440; Proceedings: House, 19 March 1985, p. 2210.

297. Fried, loc.cit. n. 287, p. 57.

298. Proceedings: House, 19 March 1985, p. 2210.

299. Ibid.

300. Not every aspect of this international legal context has been touched upon in the parliamentary debate; for instance the impact of the right to life and the right to development have not been mentioned; see in this regard Willems, J.C., ‘Nuclear Weapons and Human Rights’, in Colloquium Brussels 1985Google Scholar, op.cit. n. 182, pp. 57–91 (in Dutch).

301. Proceedings: House, 12 December 1979, p. 473. On the principle of equality and equal security, established as a consequence of the factual military parity between the two major Powers, see Oeser, E., ‘Some Legal Aspects of the Deployment of New US Nuclear Weapons in Western Europe’, in Brussels Colloquium, 1983Google Scholar, op.cit. n. 182, pp. 96–99 and Stuby, G., ‘L'accord de décembre 1979 sur le déploiement des missiles américains en Europe viole le principe de l’égalité et de la sécurité égale’, in the same publication, pp. 100–106.Google Scholar

302. The issue had been raised to a certain extent in relation to the problem of Art. 25 bis of the Constitution. Proceedings: House, 8 November 1983, pp. 301–305, p. 306; Proceedings: Senate, 7 December 1983, pp. 440–441 and pp. 458–459 with reference to the Shimoda judgment of the Tokyo District Court (7 December 1963); Proceedings: House, 19 March 1985, p. 2213.

For a very detailed analysis of the theoretical and doctrinal debate on the justifications for the use of nuclear weapons, see David, E., ‘Examen de certaines justifications théoriques à l'emploi de l'arme nucléaire’, in Brussels Colloquium 1983Google Scholar, op.cit. n. 102, pp. 4–40. In a very systematic and convincing way this author rejects the following arguments:

— State conduct and voting pattern on UN resolutions prove the existence of a tacit agreement on the legality of the use of nuclear weapons.

— even if international law forbids this use, self-defence, reprisal or state of emergency could justify the use of nuclear weapons.

303. See, in this regard, van den Wijngaert, C., ‘Les euromissiles et le droit international’, Brussels Colloquium, 1983Google Scholar, op.cit. n. 182, pp. 109–114; Verhaegen, J., ‘Choix des armements et responsabilités pénales’, in the same publication pp. 115–118Google Scholar; Andries, A., ‘L'emploi de l'armee nucléaire est un crime de guerre. Une vérité exclue du débat sur les euromissiles’, La Revue nouvelle (1983) p. 315 et seq.Google Scholar; Verhaegen, J., ‘Le problème pénal de la dissuasion nucléaire’, La revue de droit pénal et de criminologie (1984) pp. 5–30Google Scholar; Andries, A., ‘Pour une prise en considération de la competence des juridictions pénales nationales à l’égard des emploi d'armes nucléaires’, La revue de droit pénal et de criminologie (1984) pp. 31–98.Google Scholar

304. Government and opposition disagreed as to the inherent indiscriminate nature of any use of cruise missiles: Proceedings: House, 19 March 1985, pp. 2213–2214.

305. See also Fried, J., ‘The Use of Eurostrategic Nuclear Weapons is Incompatible with the NATO Treaty Itself’, in Brussels Colloquium, 1983Google Scholar, op.cit. n. 182, pp. 56–58.

306. Doubts were raised by a French lawyer as to the relevance of the treaty in this respect, since according to American declarations, not contested by the Soviet Union, the treaty would terminate ipso facto in case of war between nuclear powers without any need to invoke Art. X and the attribution of a second key is not covered by the term control embodied in Arts. I and II: Fischer, G., ‘Quelques réflexíons sur l'installation et l'utilisation des missiles en Europe’, in Brussels Colloquium, 1983Google Scholar, op.cit. n. 182, pp. 44–54, at p. 46. These points have not been raised during the parliamentary debate.

