Nuclear sharing

By Bernd Hahnfeld, Board member IALANA Germany
December 2021

Contents
1.What does nuclear sharing mean? .................................................................................. 1
2.History of Germany's nuclear sharing .............................................................................. 2
3.How is nuclear sharing currently practiced in Germany? ................................................. 3
4.What is the legal basis for German nuclear sharing? ....................................................... 4
5.Illegality of nuclear sharing .............................................................................................. 6
6.Criticism and ways out of nuclear sharing...................................................................... 10
Summary: ......................................................................................................................... 13

1. What does nuclear sharing mean?
Nuclear sharing was agreed upon by the participating countries within the framework of the NATO
Strategic Concept. In this context, U.S. nuclear weapons are stored, guarded, maintained and releasedin the event of deployment in the countries concerned. The currently participating countries Belgium,
Germany, Italy, the Netherlands and Turkey 1 provide the delivery systems and conduct the deployment.
The Bundeswehr has committed to NATO the provision of 46 nuclear-capable carrier aircrafts. It has
stationed 44 Tornados from Jagdfliegergeschwader 33 in Büchel (Eifel). There German soldiers aretrained in the use of nuclear weapons. 2
The nuclear weapons in Europe are primarily intended for NATO tasks, which also issues the order ofuse. They may and can only be used if the U.S. president has cleared them and the clearance code has
been received through a special channel of the U.S. command. The U.S. also reserves the right to deploy
nuclear weapons stored in Europe in support of CENTCOM, the regional high command responsible for
the Middle East. 3
If the US bombs stored in Germany and other NATO countries are to be used, the respective stationing
country would have to agree to their use by its own aircraft. The general expectation seems to be thatsuch a decision of deployment would be made after consultation with all NATO members, with the North
Atlantic Council having a central role. However, consultation with all allies is not a necessary
precondition. 4
In the event of a NATO use, Bundeswehr soldiers in Büchel 5 take over the deployed B16 nuclear bombs
from the U.S. Army after clearance by the U.S. President, fly them to the target sites, and drop them
there.
1 In the case of Turkey, it is unclear whether the U.S. has since removed for security reasons the nuclear weapons

previously stationed at Incirlik from the country. Turkish aircrafts have reportedly not been certified for the use of
nuclear weapons since the mid-1990s.
2 BVerfG, Order of the Federal Constitutional Court of 15 March 2018 (2BvR 1371/13)
3 Federal Agency for Civic Education, BICC 01/2013
4 Peter Rudolf, Deutschland, die Nato und die nukleare Abschreckung, Stiftung Wissenschaft und Politik, Studie 11, May
2020
5 In response to a question, the parliamentary group DIE LINKE in the Bundestag has received confirmation from theGerman government that flight operations at Büchel Air Base will be largely suspended from June 2022 to February 2026

2. History of Germany's nuclear sharing
The U.S. placed tactical nuclear weapons under NATO's control beginning in July 1953 as a key elementof Forward Strategy. The first nuclear weapons arrived in Europe (Great Britain) in September 1954.
Transfers followed to Germany between March and May 1955, Italy (1957), Turkey (1959), theNetherlands (1960), Greece (1960), and finally Belgium (1963). 6 By 1971, NATO had 7,300 nuclear
weapons in Europe, about half of which were stationed in West Germany.
German Chancellor Konrad Adenauer explicitly approved the stationing of U.S. nuclear weapons in the
FRG. 7 The German public did not learn of the existence of nuclear weapons on German state territory
until two years later on March 15, 1957, by U.S. forces. Just five days later, NATO Supreme Allied
Commander General Norstadt made the surprising announcement that in the event of war U.S. nuclear
weapons would also be handed over to allies, such as the Bundeswehr. Shortly thereafter, Chancellor
Adenauer expressed his interest in providing the Bundeswehr with nuclear delivery systems. 8 Within ten
years, Bundeswehr already had a large number of such systems. Nuclear weapons dominated military
thinking. When purchasing the Starfighter fighter-bomber, the German government even refrained fromproviding for conventional armament. 9
NATO's initial strategy of "massive retaliation" was replaced in 1968 by the strategy of "flexible response."
However, NATO explicitly kept open the option of being the first to use nuclear weapons. 10
The end of the East-West confrontation with the fall of the Berlin Wall and the disintegration of the Warsaw
Treaty Organization dramatically changed the security environment in Europe. Thousands of tactical
nuclear weapons were withdrawn under the mutually unilateral disarmament commitments of Presidents
Bush, Gorbachev, and Yeltsin in 1991-92. The number of U.S. nuclear weapons stockpiled in Europe
dropped to about 700 by July 1992 and to about 480 by the mid-1990s, and planned modernization
projects for tactical nuclear weapon types in Europe were gradually halted. 11
NATO's new strategic concept, adopted in 1991/92, continued to consider as the "supreme guarantee ofthe Alliance's security" the strategic nuclear weapons on submarines that the United States and GreatBritain would assign to NATO in the event of conflict. The sub-strategic nuclear weapons stationed inEurope are intended as a link to ensure that Europeans participate broadly in the risks, roles, missions
and responsibilities of NATO's nuclear strategy. "Adequate forces" are to remain in Europe. 12
The new Strategic Concept, adopted by NATO Allies on 19/20 November 2010, commits for the first timeto the goal of a nuclear-weapon-free world, while reaffirming the principle of nuclear deterrence until thecomplete destruction of all nuclear weapons in the world. 13
due to extensive construction work and will be relocated to Nörvenich Air Base in North Rhine-Westphalia. BTDrucksache 19/12524.
6 Wissenschaftlicher Dienst des Bundestages - WD 2 - 3000 - 102/20
7 Karl Brandstetter, Allianz des Mißtrauens, Köln 1989, S. 129
8 Ottfried Nassauer „50 Jahre Nuklearwaffen in Deutschland“ – AUS POLITIK UND ZEITGESCHICHTE (APUZ 21/2005)
9 Nassauer ibid.
10 Nassauer ibid.
11 Nassauer ibid.
12 Nassauer ibid.
13 Strategic Concept for the Defense and Security of North Atlantic Treaty Organization Members, 2010. This strategic
concept has been reaffirmed in 2020: "As long as nuclear weapons exist, NATO should maintain safe and reliable nuclear
forces ...".

