2012 World Conference against
A- and H-bombs in Hiroshima
Session II: German steps against nuclear weaponsand step out from civil use of nuclear energy
Dr. Peter Becker
Co-President of the International Association of Lawyers Against Nuclear
Arms (IALANA)
and co-founder of Becker Büttner Held – lawyers auditors tax-consultants

www.bbh–online.deDr. Peter Becker, Rechtsanwalt
peter.becker@bbh-online.de – Tel.: 06421 / 168960




Born in Berlin in 1941
Married, three daughters
Studies in Marburg, Munich and at the International Faculty of Comparative Law
Research associate at the University of Mainz with a focus on corporate and commercial law
Lawyer since 1971 in Marburg
1972 - 1981 city councilor and member of the operating committee of the Stadtwerke Marburg
1986 notary and lawyer specialized in administrative law
1987 PhD
Represented in numerous successful party and policy disputes before the Federal Constitutional Court (numerusclausus, testing law, Census, representing 146 municipalities in the eastern German power dispute) and before
the European Court of Human Rights (constitutional integrity in public service)
Lecturer at the Humboldt University in Berlin for Energy Law (since WAS 2003/04)
Managing editor of the Journal of New Energy Law (ZNER)Founder of German IALANA and president 1989-2010
Co-president of International IALANA since 2011
Member of the Board of the Bar Association of Kassel (1985 - 2010)
Company founder and partner of counsel at Becker Büttner Held

02.08.-05.08.2012

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I.
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

Dr. Elke Koller vs. German Federal Republic
German government agreed in the coalition contract between
conservatives and liberals 2009 that the last US nuclear weapons
should be withdrawn from German territory. But NATO doesn’tagree.
So a German female pharmacist, Dr. Koller, decided to sue against
German government to withdraw the last US nuclear bombs and tostop collaboration in the NATO nuclear planning stuff: the “nuclearparticipation”.
Dr. Koller lives about 4 km from the German air base Büchel near
the river Mosel. Here a German air battalion protects the last 20
nuclear bombs from the type B61, with flexible detonation force
within a range of 0,3 to 140 kt. The Hiroshima bomb had 12,5 kt.
The production date was about 1965 - veterans.

02.08.-05.08.2012

2012 World Conference against A- and H-bombs inHiroshima3German soldiers train how to install the bombs, how to fly withand to bring them to the destination.
German IALANA supports Dr. Koller in a claim against thegovernment. The arguing is as follows:
German constitution provides an article 25, which foresees thatthe common rules of international law are part of German nationallaw. Such a rule is the interdiction of violence in art. 2 p. 4 of theUN-chart.
Another part of the common rules of international law are therules of human international law for warfare. All of you rememberthat the ICJ based his sentence that the threat of use and the useof nuclear weapons are generally illegal.

02.08.-05.08.2012

2012 World Conference against A- and H-bombs inHiroshima

4The use is illegal because the bombs
 cannot distinguish between soldiers and citizens
 cause unnecessary harm would violate the region of states which are neutral or not involved in
the conflict.
 In consequence states are interdicted to subsist nuclear warfare.
 But international and national common rules of international law bind
only states – in general. German constitution provides in art. 25 anotherrule based on the experiences of Second World War and its causes:
Common rules of international law awards rights and obligations to thecitizen.
 This was openly discussed in our parliamentarian council who wrote theconstitution, and one of the most prominent professors argued that “weshould make a further step from the traditional opinion of internationallaw which binds only states. Art. 25 should state that international law
gives rights and obligations to the citizen.”
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



In German constitutional law it is common opinion that the citizen
has an own right to claim that the state violates the interdiction offorce. So we started the law suit against the government before
the courts of administration.
One last hint: A German professor, member of the scientificcouncil of German IALANA, has written an opinion where he showsthat the citizen has an own right to claim in cases concerning theinterdiction of force based on European and international law. So
you might use the German claim for other law suits versus nuclear
weapon states all over. You find it on www.ialana.de.

