Subject

Dr. Stephan J. Lang, Dipl. sc. pol. Univ.

In the field of economics the nations of the European Union have already reached a high level of integration within the union. The treaty on the European Union signed in Maastricht on 7 February 1992 provided the member states with the legal foundation for this. The most recent example of successful economic and monetary cooperation was, apart from the creation of a European domestic market, the common currency officially introduced effective 1 January 1999, with all member states finally being able to meet the required national convergence criteria.
Hardly any progress has been made, though, as regards the standardizing of legal norms in the armed forces of the European Union, despite the fact that the Federal Republic of Germany has been second to none of the other European states in its efforts to include its armed forces into multinational structures. This policy was expressed, for example, by establishing the Eurocorps, the German-Dutch Corps and by activating the German-Danish-Polish Corps. Especially for the German Army, this constituted a quality leap from integration in NATO to multinationality, which is intended to demonstrate a common will to lead on an operational-unit level that is shared by all nations and that is brought to bear not only in a mission setting but even during peacetime. The challenge of dealing with the problems that multinationality entails lies primarily in the fact that political parameters need to be put into practice. To no small degree these parameters are a result of the Treaty of Amsterdam, which was signed on 2 October 1997 and which entered into force two years later, which is intended to shape Europe into an area of freedom and security. The Treaty of Amsterdam also establishes a clearly improved range of tools to support the Common Foreign and Security Policy (CFSP), which is designed to help the EU to better advocate its interests on an international level.

The Bundeswehr is one of several instruments of German foreign and security policy. This policy is focussed on cooperation, crisis prevention and conflict avoidance. Thus, multi-nationality today is to be considered a partial goal and an instrument of German security policy, which - as is shown in practice in ex-Yugoslavia - can be realized mainly by involving the USA within the framework of an overall European security architecture. Of course, these tasks and the related goals require intermediate objectives to be set, such as bringing Germany's eastern neighbors closer to western structures and establishing an order of cooperative security geared to a balance of interests and partnership among all European nations.1 It was also a matter of concern to Minister of Defense Volker Rühe to further develop the results that had been achieved so far, given the problems in the field of multinationality. The present Minister of Defense Rudolph Scharping, too, continued topursue this intention, as is clearly evidenced by the coalition agreement of 20 October 1998 and his most recent policy speeches.
When dealing with the subject of "multinationality" the first thing to do is to explain the terminology. In doing so it is often necessary to outline the forms multinationality can take, including its legal foundations, and in many cases to outline these legal foundations as well before turning to the problem-oriented questions. Before attempting to establish a definition, however, a look at the historical development of multinationality within the NATO alliance seems to be in order:

1. The Term Multinationality

It has become common usage to speak of multinationality only in those cases where regular contacts at the various levels of hierarchy are required in order to command and control multinational units. Normally, specific procedures are established to maintain these contacts, be it by means of contractual arrangements between the states involved, be it at the level of the ministers of defense or of subordinate commanders, or be it within a corps headquarters, where the commanding general may issue an order to that effect after prior coordination. By this general definition, multinationality is a result of the greater density of political structures in Europe and the world. Unless this will affect the sovereignty of states and, in consequence, will necessitate processes of adaptation of the legal orders and the leadership cultures of the armies involved, multinationality will not create serious problems or conflicts.
If we look at the definitions and facts as they apply to existing multinational units in context, it becomes clear that very different subjects may be subsumed under the heading of "multinationality". The conditions underlying multinationality are different from those applying to binationality, and the term must not be confused with supranationality.2 The general comparison of the models outlined reveals that the forms of cooperation in multinational military contingents range from the cooperation between purely national units to mixed units at company level made up of service personnel from different countries.
Basically, these different forms of cooperation may be summarized under the simplified term of cooperation between various armed forces with specified goals. However, the content and motives are subject to different agreements between nations and need to be put in formal terms for practical and legal reasons. While "integration" denotes the structural principle of international staff work in NATO commands, "multinationality" refers to the structural feature of troops kept available for military missions.