In 2018, NATO justified the concept of nuclear sharing as follows: "NATO's nuclear deterrence posturealso relies on United States' nuclear weapons forward-deployed in Europe and the capabilities andinfrastructure provided by Allies concerned. National contributions of dual-capable aircraft to NATO's
nuclear deterrence mission remain central to this effort." 14
In July 2007, Der Spiegel reported that the U.S. Army had withdrawn the 130 nuclear weapons stationed
at Ramstein Airbase and that Ramstein had been removed from the list of stationing sites. 15 Since then,Germany has contributed to nuclear sharing only through the Bundeswehr's Jagdgeschwader 33
stationed in Büchel. There, 10 to 20 B61 nuclear bombs are to be stationed under U.S. Army guard. The
plan is to temporarily relocate the nuclear weapons and the aircraft to Nörvenich (NRW) from June 2022
to February 2026 due to extensive construction work in Büchel. 16
The U.S. armed forces want to keep the B61 bombs operational until 2025 at the latest. To this end, $10
billion are being allocated in the U.S. government budget to modernize the B61 bombs. These will receive
variable warheads (0.3/ 1.5/ 10/ 50 kilotons) and guidance systems with satellite navigation that will makethem much more accurate. 17

3. How is nuclear sharing currently practiced in Germany?
Although, according to a representative Forsa poll conducted in 2021, 62% of German citizens would liketo see closer cooperation between the European Union (EU) and Russia and are in favor of more
intensive EU-Russia relations, 18 international relations between NATO member states and Russia are
increasingly deteriorating. Public statements by German politicians and reporting by Germany's leading
media make a decisive contribution to this.
During NATO's annual "Steadfast Noon" fall maneuvers, Bundeswehr pilots practice dropping nuclear
bombs over Russian targets with Bundeswehr Tornados stationed in Büchel. Bundeswehr is also
practicing how to defend Büchel Air Base against attacks. The Patriot defensive missiles of theBundeswehr's Air Defense Missile Squadron 1 are intended for this purpose. 19 German Defense Minister
Annegret Kamp-Karrenbauer publicly declared in October 2021 that Germany must be prepared to use
nuclear weapons against Russia. 20 NATO plans to deploy Bundeswehr Tornados armed with nuclear
bombs to the Eastern flank (of NATO) at a certain conflict threshold. 21
At present, there is every indication that the German government assumes the long-term use of thenuclear weapons site: the German government plans to acquire new aircraft carriers to replace the 30 to
40-year-old Tornados. 22 The B61 nuclear bombs stationed in Germany and the Büchel nuclear weaponssite are being modernized, the latter among other things by refurbishing the flight operation areas andflight operation facilities. 23
14 Meeting of the North Atlantic Council at the level of Heads of State and Government in Brussels, July 11-12, 2018,

Summit Declaration, para. 35, accessed April 28, 2020, at
https://www.nato.int/cps/en/natohq/official_texts_156624.htm .
15 Spiegel.de accessed on 9.7.2007.
16 See footnote 3.
17 Nassauer ibid.
18 Ostausschuss der deutschen Wirtschaft, www.ost-ausschuss.de accessed on 2.6.2021.
19 FAZ.net accessed on 17.10.2020.
20 Deutschlandfunk.de acessed on 21.10.2021, World Socialist Website accessed on 28.10.2021, ntv on 24.10.2021.
21 FAZ.net accessed on 18.10.2021.
22 BT-Drucksache 19/19884, Handelsblatt.de accessed on 4.11.2020, DGAP.org accessed on 3.2.2020.
23 BT-Drucksache 19/27108, BT-Drucksache 19/26133

