Concept and Fundamentals of Foreign Authority
Foreign authority is a central element of constitutional law and describes state actions and powers in the external relations of a state. In the German legal system, it particularly encompasses the representation of the state externally, the conduct of foreign relations, and the conclusion of international treaties. It stands in contrast to domestic (internal) authority and is exercised independently within the framework of the separation of powers.
The legal design, exercise, and limitation of foreign authority are fundamental to Germany’s relationships with other states, international organizations, and within the context of international law.
Constitutional Framework of Foreign Authority
Anchoring in the Basic Law
Foreign authority is primarily governed in the Basic Law of the Federal Republic of Germany, notably in Articles 32 and 59. Article 32 GG regulates the foreign relations of the Federation, while Article 59(1) GG assigns to the Federal President the power of international representation of the Federation.Art. 32 GG:
- The conduct of foreign relations is a responsibility of the Federation.
- The Länder may only act insofar as permitted by law or their constitution.
- The Federation respects the participation of the Länder in matters that affect their particular interests.
Art. 59 GG:
- The Federal President concludes international treaties in the name of the Federation.
- Treaties that regulate the political relations of the Federation or require legislation need the approval of an appropriate law.
Separation of Powers and Competences
Foreign authority is an independent component of state power alongside legislation, administration, and the judiciary. Its exercise falls within the responsibility of the Federation, with the most important active organs being the Office of the Federal President, the Federal Government, and the Federal Foreign Office.
Organs and Exercise of Foreign Authority
Federal President
According to Article 59(1) GG, the Federal President is responsible for the international representation of the Federal Republic of Germany. He concludes treaties with other states in the name of the Federation and accredits and receives ambassadors. His role is predominantly representative and formal. The substantive and actual management of relations is the responsibility of the Federal Government.
Federal Government and Federal Foreign Office
The Federal Government (in particular the Federal Chancellor and the Federal Minister for Foreign Affairs) bears the political responsibility for shaping and conducting external relations. It conducts negotiations on international treaties, maintains diplomatic relations, and shapes foreign policy. The Federal Foreign Office is the central authority for all matters relating to foreign authority and manages the diplomatic service and information network abroad (embassies, consulates).
Bundestag and Bundesrat
Through Article 59(2) GG, the Bundestag (and, where required, also the Bundesrat) participates in foreign authority when it comes to the conclusion of international treaties that regulate the political relations of the Federation or concern legislative competence. The ratification of such treaties generally takes place through a law of consent.
Legal Sources and Legal Bases
Basic Law and Domestic Law
The Basic Law is the central constitutional basis of foreign authority. It is supplemented by statutory provisions such as the Act on Consular Representations and the Act on the Foreign Service.
International Law Provisions
Foreign authority is significantly shaped by international law. Key principles of international law such as the prohibition on the use of force, the prohibition of intervention, diplomatic and consular relations, and the sovereign equality of states also limit Germany’s foreign policy actions.
Functional Elements of Foreign Authority
Conclusion of International Treaties
A central element of foreign authority is the conclusion of international treaties (e.g., international agreements, state treaties). The Federal Government conducts the negotiations for this purpose; the Federal President formally concludes the treaties, and within the domestic sphere, they require parliamentary approval if they effect legislative or constitutional changes.
Diplomatic Relations and Missions
Within the framework of foreign authority, the Federal Government maintains diplomatic relations, sends representatives, and receives foreign diplomats. This also includes immunity regulations, diplomatic protocols, and the performance of consular tasks.
Participation of the Länder
The Länder may participate in foreign authority within the scope of their assigned competences, for example through cultural or economic relations. However, overall leadership and responsibility remain with the Federation.
Restrictions and Control
International Law Obligations
Action in the field of foreign authority is bound by international law. Violations can lead to international sanctions and liability. International organizations such as the United Nations and the European Union also establish binding framework conditions.
Parliamentary Oversight
Foreign authority is subject to parliamentary control. The Bundestag can require the Federal Government to provide reports and information, and it decides on treaties through approval legislation. Public and parliamentary oversight serve to secure the democratic legitimacy of foreign policy.
Foreign authority in the International and European Context
Membership and Participation in International Organizations
Foreign authority includes the membership and participation of the Federal Republic of Germany in international organizations such as the United Nations, the European Union, NATO, or the WTO. Specific international law and European law provisions must be observed in this regard.
European Union Law
Within the framework of the European Union, special rules apply to the exercise of foreign authority. Numerous powers of external representation have been transferred to the Union or are exercised in coordination. Both the Federation and the Länder are bound by EU law.
Significance and Developments
Foreign authority is of fundamental importance for the continued existence and ability of a state to act in the international context. It ensures the representation of German interests, cooperation, and the fulfillment of international obligations.