307. See also Vincineau, M., ‘Quelques réflexions sur le traité de non-prelifération et sur la convention sur l'interdiction d'utiliser l'environnement à des fins militaires’, Brussels Colloquium, 1983Google Scholar, op.cit. n. 182, pp. 119–121, at p. 120.

308. See also Fried, loc.cit. n. 305, p. 58: European NATO States which harbour Eurostrategic nuclear weapons could not claim the immunity of neutrals even if they prohibit the USA to use the weapons.

309. Proceedings: House, 9 November 1983, pp. 384–385.

310. Ibid., p. 390.

311. The Foreign Secretary added that this was not yet the case for Belgium since the Protocol had not been ratified at that time (ibid). In the meantime the instruments for ratification of both Protocols were deposited with the Swiss authorities on 20 May 1986, the Protocols entered into force for Belgium on 20 November 1986.

312. Proceedings: House, 15 March 1985, PM.

313. Ibid.

314. Council of State, judgment of 4 November 1985 (case no 25.797) and of 26 November 1982 (case no. 22.690).

315. The following remarks were formulated by Suetens, L. in Rechtskundig Weekblad (20 December 1986) pp. 1091–1092.Google Scholar

316. Ibid., and de Meijer, J. in Rechtskundig Weekblad (1982–1983) pp. 1924–1930.Google Scholar

317. L. Suetens in op.cit. n. 315, p. 1094.

318. National defence and external relations are a governmental facet (‘un fait gouvernemental’). It is up to the Government, and t the Government alone, to decide in these matters: the foreign Secretary before the Senate, 7 December 1983, p. 462; Proceedings: Senate, 22 March 1985, p. 1984; the decision is ‘un acte de gouvernement’. This was closely linked of course to the controversy over the respective constitutional competence of the Legislature and the Executive.

319. Proceedings: House, 9 November 1983, p. 407.

320. De Visscher, loc.cit. n. 190, p. 27.

321. See also the publications referred to in n. 182.

322. The special powers Acts of 2 February 1982; 6 July 1983; and 27 March 1986.

323. Proceedings: House, 7 December 1979, p. 417.

324. Proceedings: House, 12 December 1979, p. 480. A simple motion was carried by Parliament on 12 December 1979: 130 in favour 48 against, 8 abstentions.

325. A simple motion, whether or not linked to confidence in the Government, is aimed at avoiding a vote on the merits of an issue (Proceedings: House, 8 November 1983, p. 300). Consequently, the view expressed in 1983 that Parliament would be given an opportunity to control the Executive with regard to its decision on deployment, by giving or withholding its confidence, on the well- or ill-founded basis of that measure, is not correct (Proceedings: House, 8 November 1983, p. 325).

326. Proceedings: House, 12 December 1979, p. 482. This kind of position was deliberately qualified as equivocal: Proceedings: House, 14 February 1985, p. 1703.

327. Proceedings: House, 12 December 1979, p. 482.

328. Proceedings: House, 8. November 1983, p. 330.

329. Proceedings: House, 14 February 1985, p. 1703.

330. Ibid., pp. 1705 and 1709; Proceedings: House, 19 March 1985, p. 2206

331. Proceedings: House, 14 February 1985, p. 1714.

332. Proceedings: House, 19 March 1985, p. 2211.

333. Proceedings: House, 14 February 1985, p. 1709.

334. Proceedings: House, 19 March 1985, p. 2247.

335. See, in this sense, also Zivier, E., ‘Rechtsfragen der Raketenstationierung’, 65 Die Friedens-Warte (1982/1985) pp. 112–123, at p. 119.Google Scholar

336. Ibid., p. 121.

337. Cf., Ergec, R., ‘Le contrôle juridictionnel de l'administration dans les matières qui se rattachent aux rapports internationaux: actes de gouvernement ou réserve du pouvoir discrétionaire’, 63 RDIDC (1986) p. 72 et seq., at pp. 79–80.Google Scholar