4. What is the legal basis for German nuclear sharing?
The German government has expressly consented to nuclear sharing and the stationing of nuclear
weapons at Büchel and maintains this consent. There is no legal basis for this.
The Federal Government has never introduced a bill in Bundestag to legally justify nuclear sharing. This
was not done, in particular, by the motion of the then governing parties CDU/CSU and DP in the
Bundestag. This motion, adopted by the Bundestag with the government majority on March 25, 1958,
reads as follows:"1. the Bundestag requests the Federal Government to continue to advocate, true to its
fundamental view, at all international negotiations and conferences in which it participates or overwhich it has influence,a) to advocate general controlled disarmament of both nuclear and conventional weapons,(b) to reaffirm its readiness that the Federal Republic will accept any such disarmament
agreement, thereby contributing to détente and to the solution of international problems, including
the German question.
2. as long as Communism continues to pursue its world-revolutionary aims, which it reaffirmed aslate as November 1957 at the meeting of the Communist and Workers' Parties of the socialist
countries in Moscow, peace and freedom can be secured only by a joint defense effort of the freeworld. The Bundestag notes that the Bundeswehr serves only to maintain peace and defense.
Therefore, it calls upon the Federal Government to continue the buildup of German national
defense within the framework of the North Atlantic defense community until a general
disarmament agreement is reached. In accordance with the requirements of this defense system
and in view of the armament of the potential adversary, the armed forces of the Federal Republicmust be equipped with the most modern weapons in such a way that they are able to meet the
obligations assumed by the Federal Republic within the framework of NATO and can effectively
make the necessary contribution to the safeguarding of peace.
The entire German people on both sides of the zonal border expect that the German question will
be discussed and brought closer to a solution at the coming summit conference. The Bundestag
requests the Federal Government to do its utmost to bring this about.
The Bundestag reiterates its conviction that free elections must form the basis of German
reunification. It resolutely rejectsa) the conclusion of a peace treaty for two German states,b) negotiations with the representatives of the present zonal regime,c) the conclusion of a confederation with this regime.
5 The Bundestag reaffirms its conviction that the reunification of Germany in conjunction with aEuropean security order is the most urgent task of German politics."24
Numerous other motions by the parliamentary groups on renouncing the nuclear armament of
Bundeswehr, on the general outlawing of nuclear weapons, and on the establishment of nuclear-weaponfree zones were either rejected or referred to Bundestag committees, except for one insignificant point.
The wording of the resolution is open to interpretation. The decisive passage speaks of "equipping theBundeswehr with most modern weapons." Nuclear weapons are not mentioned, nor are nuclear delivery
systems. The term “nuclear weapons” appears only once and in connection with disarmament efforts.
The fact that nuclear weapons are not named in the intended equipment of the Bundeswehr leads to the
24 Anlage 10, Umdruck 41 zum Bundestagsprotokoll 25. März 1958.

conclusion that they were not meant by "most modern weapons". The minutes of the Bundestag debate
do not provide any clarification, although own nuclear weapons for Bundeswehr were recognizably
desired by Chancellor Adenauer and by the governing parties. In the Bundestag debate, Kiesinger(CDU/CSU) clarified on behalf of the government: "Mr. President, ladies and gentlemen! Mr. Bucher's
statement compels us to declare that state-of-the-art weapons do not mean hydrogen bombs." 25
However, this does not yet indicate that the resolution meant tactical nuclear weapons. 26 The acquisitionof only nuclear weapon carriers cannot be inferred from the wording of the resolution.
None of the motions debated in Bundestag on March 25, 1958, dealt with the acquisition of nuclear
weapon carriers for the Bundeswehr. The heated four-day debate in Bundestag was primarily about
equipping Bundeswehr with its own nuclear weapons.
For the question of the legal basis of nuclear sharing, the interpretation of the Bundestag resolution ofMarch 25, 1958, is ultimately irrelevant because it never became binding formal law. Because in the
resolution of March 25, 1958, Bundestag only calls for specific government action. Bundestag does not
oblige the Federal Government to act in a certain way. So, the resolution of March 25, 1958 is comparable
to the resolution of Bundestag of March 26, 2010, in which Bundestag adopted the motion of the
CDU/CSU, SPD, FDP and Bündnis90/Die Grünen parliamentary groups on the resolution entitled"Germany must send clear signals for a world free of nuclear weapons" with a broad majority against thevotes of the Die Linke parliamentary group. With this resolution, Bundestag called on the German
government, among other things, to "also strongly advocate the withdrawal of U.S. nuclear weapons from
Germany in the development of a new NATO strategic concept within the alliance as well as vis-à-vis
U.S. allies." 27
The German government has consented to nuclear sharing in the exercise of its discretionary powers in
defense policy and has maintained this consent without giving it a legal basis. However, the doctrine ofmateriality of the Federal Constitutional Court 28 has made a formal legislative procedure mandatory. This
doctrine was developed by the Federal Constitutional Court and states that the legislature must legitimize
state action in fundamental areas through a formal law. Basis of this theory is the doctrine of thereservation of the law, rooted in the principle of the rule of law, and the parliamentary reservation, rooted
in the principle of democracy, according to which the administration may only act if it has been authorized
to do so by a formal law. Everything essential for the exercise of fundamental rights is subject to thereservation of the law. 29
These legal and factual requirements for the necessary legislative process should have been met when
the Federal Government approved nuclear sharing because the stationing and possible Bundeswehr
deployment of nuclear weapons in Büchel were and are of existential importance for the entire region
and the fundamental right to life and health of the population living there. 30
The German government has also not concluded a treaty under international law on participation inNATO's nuclear defense. 31 The nuclear strategy does not necessarily result from accession to the North

