The legislation governs both the legal status of foreign forces in Germany (I.) and the legal status of Bundeswehr personnel abroad (II.).
I. The status of foreign forces in Germany
The access of foreign forces to German territory and their presence on it rests on a special legal basis, whereby a fundamental distinction must be drawn between the right of presence and the law governing the stationing of troops. The right of presence derives from the required formal consent given by the Federal Republic of Germany to the presence of foreign armed forces within its territory and therefore concerns the question of whether foreign armed forces are actually permitted to be present in Germany. The law governing the stationing of troops defines the specific rights and obligations of foreign armed forces (the “form” of their presence) in Germany.
1. The right of precence
The Convention on the Presence of Foreign Forces in the Federal Republic of Germany of 1954
After the end of World War II, the presence of foreign armed forces in Germany was initially based on the law imposed by the occupying powers. This regime ended on 5 May 1955 with the entry into force of the Convention on Relations between the Three Powers and the Federal Republic of Germany of 26 May 1952 (Federal Law Gazette 1955 II p. 303). However, on 23 October 1954, the Convention on the Presence of Foreign Forces in the Federal Republic of Germany (Federal Law Gazette 1955 II p. 253) between Germany and eight partners (Belgium, Canada, Denmark, France, Luxembourg, the Netherlands, the United Kingdom of Great Britain and Northern Ireland, and the United States of America) had already created a treaty basis for the continued, long‑term presence of foreign forces stationed in Germany. This open-ended Convention remains effective following the conclusion of the Two plus Four Treaty (Treaty on the Final Settlement with respect to Germany of 12 September 1990, Federal Law Gazette 1990 II p. 1317), but can now be terminated by giving two years’ notice (Exchange of Notes of 25 September 1990, Federal Law Gazette 1990 II p. 1390 and of 16 November 1990, Federal Law Gazette 1990 II p. 1696).
Consent of the Federal Government in individual cases
Alongside this right to station troops in Germany permanently granted under the Treaty, the Federal Government may, as needed and on a case-by-case basis, consent to the temporary presence of foreign armed forces in the territory of the Federal Republic, e.g. for the purpose of joint exercises with Bundeswehr formations.
The new Länder
The right of presence of the former Soviet armed forces on the territory of the former German Democratic Republic (GDR) was governed by the Treaty on Relations between the GDR and the Soviet Union of 20 September 1955 (GDR Law Gazette 1955 I p. 917). The withdrawal of the Soviet forces after German reunification was governed by the Treaty on Conditions for the Temporary Stay in and Modalities for the Phased Withdrawal of Soviet Forces from the Territory of the Federal Republic of Germany of 12 October 1990 (Federal Law Gazette 1991 II p. 256) and the German‑Soviet Agreement on Certain Interim Measures of 9 October 1990 (Federal Law Gazette 1990 II p.1654). The complete withdrawal of the Soviet troops from Germany was accomplished in 1994 in fulfilment of these Treaties. Pursuant to Chapter I Section I (3) of Annex I to the Unification Treaty of 31 August 1990 (Federal Law Gazette 1990 II p. 889), the Convention on the Presence of Foreign Forces in the Federal Republic of Germany of 1954, which gives the armed forces of Germany’s partners the right to permanently station assets in the territory of the old Länder, does not in principle apply in Land Berlin, Land Brandenburg, Land Mecklenburg‑Western Pomerania, the Free State of Saxony, Land Saxony‑Anhalt and the Free State of Thuringia. Correspondingly, Art. 5 (3) of the Two plus Four Treaty stipulates that foreign armed forces and nuclear weapons or their carriers will not be stationed in that part of Germany or deployed there.
2. The law governing the stationing of troops
a) Armed forces stationed in Germany
The rights and duties of the forces from NATO member countriesstationed in Germany permanently on the basis of the Convention on the Presence of Foreign Forces in the Federal Republic of Germany (the “form” of presence) are governed by the relevant provisions of the NATO Status of Forces Agreement (SOFA) of 19 June 1951 (Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, Federal Law Gazette 1961 II p. 1190), and the SOFA Supplementary Agreement of 3 August 1959 (Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany, Federal Law Gazette 1961 II p. 1218). The Supplementary Agreement contains detailed provisions on the most important questions regarding troops stationed in Germany. Following German unification, it was comprehensively adapted by the Agreement of 18 March 1993 (Federal Law Gazette 1994 II pp. 2594, 2598).
Content of the NATO Status of Forces Agreement and the Supplementary Agreement
The NATO SOFA and SOFA Supplementary Agreement confer, among other things, numerous fundamental privileges and immunities on the relevant forces. These include, for example, immunity as regards civil and criminal jurisdiction, and privileges with respect to personal liability, social insurance contributions as well as customs and taxation. In addition, they – especially the SOFA Supplementary Agreement – include diverse individual provisions, for example on the use of premises and the employment of local German staff by forces stationed in the country.