02.08.-05.08.2012

2012 World Conference against A- and H-bombs inHiroshima

6II. The German step out from civil use of nuclear energy
The first step out contract and legislation 2000/2002
In 1985 the greens became part of the government of Hessen together
with social democrats.
They claimed the ministry of Environment and the overview onnuclear plants.
For years they tried to change security requirements.
But the green authority in Hessen did not come to a success because
legislation on the subject of nuclear energy and the survey on runningof plants lies in the competence of the federal state.
In 1998 social democrats and greens won the election.
The green secretary of state from Hessen became secretary of statein the federal authority.
2012-08-02 – 2012-08-05

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In Hessen he had developed an act for step out. He transferred thisexperience into the federal authority.
Scientific examination of the question of damages as result of closing
nuclear plants found that was a constitutional risk.
So the greens decided to come to a contract with the runners of
nuclear power plants.
The utilities agreed because several federal states were very severe
with their overview standards and they wanted to finalize thispractices.
So in 2000 the first contract was signed.
In 2002 the first step out act was edited. It foresaw that every plant
had 32 years of running time. Several plants had to close immediately.

2012-08-02 – 2012-08-05

2012 World conference against A- and H-bombs inHiroshima

8The step out from the step out
In 2009 the conservatives and the liberals won the elections.
One year later they negociated a second treaty now foreseeing a
prolongation of running nuclear plants:
 plus 8 years for elder plants
 plus 14 years for the younger
But the government made a legal mistake:
Five federal states decided to go to the constitutional court.
My law firm received the authority to defend the interests of the fivefederal states before the Bundesverfassungsgericht (court ofconstitution).

2012-08-02 – 2012-08-05

2012 World conference against A- and H-bombs inHiroshima

9Consequences of Fukushima: step out from step out fromstep out
At March 11th, a Friday, the first Fukushima-reactor exploded.
At the following Monday the government published a “Moratorium”
for the eldest reactors: They had to be disconnected for the next
three months.
But the legal base was highly doubtful: A rule in the law concerning
civil use foresaw that in case of danger the authorities could decideto disconnect the plant.
But the danger had risen in Japan and not in Germany.
Nevertheless the authorities could argue that the risks of civil use had
to be estimated on a new background of experience.
The chancellor installed an ethic commission for a new estimation ofnuclear energy.
2012-08-02 – 2012-08-05

2012 World conference against A- and H-bombs inHiroshima

10This commission decided after one month of reflection byrecommending to come back to the first step out act.
Only three months later, on 30th June 2011, the Bundestag agreed tocome back to the act from 2002:
The eight eldest nuclear plants had to be disconnected. The
remaining nine plants became fixed final running dates, from 2015 forGrafenrheinfeld and 2022 for the last three.
The act passed with the consent of the parties of christian union,
liberals, social democrats and greens: a great coalition.
But this decision was only possible on the base of the German
legislation for the renewable energies 1990 and 2000. Now theGerman state is on the way to energy change. 2050 80 % of energy
should come from renewables.

2012-08-02 – 2012-08-05

2012 World conference against A- and H-bombs inHiroshima

11Thank you for your attention!
Contact person: Rechtsanwalt Dr. Peter Becker
BBH Berlin
Magazinstraße 15-1610179 Berlin
Tel.: 030 611 28 40 0
Fax: 030 611 28 40 99
berlin@bbh-online.de

BBH Brüssel
Avenue Marnix 281000 Brüssel/BelgienTel.: +32 2 204 44 00
Fax.: +32 2 204 44 99
bruessel@bbh-online.be

BBH Köln
KAP am Südkai
Agrippinawerft 3050678 Köln
Tel.: 0221 6 50 25 0
Fax: 0221 6 50 25 299
koeln@bbh-online.de

BBH München
Untere Weidenstraße 581543 München
Tel.: 089 23 11 64 0
Fax: 089 23 11 64 570
muenchen@bbh-online.de

BBH Stuttgart
Industriestraße 370565 Stuttgart
Tel.: 0711 722 47 0
Fax: 0711 722 47 499
stuttgart@bbh-online.dewww.bbh–online.de
24th September 2011

Hiroshima

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