25 Bundestagsprotokoll ibid. p. 1160.

26 The B61 aerial bomb stationed in Büchel is a hydrogen bomb!

27 Deutscher Bundestag – Plenarprotokoll 17/35, Drucksache 17/1159.

28 BVerfGE 40, 237 (249); 49, 89 (126); 83, 130 (142, 151 f.); 95, 267 (307).
29 BVerfGE 47,46 ff Ziffern III, 3,530 Due to the operational deployment of nuclear weapons, the remaining deployment site at Büchel is a target forenemy nuclear first strikes or nuclear counterattacks. During the annual NATO maneuvers "Steadtfast Noon", theBundeswehr exercises the defense against expected nuclear attacks with Patriot anti-aircraft missiles.
31 BVerfG Urteil vom 22.11.2001 – 2 BvE 6/99.

Atlantic Treaty. This is because the latter does not provide for specific defense weapons or strategies. It
does not use the terms "nuclear weapons" or "nuclear arms."
Nuclear sharing is merely part of NATO's Strategic Concept, which has been agreed among the alliancestates. According to the Federal Constitutional Court ruling of 22.11.2001, it is neither a formal nor an
implied treaty. 32

5. Illegality of nuclear sharing
5.1. In Büchel (Eifel), nuclear bombs are stationed ready for use, the use of which is prohibited underinternational humanitarian law.
The Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection ofVictims of International Armed Conflicts (Protocol I) of 8 June 1977 33 states unequivocally in Article 35: "In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is notunlimited.." They may defend themselves only with weapons not prohibited by international humanitarianlaw. The use of nuclear weapons and the threat thereof are prohibited by the Geneva Conventions,according to the opinion of the International Court of Justice (ICJ) 34 because• their effects do not distinguish between combatants and civilians,• their radioactive radiation causes unnecessary agony,• they cause damage to the environment and people's livelihoods for future generations, and• they affect neutral states through cross-border fall-out.
Once nuclear weapons stationed in Büchel are used, these effects cannot be avoided. These weapons
indiscriminately affect all living beings in the target area, radiate survivors and the environment
radioactively, and send fall-out to neighboring countries through winds.
The prohibition of use under international law binds not only the state parties to the treaty, but all statesof the world under customary law. 35 It applies to all cases of self-defense invoked by the nuclear weapon
states and their allies, i.e., also in the case claimed by them of "an extreme self-defense situation in which
the very survival of a state would be at stake," which the ICJ could not decide. In the advisory opinion
proceeding, the nuclear-weapon states had claimed that they were developing new, small, supposedly
clean nuclear weapons. However, this did not happen, nor is it conceivable, because if such weapons do
not release radioactive radiation, they are not nuclear weapons.
The ICJ judges stated only with regard to the allegedly "clean" small tactical nuclear weapons, which
could not be technically ruled out at the time, "not having sufficient elements to enable it [the court] toconclude with certainty that the use of nuclear weapons would necessarily be at variance with theprinciples and rules of law applicable in armed conflict in any circumstance. " 36
In its Advisory Opinion, however, the ICJ clarifies that even in the case of an extreme self-defense
situation in which the survival of a state is at stake, any use of nuclear weapons could at most be inaccordance with international law if it complies with the stated principles and rules of international
32 BVerfG Urteil vom 22.11.2001 - 2 BvE 6/99 -RdNR 131.
33 BGBl. 1990 II S. 1551.

34 ICJ Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons (8 July 1996). In German and English in

IALANA „Atomwaffen vor dem Internationalen Gerichtshof“, Münster 1997. The ICJ Advisory Opinion may be
downloaded here: https://www.icj-cij.org/en/case/95.
35 ICJ ibid. No 78.
36 ICJ ibid. No 95.