The issue of multinationality has gained in importance since the heads of government came together at the North Atlantic Council meeting on 5/6 July 1990 in London, as a decision was taken at that meeting to the effect that the NATO alliance should increasingly rely on multinational corps made up of national units.3 Even when NATO was founded as a collective defense alliance, multinationality was cited as a hallmark of its structure. It was only by pooling their defense efforts in forming a common structure that the members of the alliance saw themselves able to ensure their security in the face of the Warsaw Pact threat. It was the will of the NATO partners to retain the feature of multinationality in the alliance even as the Cold War had ended. Thus, the goals of multinationality remained valid.
The fact that there is no alternative to multinationality becomes increasingly evident even from official documents of the Ministry of Defense, from presentations given by the responsible ministers and the Bundeswehr Chief of Staff, but especially so from the "Defense Policy Guidelines" established by the federal government on 26 March 1992 and from official documents such as the 1994 White Paper. It says that Germany's defense capability is based on the ability to defend the nation and to defend the partners to the alliance within what is referred to as extended national defense. It is complemented by the ability to contribute to cooperative multinational conflict prevention and crisis management. Therefore, friendship and cooperation with its allies are at the core of German security policy, with priority being given also to an enhanced and broadened European integration to strengthen Europe's ability to act.
Another aspect of German security and defense policy cited in the 1994 White Paper is to win stable, democratic, efficient and equal partners in the East, with Germany going to extend the zone of western prosperity and stability beyond its borders in order to reach this goal. What is meant by this is the close cooperation with the neighboring states in the East, apart from keeping Europe firmly anchored in the Atlantic community.
In that respect there are hardly any limits to the spectrum of multinational integration, and yet a new dimension was reached from a German perspective when the German-Danish-Polish Corps was activated in 1998: This example goes to show that multinationality even makes cooperation with former Warsaw Pact states possible, even though it will be necessary to make many compromises and go through many learning processes in the future. Multinationality today is a feature of political and military structures that has characterized NATO since its inception as a collective defense alliance in April 1949. While efforts to establish a European defense community in the 1950s failed, integrated NATO command structures existed since the beginning of the East-West conflict4, of which the Bundeswehr has been an integral part since its beginnings. Multinational units such as the LANDJUT German-Danish Corps, established in 1962, or the Allied Command Europe Mobile Force (Land), referred to as AMF(L) and activated in 1960, testify to the fact that multinational units can already look back on a long-standing tradition.
On principle, the armed forces are committed together with allies within the NATO and WEU framework. Thus, the ability to cooperate with partners within different command structures is of great importance. The Bundeswehr allows for this fact even in peacetime by integrating itself in multinational structures and assigning units to such structures. The Navy contributes to all four permanent task forces in the Atlantic, the Channel and the Mediterranean Sea (STANAVFORLANT, STANAVFORCHAN, MCMFORMED and STANAVFORMED). Moreover, exercises are conducted regularly on an international level.
Like the Navy, the Air Force too is firmly integrated in the alliance's air defense with joint operational planning and command staffs. The Army is represented in all corps in Central Europe as well as in all rapid deployment forces of NATO. In addition, joint airspace control, air transport and training tasks are performed on a multinational basis. Multinationality therefore fosters integration in the alliance and causes tasks to be performed more economically. It is quite obvious that the cooperation between armed forces of different nations - be it within the scope of international UN missions, be it within the scope of alliance systems - faces a multitude of problems. These include not only linguistic, cultural and historical but also economic and organizational problems, which need not be explained further. The German Bundestag's Commissioner for the Bundeswehr arrived at the same conclusion based on a large number of petitions sent to her office. Probably hers was the first official comment on a problem which requires greater attention to be paid to international cooperation in multinational units than has been the case in the past. In her 1995 annual report, she stated that:
".....the forces of the various nations have different opinions as to Leadership and Civic Education issues. The comprehensive legal protection accorded to German soldiers, including the right to petition an institution established by law for that very purpose, the legally mandated soldier participation or the strict safety regulations of the Bundeswehr are not understood, accepted, let alone appreciated by all partners. In my opinion, this is an urgent matter that should be dealt with. While, understandably, efforts are made to establish provisions that are both feasible and practicable, what must be taken into account is that it is the province of parliament to decide on measures that intrude upon the legal position of military personnel. The concept of Leadership and Civic Education, which is based on the guiding principle of the soldier as a "citizen in uniform" and which has proven its worth for forty years must not suffer..."