The legal status of NATO headquarters and their personnel in Germany is governed by the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty of 28 August 1952 (Federal Law Gazette 1969 II p. 2000) as well as the Supplementing Agreement between the Federal Republic of Germany and the Supreme Headquarters Allied Powers Europe (SHAPE) of 13 March 1967 (Federal Law Gazette 1969 II p. 2009).
The new Länder
Under Annex I Chapter I Section I (5) and (6) of the Unification Treaty, the five new Länder are also excluded from application of both the NATO Status of Forces Agreement and the Supplementary Agreement to the NATO Status of Forces Agreement. However, an Exchange of Notes of 25 September 1990 (Federal Law Gazette 1990 II p. 1251, Federal Law Gazette 1994 II p. 29) and 12 September 1994 (Federal Law Gazette 1994 II p. 3716) granted the troops of the sending states, their civilian component and their members and dependants in Land Berlin, Land Brandenburg, Land Mecklenburg-Western Pomerania, the Free State of Saxony, Land Saxony-Anhalt and the Free State of Thuringia the same legal status as in the old Länder. As, however, permanent stationing is excluded, the Federal Government decides in each individual case whether to grant the armed forces of the sending states the right of temporary presence in the new Länder.
b) The temporary presence of foreign armed forces in Germany
NATO member countries
In principle the legal status of foreign armed forces from NATO nations temporarily present in Germany is also governed by the NATO Status of Forces Agreement and the Supplementary Agreement. Supplementary provisions are derived from the Exchange of Notes of 29 April 1998 (Federal Law Gazette 1999 II p. 506) between Germany, Denmark, Greece, Italy, Luxembourg, Norway, Portugal, Spain and Turkey.
Countries participating in NATO’s Partnership for Peace(PfP)
The legal status of forces from PfP countries that are temporarily present in Germany is in principle regulated by Article 1 of the PfP Status of Forces Agreement of 19 June 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the status of their Forces, Federal Law Gazette 1998 II p. 1338), and by the NATO Status of Forces Agreement in all other respects where the PfP SOFA does not contain divergent provisions.
Visiting forces agreement
The NATO Status of Forces Agreement and the PfP Status of Forces Agreement are supplemented by arrangements concluded on the basis of the Visiting Forces Act (Federal Law Gazette 1995 II p. 554). The Visiting Forces Act allows the Federal Government to give effect by statutory instrument to such agreements with foreign states on the entry and short-term presence in Germany of their forces for the purpose of exercises, transit by land and training of units. It thus allows issues to be regulated that are not adequately covered in the NATO and the PfP Status of Forces Agreements, such as environmental protection, telecommunications and health protection. To date the Federal Government has concluded such agreements with Poland (Agreement of 23 August 2000), the Czech Republic (31 July 2003), Austria (6 November 2007), Estonia (21 November 2007), Switzerland (7 June 2010) and Hungary (27 February 2014).
Bilateral visiting forces agreements also regulate the legal status of armed forces from sending states that are party neither to the NATO nor to the PfP Status of Forces Agreements. In individual cases these may, following conclusion of a visiting forces agreement, be granted permission to be present in Germany temporarily in order to participate in joint exercises with the Bundeswehr, for instance. To date visiting forces agreements with non-NATO and non-PfP states are in place with New Zealand (Agreement of 4 November 2008) and Singapore (9 January 2009).
II. Status of Bundeswehr personnel abroad
For every mission abroad, the status of Bundeswehr personnel is governed by a bilateral or multilateral agreement with the receiving country concerned.
1. Multilateral agreements
The most important multilateral agreement is the NATO Status of Forces Agreement, which is applicable for operations within the territory of other NATO states. The states participating in NATO’s Partnership for Peace (PfP) may accede to the PfP Status of Forces Agreement of 19 June 1995 (Federal Law Gazette 1998 II p. 1338). This Agreement extends the scope of application of the NATO Status of Forces Agreement to cover operations in the PfP partner states. In future the EU Status of Forces Agreement of 17 November 2003 (Official Journal 2003/C 321/02, Federal Law Gazette 2005 II p. 18), which has not yet entered into force, is also to apply within the European Union, particularly to military and civilian staff made available to the EU by the Member States to fulfil its tasks.
2. Bilateral agreements
Outside the context of NATO and the NATO Partnership for Peace, the Federal Government concludes bilateral agreements with the respective receiving states. A recent example of such a bilateral agreement is the Agreement on regulation of the legal status of Bundeswehr personnel in the Republic of the Niger concluded between the Federal Government and the Government of the Niger on 2 September 2016.
3. United Nations missions
In the case of Bundeswehr operations abroad within the context of a United Nations mission, the legal status of Bundeswehr personnel is governed by agreements between the United Nations and the respective receiving state. A recent example is the Status of Forces Agreement between the United Nations and the Government of South Sudan concerning the United Nations Mission in South Sudan concluded on 8 August 2011.