humanitarian law. The ICJ has stated that the right of self-defense under Article 51 of the UN Charter islimited by international humanitarian law, "whatever means of force are employed." 37 A different rule forsituations of extreme self-defense in which the survival of a state is at stake cannot be inferred frominternational law and has not been set forth by the ICJ.
ICJ President M. Bedjaoui, in his statement appended to the opinion, stated: "I cannot sufficiently
emphasize that the Court's inability to go beyond this statement of the situation can in no way beinterpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of
nuclear weapons." 38
This legal opinion from the ICJ had been requested by the UN General Assembly on the basis of Article
96 of the UN Charter. In doing so, the UN General Assembly had adopted - against the bitter resistanceof the nuclear weapon states and their allies - the arguments of the worldwide initiatives of civil
movements and non-governmental organizations, including IPPNW, IALANA and the International Peace
Bureau (IPB), which had initiated the "World Court Project".
Following the ICJ's lead, the German Federal Ministry of Defense explicitly prohibited servicemen andservicewomen from using nuclear weapons in armed conflicts in its pamphlet "International Humanitarian
Law in Armed Conflicts," 2006 and 2008 editions. 39
According to the ICJ, the principles and rules of international humanitarian law are part of customaryinternational law. 40 Under Article 38 of the ICJ Statute, they are applicable international law and, inGermany, as general rules of international law under Article 25 of the Constitution, they are a primary
component of federal law.
5.2. The use of nuclear weapons and the threat thereof violate the human right to life under Article 6 of
the International Covenant on Civil and Political Rights. 41 This came into force in 1976 and is also
applicable in armed conflicts. Art. 6 literally states, "Everyone has an inherent right to life. This right shallbe protected by law. No one shall be arbitrarily deprived of his life." Germany has acceded to this pact.
The unjustifiable killing with weapons of war prohibited under international law would disregard thishuman right.
In October 2018, the UN Human Rights Committee stated in its Commentary 65 on Article 6 of the UN
Covenant on Civil and Political Rights that States Parties involved in the deployment, use, sale orpurchase of existing weapons and in the research, development, acquisition or introduction of weaponsand means or methods of warfare must always take into account their impact on the right to life. It
specifically states in Commentary 66: "The threat or use of weapons of mass destruction, in particular
nuclear weapons, which are indiscriminate in effect and are of a nature to cause destruction of humanlife on a catastrophic scale is incompatible with respect for the right to life and may amount to a crime
under international law.." 42

37

No 40, 41, 42, 78 of ICJ Advisory Opinion. No 42: “The proportionality principle may thus not in itself exclude the useof nuclear weapons in self-defence in all circumstances. But at the same time, a use of force that is proportionate under
the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict
which comprise in particular the principles and rules of humanitarian law.”
38 IALANA „Atomwaffen vor dem Internationalen Gerichtshof“, Münster 1997 p. 115. The declarations of the ICJ Judges
may be downloaded here: https://www.icj-cij.org/en/case/95/advisory-opinions.
39 Bundesministerium der Verteidigung R II 3 - Druckschrift Einsatz Nr. 03 - DSK SF009320187.
40 ICJ ibid. No 79.
41 BGBl. 1973 II S. 1534, UNTS vol. 999, p.171
42 Human Rights Committee, General comment No. 36 (2018) on article 6 of the International Covenant on Civil andPolitical Rights, on the right to life - 30 October 2018 - CCPR/C/GC/36. It may be downloaded here:
https://digitallibrary.un.org/record/3884724.

5.3 In NATO operations, after clearance by the U.S. President, Bundeswehr soldiers in Büchel receive
the B61 nuclear bombs stationed there from U.S. Army soldiers, hang them under the Tornado aircraft of
Jagdgeschwader 33, fly them to the deployment sites, and drop the nuclear bombs there. In doing so,both the U.S. and Germany are in violation of the Treaty on the Non-Proliferation of Nuclear Weapons ofJuly 1, 1968 (NPT). 43
As a party to the NPT, Germany, a non-nuclear-weapon state, is obligated under Article 2 of the NPT "notto receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive
devices or of control over such weapons or explosive devices directly, or indirectly." Similarly, under Art.
1 NPT, the U.S. is obligated " not to transfer to any recipient whatsoever nuclear weapons or other nuclear
explosive devices or control over such weapons or explosive devices directly, or indirectly.." The NPT
does not provide an exception for nuclear sharing. The German government nevertheless invokes thefact that it declared a formal reservation at the time of signature and at the time of ratification of the NPT,by which it reserved the right to dispose of nuclear weapons in the event of war.
The German government's stated reservations do not confirm this. They merely emphasize that Germany
remains committed to NATO’s system of collective security. The declarations do not designate theweapons with which, according to NATO's collective security rules, the protection of the Federal Republicof Germany should be ensured. Although the special interest of the Federal Republic of Germany was
the continued existence of nuclear sharing and the safeguarding of the European option, 44 nuclear
weapons are not explicitly mentioned in the declarations. The wording of the declarations 45 does notpreclude NATO from defending the Federal Republic of Germany exclusively with conventional weaponssystems. Nor does it follow from the declarations that the nuclear sharing already practiced at that time
was to be continued after the entry into force of the NPT.
In interpreting reservations under Article 31 of the Vienna Convention on the Law of Treaties (VCLT) 46,
the wording is decisive, irrespective of what the parties subjectively meant by the formulations used when
they concluded the treaty. 47 Moreover, under Article 19 lit c of the VCLT, only reservations that are notincompatible with the object and purpose of the treaty are permissible. With the transfer of nuclear
weapons, the NPT would be practically undermined, because its purpose is that nuclear weapon states
may not transfer nuclear weapons to non-nuclear weapon states and that the latter may not exercise any
power of disposal over nuclear weapons. Further provisions are not contained in Art 1 and 2 NPT. The
continued application of nuclear sharing (i.e. the transfer of the power to dispose of nuclear weapons in
the event of war) even after the entry into force of the NPT would reverse the wording and the purposeof the NPT. Pursuant to Article 19 lit c of the VCLT, it cannot be the content of a reservation underinternational law and is ineffective as a reservation. 48
The declarations of the German government can only be regarded as interpretative declarations. These
differ from a reservation in that they are not intended to exclude or amend a treaty provision, but merely
to clarify it. 49 Even more than a reservation, an interpretation must not contradict the unambiguous
wording or the object and purpose of the treaty as a whole. This would be the case, however, with the"clarification" of the Federal Government, which means a transfer of the power to dispose of nuclear
43 BGBl. 1974 II S. 786.