2. Multinationality in a Field of Tension Between Sovereignty and Integration

It is not a rare incident that mainly the different military structures of the armed forces, the different traditions and leadership philosophies (among which we must count the Bundeswehr's Leadership and Civic Education concept as well if we look at things in an international environment) and legal problems stand in the way of cooperation between different national force contingents. If we look at the fundamentals of the various constitutions which determine the establishing of armed forces in western nations, it becomes obvious that there are essential differences to be found even in the very historical developments that led up to their creation6.
These differences become even more apparent in the various systems of military law as regards the legal status of soldiers, disciplinary law, complaint regulations and other matters of military law. We find the same differences - and often even more grave ones - in the leadership philosophies or concepts of the various forces which "leave quite a mark" in the troops' daily routine, especially so in multinational units. Whenever forces of different nations with their different legal and leadership concepts deal with each other, the differences come to the fore very quickly if "cooperation" is the order of the day. Even the greatest willingness to work together will often come up against its limits because of national legal provisions and leadership principles. The more enhanced such cooperation is supposed to be, the more obvious these difficulties become, especially so if the matter at hand involves placing soldiers of one nation under the command of someone from another.

3. Forms of Multinational Unit Organization

Efforts aiming at standardizing legal and organizational divergences at the European level can be traced back as far as 1955. Article 132 of the European Defense Community Treaty, which failed at the time because it was not ratified by the French National Assembly, provided for "European armed forces" to be established, with Article 79 of that treaty providing the basic concept that such forces should be subject to standardized rules. The European Defense Community was to be created as a supranational organization, based exclusively on the concept of defense. Had it been ratified then, the problems regarding joint European forces would be a much less explosive subject; admittedly, French domination would have been inevitable to some degree.
The political will of the states of the European Union to arrive at joint force structures within the WEU, however, still exists. It also shows, though, that it is no longer merely an issue of reducing the weak points in the cooperation of multinational units but also of establishing, in the long term, rules and provisions on "joint European forces" within the scope of a politically desired foreign and security policy process. So far, three forms of organization for major military units at brigade level and above have emerged, which is the "lead nation principle", the "framework principle" and the "integration principle".

a. The "Lead Nation Principle"

II (GE/US) Corps in Ulm and V (US/GE) Corps in Heidelberg are organized in accordance with the "lead nation principle". Germany is the lead nation for II (GE/US) Corps, whereas for V (US/GE) Corps this role is played by the Americans. The lead nations are responsible for all matters relating to command and control and conducting their respective units' business. Both corps headquarters are structured along national lines. Each corps, however, has liaison elements permanently assigned to its counterpart. The Americans have a liaison team with II (GE/US) Corps, while we have a similar element with V (US/GE) Corps. The "lead nation principle" respects the national idiosyncrasies of each lead nation. Compromise solutions are not necessary when establishing staff procedures, nor for planning projects and exercises or for other matters. Headquarters do not have a mixed staff, nor mixed thinking. As for the objective of multinationality, this certainly is a disadvantage.

b. The "Framework Nation Principle"

According to the "framework nation principle", one nation is responsible for command and control, administration and the logistic support of the headquarters. The Allied Command Europe Rapid Reaction Corps is structured along this principle. Great Britain provides almost 70 percent of its staff. The other staff posts are divided among the 10 nations that provide forces to the corps. These multinational units that are structured along the "framework nation principle" do not practise true multinationality at any great depth either. Since only one nation has the responsibility for command and control, administration and logistic support of the headquarters, its influence is so dominating that cooperation based on equality is difficult. It is therefore not easy to overcome problems such as how staff posts should be distributed or how staff work and procedures should be organized, because the interests of its partners often are only of marginal concern to the lead nation.

c. The "Integration Principle"

