Published: 18 July 2023 Authors: Khaled El Mahmoud and Stefan Talmon
More than any other issue, the question of the delivery of German Leopard battle tanks to Ukraine dominated both the domestic political debate and the foreign policy debate in Germany in January 2023. In addition to the question of whether Germany itself would supply such tanks, there was also the question of whether Germany would grant EU and NATO member States, which had acquired such tanks from Germany, the permission to re-export them to Ukraine, as required by the so-called end-use certificates (EUC).
In mid-January 2023, Poland indicated that it would request permission from Germany to send German-made tanks to Ukraine but that it would also be willing to send the tanks without securing Germany’s approval if Berlin did not agree to their re-export. Against this backdrop, Federal Foreign Minister Annalena Baerbock, together with her French counterpart, gave the French news channel La Chaîne Info on 22 January 2023 an interview, which received widespread attention. In response to the question of whether Germany would grant permission to Poland to export German Leopard battle tanks, Minister Baerbock replied:
For the moment the question has not been asked, but if we were asked we would not stand in the way.
The moderator then asked again: ‘I understood correctly that you said that if the Poles exported the tanks, you would not block it?’ To this, Foreign Minister Baerbock replied: ‘You got me right.’
It has long been recognised that foreign ministers can bind their State under international law by means of unilateral declarations, provided that the declaration in question is made in clear and specific terms. The International Court of Justice (ICJ) stated in the Nuclear Tests cases that ‘declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.’ If a declaration is made in a public forum such as a press conference, and with an intention to be bound, it may create a binding legal undertaking. The State is thenceforth legally required to follow a course of conduct consistent with that declaration. In these circumstances, neither any acceptance of the declaration, nor even any reply or reaction by the other State is required for the declaration to take effect. Such a unilateral declaration is made erga omnes and need not be addressed to a any particular State.
In the Nuclear Tests cases, the ICJ examined whether a statement by the French Minister of Defence that France would cease its atmospheric nuclear tests was binding under international law. The Minister of Defence had held a press conference on 11 October 1974 during which he stated twice, in almost identical terms, that there would not be any atmospheric tests in 1975 and that France was ready to proceed to underground tests. When the comment was made that he had not added ‘in the normal course of events’, he agreed that he had not. In light of the fact that the statement was not subject to any provisio such as ‘in the normal course of events’, the Court interpreted the Minsiter’s declaration as an unqualified binding legal undertaking not to conduct atmospheric nuclear tests following the conclusion of the 1974 series of tests.
The wording of Foreign Minister Baerbock’s statement that ‘we would not stand in the way’ of Poland providing tanks to Ukraine is reminiscent of the statement of Norwegian Foreign Minister Nils Claus Ihlen who on 14 July 1919 made a statement to the Danish Minister at Christiania (Oslo) ‘that the Nonvegian Govemment would not make any difficulties in the settlement of this question [of Danish sovereignty over the whole of Greenland].’ In 1933, the Permanent Court of International Justice (PCIJ) found that this unilateral declaration was legally binding on Norway under international law and that it therefore could no longer question the Danish claim to sovereignty over Greenland and, in particular, could not occupy certain territories in eastern Greenland. The PCIJ’s judgment in the Legal Status of Eastern Greenland case was ‘one of the first examples of an international judicial body ruling on actions of a Minister for Foreign Affairs which may give rise to an international commitment that is binding upon the State represented.’
In the case of Foreign Minister Baerbock’s statement during the TV interview, the only question that could have been raised was whether she spoke in her personal or in her official capacity. That she spoke in her official capacity as foreign minister may be deduced from the fact that she used the word ‘we’, which could only be understood as a reference to the Federal Government as a collegial body. The fact that the statement was made in the context of a joint interview with, and in the presence of French Foreign Minister Catherine Colonna also argues against a purely private statement.
Foreign Minister Baerbock’s declaration was made in clear and specific terms, since it was evident from the context that the moderator’s question concerned a potential Polish request for an export permission of the German-made Leopard tanks to Ukraine. However, under German domestic law the foreign minister was not compentent to decide upon such requests. During the regular government press conference on 23 January 2023, the cabinet spokesperson was asked whether the Federal Foreign Minister spoke for the Federal Government when she said that Germany would not stand in the way of the provision of Leopard II tanks to Ukraine by other States. The cabinet spokesperson replied:
If such an application were made in Germany, which is not the case at the moment, there are well-established procedures in which such a request will be answered. And we all stick to that.
The procedure is a normal administrative procedure, which is not decided in the coalition, but in the responsible body. This body is the Federal Security Council, in which such questions are decided and in which various representatives of the federal government sit.
The fact that according to Germany’s domestic law, the decision on export permissions lay with the National Security Council was irrelevant under international law. Foreign ministers can, by virtue of their function, unilaterally bind their State under international law even if they act ultra vires.
On 24 January 2023, the Polish Government submitted a formal request for permission to re-export 14 German-made Leopard battle tanks to Ukraine. Polish Prime Minister Mateusz Moawiecki said that Poland wanted to observe all the required procedures and expressed hope that Germany would respond quickly to the request. The next day, the Federal Government announced that it woud issue the required licenses to partner countries that wanted to quickly deliver Leopard 2 tanks from their stocks to Ukraine, and that Germany itself yould provide Ukraine with 14 Leopard-2-A6 tanks. Had Germany not given its approval and had Poland followed through on its announcement that it would deliver Leopard tanks to Ukraine even without a formal German export licence, Germany would have been legally obliged to act in accordance with Foreign Minister Baerbock’s unilateral declaration, and would therefore have been prevented from questioning the legality of such a Polish decision.
Category: Sources of International Law
DOI: 10.17176/20230718-111201-0