44 Matthias Küntzel, Bonn und die Bombe, Deutsche Atomwaffenpolitik von Adenauer bis Brandt, Frankfurt/M. 1992, p.

143.
45 Bernd Hahnfeld, Nukleare Teilhabe ist völkerrechtswidrig, W&F 2/2020 p. 46 ff.
46 BGBl 1985 II p. 927.
47 Wolfgang Graf Vitzthum in Wolfgang Graf Vietzthum, Völkerrecht 4. Auflage, 1.Abschnitt RdNr. 123; von Heinegg ibid.
§ 12 RdNr. 12.
48 Bernd Hahnfeld ibid.
49 von Heinegg ibid. §15 RdNr. 4

weapons in the event of war. It is inadmissible under Article 31(1) of the VCLT and, correspondingly,
Article 19(c) of the VCLT and thus has no legal effect. Possible concurring bilateral interpretations by theGerman and U.S. government (Rusk letter), which would render the core provisions of the NPT invalid in
the event of war, do not call into question the effectiveness of the NPT and do not entitle the two states
to breach the treaty. 50
Nor does the practice of dropping nuclear bombs, which has been practiced since the existence of
nuclear sharing, require a different assessment. It is true that according to Article 31 (3) (b) of VCLT "anysubsequent practice [shall be taken into account] in the application of the Treaty". However, only if it"establishes the agreement of the parties regarding its interpretation." The protests of numerous nonnuclear-weapon states against nuclear sharing argue against this.
NATO states continue to invoke the so-called "reservation of war." According to this, the NPT is supposedto cease to apply when "a decision to go to war is made" ("at which point the treaty would no longer beauthoritative"). 51 If this publicly concealed reservation of war were effective under international law, it
would render the NPT and its prohibition on the transfer of nuclear weapons to non-nuclear-weapon
states in the event of tension and war practically invalid.
Evidence that a formal reservation to Article 2 of the NPT would be effective under international law has
not yet been presented to the public. There are weighty objections under international law to its
effectiveness, both in terms of procedure (lack of proven notification to the NPT parties in accordancewith Art. 23 of the VCLT) and in terms of substance (compatibility within the meaning of Art. 19 of the
VCLT with the object and purpose of the NPT).
The transfer of nuclear weapons to soldiers of the Bundeswehr violates the NPT. If the transport to thetargets and the dropping of the nuclear weapons are illegal under international law, the deployment of
the weapons and the operational exercises with nuclear weapons by the Bundeswehr cannot be justified
under international law.
Upon ratification, the NPT became international treaty law to be applied domestically pursuant to Article
59 (2) of the Constitution and, pursuant to Article 20 (3) of the Constitution, also obligates the Federal
Government and the soldiers of Bundeswehr.
5.4 Criminal proceedings for crimes under international law must be instituted against all persons
participating in the use of nuclear bombs. They must justify themselves, among other things, for crimes
against humanity according to § 7 and war crimes according to § 8 of the German Völkerstrafgesetzbuch(VBstGB). Under Section 7 of the VStGB, the killing of human beings in the course of an extended orsystematic attack against the civilian population is punishable, and under Section 8 of the VStGB, thekilling of persons protected by international humanitarian law in an armed conflict is punishable. 52 "Acting
under orders" does not excuse a soldier because the ICJ opinion considers any use of nuclear weapons
to be a violation of international humanitarian law. All soldiers have also been prohibited from using