The "integration principle" is the one which the Eurocorps, the I GE/NL Corps and the German-Polish-Danish Multinational Corps Northeast are based on. It is a feature of corps headquarters organized in a truly integrated way that the participating partners are accorded the same rights and duties in every respect. This is ensured by manning key command functions, such as commanding general, deputy commanding general and chief of staff, on a rotating basis. The nations man these positions for specified periods of time, while care is taken that positions are shared equally among them for each rotation cycle.
The integration principle is the only one that fully guarantees that the political goal of multinationality in the sense of participation of all on an equal basis is achieved. The personnel provided by the partners involved is employed in mixed staffs, without any one nation being able to exert a dominating influence because of the number or quality of staff posts held by it. Financial and personal contributions, too, are made on an equal footing. The units organized along the "integration principle" are especially suited to multinational crisis-management operations, which was proven not only by the German-French Brigade's SFOR mission but is underscored as well by the SFOR mission in Bosnia carried out by a large part of the EUROCORPS staff since 1998. It is mainly the multinational units organized along the "integration principle" that can play the role of a prime mover as regards the process of European integration.8
Concerning the organization of multinational units, the German Army attaches great importance to taskings and missions that are clearly set both in peacetime and during operations as well as to feasible solutions reached by cooperating in the fields described. There are many aspects of importance, as is corroborated by the long years of negotiation on the Eurocorps agreement concluded in Strassbourg, but also by the I GE/NL Corps agreements and the ongoing negotiations on the Multinational Corps Northeast. Aspects to be addressed include the right of multinational unit personnel to stay in the receiving state, the authority of the commander or commanding general to enter into contracts, the issue of what international status and legal status the headquarters should have, tax privileges and other regulations which might be the subject of special supplementary agreements.
The staying of personnel of multinational units within the territory of the receiving state requires a clear legal basis. The needs and requirements of the sending state's personnel must be brought into line with those of the receiving state. Both the 1951 NATO Status of Forces Agreement and the Paris Protocol of 1952 remain basically unaffected as far as multinational units are concerned. However, the Paris Protocol relates to NATO headquarters and, from the German point of view, can therefore not be applied without a NATO command structure. This was a main issue when special status and tax provisions were negotiated for the Multinational Corps Northeast agreement.
Multinationality is no end in itself, though, and would be misdirected if it were not at the same time the expression of a common political will. But multinationality is also an opportunity and an idea to align national efforts to reach common goals. This can only be done within the scope of the "Strategic and Operational Community" and within a suitable legal framework.

4. Possible Legal Forms of Multinational Units

The question that arises, therefore, is about possible future legal forms of multinational units. Legal forms denote certain constellations, structures or organizations specified in legal terms. As to the initial question, there are legal forms at the national as well as at the international (that is, international law) level. It is important to differentiate between those, as the question whether the chosen legal form is supposed to establish legal capacity or not depends on it. At the level of international law, there is also the question of whether the entity to be created should have legal capacity only on foreign (national) territory or according to "international law" as well, that is, whether it should be able to enter into relationships with other entities of international law9.
Thus, the primary question is not which legal form to choose for multinational units but what purpose is to be achieved. National and international law do not exist side by side without any relations between them. If national constitutional law - such as the meaning of Article 24 of the German Basic Law - provide for sovereignty rights to be transferred to international institutions, this is perhaps not limited to "international organizations" as defined by international law. However, an organization that "does not exist" per se or which has no legal significance in international law can hardly be an "international" institution in accordance with Article 24 paragraph I of the German Basic Law.
If someone intended for a multinational unit or its headquarters to exercise sovereignty rights, German constitutional law would require it to be an "international institution" as described above within the meaning of Article 24 paragraph 1 of the German Basic Law. Sovereignty rights would have to be transferred, for example, to soldiers of other nations who perform guard duties and exercise pertinent authority on premises in the Federal Republic of Germany. Discussing whether a multinational integrated unit should have a legal form of their own makes sense only if that unit also had legal capacity of its own. Legal forms that could apply to multinational units would be that of an "international administrative union" or a "plurinational administrative institution10". These are based on agreements between the parties involved, enjoy privileges and immunities and perform administrative duties but do not necessarily have sovereign authority or rights of intervention.
Even the "international administrative union" would be a possible legal form to fit an integrated multinational formation, while not a binational one.

Examples of international administrative unions are the International Rivers and Fishing Commission or organizations pertaining to postal and telecommunication services. Examples of plurinational administrative unions of the public-law variety include the European Space Agency (ESA), EUROCONTROL and the European flight control organization. As in a national context armed forces as such are counted among the executive, that is, administrative authorities, multinational12 units might quite aptly be designed as administrative unions or plurinational administrative institutions. It would ultimately be for the nations involved to decide what should be the functions, powers, organs and privileges of such institutions. Moreover, it is worth considering whether the creation of separate legal forms - whatever their shape - would not have to be complemented by measures at the political level, for ultimately multinationality means not only a field of tension between tradition and integration but also a dilemma between sovereignty and the dispensing with rights. With this perspective of shaping the future in a comprehensive manner, multinationality is without alternative; what is required is the further enhancement and extension of integration so that this development will lead to a European Army integrated in NATO which is able to make an adequate contribution to peace in Europe and to crisis regions worldwide.