50 Bernd Hahnfeld ibid.

51 Cf. the memorandum of the Federal Foreign Office submitted to the German Bundestag by the Federal Government

for the deliberation of the Consent Act prior to ratification of the NPT. In this memorandum, the corresponding U.S.
"interpretative statement" ("Rusk letter") is reproduced and also published in Bundestagsdrucksache 7/994, p. 17.
However, it was and is hardly taken note of publicly. Bundestagsdrucksache 7/994 can be viewed here:
http://www.ialana.de/images/pdf/arbeitsfelder/atomwaffen/atomsperrvertrag/Seite_16-20_aus_0700994.pdf.
52 Bernd Hahnfeld, Die Nuklear-Strategie der NATO - Das Völkerrecht und strafrechtliche Konsequenzen, Wissenschaft
und Frieden 2/2005 S. 39 – With the International Criminal Code of June 26, 2002, Germany incorporated the elementsof crime regulated in the Rome Statute of the International Criminal Court into German substantive criminal law.

nuclear weapons on legal grounds by the Federal Ministry of Defense's "Pocket Card on International
Humanitarian Law to be Observed in Armed Conflict" (2006 and 2008 editions).

6. Criticism and ways out of nuclear sharing
After the end of the Cold War, U.S. nuclear weapons in Europe have primarily served a politicalpsychological function from NATO's perspective. They sent a signal that nuclear deterrence also applied
to its new members, that NATO countries could not be divided, and that responsibility for nuclear policy
was shared. By contrast, these weapons had largely lost their specific military function. 53 They havebecome militarily redundant.
The current development of small, pinpoint warheads for the small-warhead Trident missiles deployedon 14 U.S. Navy Ohio-class nuclear-powered submarines have enabled the U.S. Navy to carry out limited
nuclear strikes at any location. 54 The risky transport of tactical nuclear weapons by means of flights into
enemy territory, with the high risk of being shot down 55, is thus rendered superfluous. In addition, the useof Trident missiles eliminates the need for the U.S. to consult with its allies as provided for in NATO.
In recent years, an increasing deterioration of the political climate between the U.S./NATO/EU and Russia
can be observed. NATO and Russia are building a mutual military threat scenario in which nuclear
weapons play a crucial role. For example, in July 2021, in view of Russian cyberattacks, U.S. President
Biden threatened to defend the United States with nuclear weapons if another major power were todamage U.S. infrastructure through a major cyberattack. 56 On October 21, 2021, German Defense
Minister Kamp-Karrenbauer threatened Russia with the use of nuclear weapons as part of NATO's
deterrence strategy. 57 According to a report in the FAZ, German soldiers practiced using nuclear bombs
against Russia during NATO's "Steadtfast Noon" exercise in Büchel in the fall of 2020. 58
Germany's military role in this context is contradictory. On the one hand, nuclear bomb missions with
Tornados stationed in Büchel make little military sense. On the other hand, German politicians again feel
actively involved in NATO's nuclear deterrence strategy. The maintenance of nuclear sharing can only
lead to the conclusion that it serves - without military benefit - to bind the allies more closely to NATO’s
leading power, the USA, and to involve them in its conflicts. This should give Germany cause to reflect
on the meaningfulness of participation in nuclear deterrence.
All concepts and strategies of nuclear deterrence assume that a potential adversary can be effectively
deterred from a nuclear attack by threatening it with a military counterattack that will lead to unacceptableconsequences and damage, if not to complete annihilation in a nuclear inferno.
A constitutive element for the "functioning" of this strategy of deterrence, however, is always that one has
to deal with a rationally calculating opponent who makes exclusively rational decisions on the basis ofsufficient and also ad hoc available information. According to its own "logic", the concept of deterrence
cannot work if it is about deterring an "irrational" opponent. This can be the case, for example, if the
opponent is not amenable to "rational" arguments, i.e. if he is - for whatever reason - unable or unwillingto use rational reasoning. Historical examples of such "deterrence-resistant" opponents are not exactly

53 Bundeszentrale für politische Bildung, BICC 01/2013.

54 Ottfried Nassauer „Nukleare Teilhabe – überholtes Konzept ohne Funktion“, Bits.de accessed on 18.4.2020.
55 Wissenschaftlicher Dienst des Bundestages - WD 2 - 3000 - 035/20.
56 DeutscheWelle on 28.7.2021.

57 WSWS.ORG accessed on 28.10.2021, FR-online.de accessed on 24.10.2021, Spiegel.de accessed on 25.10.2021.
58 FAZ.de accessed on 17.10.20.

rare, at any rate, in the 20th century, the bloody "age of extremes"; imagine if they had had nuclear
weapons. 59 Current world politics shows similar dangers.
But even if one is dealing with a principally "rational adversary," the functionality of nuclear deterrence
depends on this adversary having sufficient temporal and informational capacities available according to
the concrete circumstances to be able to assess and judge critical decision-making situations to thenecessary degree and to draw responsible conclusions from them in the scarce time available. It is highly
questionable and uncertain that this is the case - when it matters for the survival of mankind. 60"Logic" of deterrence also fails to work and reaches dangerous limits if human errors of judgment or"technical failure" take effect. This is the case, for example, if electronic misinformation creeps into
communications systems or other defects take effect that make it very difficult or even impossible for theother side, given very short warning times, to diagnose with certainty whether or not the data available
from the computer systems, for example, indicate an enemy attack in the specific decision-making
situation. 61
In the past 70 years, there have been at least twenty extremely critical situations in the SU/Russia andthe U.S. in which the world was on the brink of nuclear inferno. In these instances, the world escaped
nuclear catastrophe solely due to very fortunate circumstances. In the past decades of the nuclear age,the survival of mankind - as former U.S. Secretary of Defense Robert McNamara aptly put it - wasultimately due to lucky coincidences. 62
The risk to Germany's participation in NATO's strategy of nuclear deterrence is significantly higher thanits benefits. A war waged with nuclear weapons and involving Germany would likely destroy substantial
parts of our country, destroy all life in it, and render the target area uninhabitable for a long time. It would
be a return to the days of the Cold War, when the FRG was the battleground of a nuclear confrontationin all planning. Responsible politics looks different.
The so-called Palme Commission, in which nineteen important politicians and experts from East andWest, North and South, including the former German Federal Minister and disarmament expert Egon
Bahr participated, analyzed in detail the life-threatening consequences of the doctrine of deterrence at
the height of the Cold War in the early 1980s and drew remarkable conclusions from it, which itsummarized in an alternative concept of "common security.""In today's world, security cannot be achieved unilaterally. We live in a world whose political, economic,
cultural and above all military structures are increasingly interdependent. The security of one's own nation
cannot be bought at the expense of other nations." 63 In the nuclear age of mutually assured destruction,
security can therefore no longer be achieved from the potential adversary, but only with him.
Germany should end nuclear sharing not only for reasons of international law, but also for politicalreasons. The U.S. nuclear-capable aircraft bombs stationed in Germany are ill-suited for the new targets
that have been incorporated into NATO's more flexible "adaptive" target planning since the end of theCold War. In the context of nuclear deterrence, in an emergency, they perform few tasks that could not
be performed by the submarine-launched nuclear weapons available to NATO. 64
59 IALANA Atomzeitalter beenden, 2019 p. 7.
60 IALANA ibid.
61 IALANA ibid.

62 Several cases were documented by IALANA in ibid p.3 cont.

63 Comp. Der Palme Bericht, Hrsg. Olof Palme/H. Rogge, Berlin 1982; IALANA ibid. p. 8.

64 See footnote 3, Otfried Nassauer on Bits.de „Aus der Zeit gefallen – Atomwaffen in Deutschland“, Interview 7.7.2020.

The German government will not be able to prevent the relocation of nuclear weapons from Germany to
Poland, which is being contemplated by the U.S. government. However, a nuclear-weapon-free Germany
would be an encouraging sign to the world and to opponents of nuclear armament. In a nuclear
confrontation, Germany would have to be treated and protected like all other non-nuclear weapons
states.
In ending nuclear sharing, Germany's membership in the NATO alliance would continue. Germany would
have the same treaty rights and obligations as the other non-nuclear-weapon states in the alliance.
The path to German termination of nuclear sharing would be simple: since, according to the Federal
Constitutional Court (BVerfG), Germany has not agreed to nuclear sharing by law but only byintergovernmental agreement, 65 its termination could be achieved by a government declaration andnotification to NATO partner states. The German government could achieve the same result by acceding
to the Treaty on the Prohibition of Nuclear Weapons (TPNW), which entered into force on January 22,2021. This reaffirms existing prohibitions under international law and would also oblige Germany toending nuclear sharing.
Bundestag would also have the opportunity to end nuclear sharing by passing a law. The large majority
of Bundestag has already called on the Federal Government, in a resolution passed by the Bundestag
on March 26, 2010, to strongly advocate the withdrawal of U.S. nuclear weapons from Germany." 66
Ultimately, a BVerfG ruling on the illegality of nuclear sharing under international law would also have tobe heeded and implemented by the Federal Government. Like the judiciary, the Federal Government, aspart of the executive power, is bound by law and justice under Article 20(3) of the Constitution.

Summary:
In keeping a decades-old tradition, Germany continues to maintain delivery systems for U.S. nuclear
bombs stationed in the country. In case of deployment, the nuclear bombs are transported and dropped
by Bundeswehr soldiers using Tornado fighter-bombers. This nuclear sharing is part of NATO's strategic
concept, which has been agreed upon by the member countries without a legal basis. The use of nuclear
bombs and the threat of the use of nuclear weapons are prohibited by international humanitarian law andthe human right to life. In addition, the use violates the Non-Proliferation Treaty (NPT), which prohibits
Germany, a non-nuclear-weapon state, from any co-disposal of nuclear weapons. With the developmentof nuclear Trident missiles with small explosive power for the Ohio-class U.S. nuclear submarines, thetactical nuclear bombs stationed in Germany have lost their military significance anyway.

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65 See footnote 32.

66 Deutscher Bundestag – Plenarprotokoll 17/35.