With the continued internationalization and Europeanization of legal and political processes, questions of structuring, control, and limitation of foreign authority are steadily growing in importance. Current issues such as security policy, international economic relations, climate diplomacy, or digitized foreign policy continuously present new challenges to foreign authority.
References
- Isensee, Josef/Kirchhof, Paul (eds.): Handbook of the Constitutional Law of the Federal Republic of Germany, Heidelberger Commentary, Volume VII: Foreign Authority
- Ipsen, Knut: International Law, 7th edition, Munich 2018.
- Durner, Wolfgang: Constitutional Law II, 11th edition, Munich 2020.
Keywords: Foreign authority, constitutional law, international law, Basic Law, foreign policy, Federal President, Federal Government, diplomatic relations, international treaties, participation of the Länder, European Union
Frequently Asked Questions
What legal requirements must be met for an event to be considered “foreign authority” within the meaning of German law?
Under German law, particularly in liability law pursuant to § 7 para. 2 StVG (Road Traffic Act) or in public compensation law, ‘foreign authority’ is understood as an event acting from outside on a thing or person, which is based on a human act. The legal requirements include that the impact does not originate from within the affected legal entity or object itself, but is caused by the behavior of third parties or natural events, insofar as these do not fall under force majeure. According to case law, there must be an adequate causal connection between the external impact and the damage, and the impact must have an unusual or unforeseeable character. It is also crucial that foreign authority is not confused with inherent or force majeure. This concept is relevant in practice, for example, in cases of accident damage where liability is assumed only if the damage is attributable to foreign, i.e., externally acting, authority.
In which areas of German liability law does the concept of ‘foreign authority’ play a special role?
The concept of foreign authority plays a central role in the area of strict liability, for example in road traffic law (§ 7 para. 2 StVG), in product liability law as well as in public compensation law (such as in connection with official liability, state liability, or de facto expropriation). Moreover, it is also applied in property insurance, for example in distinguishing between contractually covered damages and those caused by internal factors or normal wear and tear. The existence of foreign authority is often a prerequisite for a liability exemption or, conversely, for the establishment of liability. For example, the owner of a vehicle in road traffic may be exempted from liability if he proves that damage was caused exclusively by foreign authority.
How is foreign authority distinguished from force majeure in the legal context?
In legal terms, foreign authority and force majeure are clearly distinguishable. While foreign authority refers to any impact coming from the outside, force majeure can be seen as a form of foreign authority that, however, occurs with special intensity due to its unpredictability, inevitability, and the nature of a natural event, and could not have been prevented even with the utmost care (e.g., natural disasters, war, strike). The key difference is that not every foreign authority is at the same time force majeure. Foreign authority can also result from the acts of third parties, whereas force majeure is reserved for irresistible external impacts only. In liability and insurance matters, this distinction is decisive, as the legal consequences differ significantly: While liability may still arise in cases of foreign authority depending on the circumstances, this is often excluded in the case of force majeure.
What are the evidentiary requirements to establish the presence of foreign authority in court?
Anyone who invokes foreign authority in court proceedings—for instance, to be exempt from liability under § 7 para. 2 StVG—bears the burden of pleading and proof for the existence of such an impact. It must be substantiated and proven that the harmful impact came exclusively from the outside, i.e., through third parties or special events, and not from the responsibility or risk area of the opponent. Courts regularly require a precise description of the events as well as, if necessary, the submission of evidence such as witness statements, expert opinions, or police investigation reports. General assertions are insufficient; rather, the connection between foreign authority and damage must be demonstrably established.
How is foreign authority related to claims arising from insurance contracts?
In insurance law, especially property and accident insurance, the criterion of foreign authority is often constitutive for the occurrence of the insured event. For instance, many insurance conditions require that covered damages are caused by a sudden external event acting upon the insured object (foreign authority)—as in the case of so-called ‘storm’ or ‘burglary’ clauses. The clarification of foreign authority distinguishes insured causes of damage from those resulting from normal wear, internal breakage, or operationally inherent causes. In case of dispute, the policyholder bears the burden of proof for the existence of foreign authority and must show that the damage was not due to his own act or omitted maintenance.
How does the highest court jurisprudence assess the question of attribution in cases of foreign authority?
The case law of the Federal Court of Justice (BGH) regularly deals with the question of when a damaging event is legally to be considered foreign authority and whether it falls within the liability scope of the tortfeasor or insurer. The decisive factor is the principle of objective attribution, whereby an impact is attributable when it originates from the sphere of duty of the tortfeasor or responsible party and there is a causal connection to his conduct. By contrast, in the case of purely foreign authority, which is outside the control of the parties, attribution is regularly excluded. The jurisprudence also takes an individual case approach and particularly considers the foreseeability and avoidability of the event.
What are the typical groups of cases of foreign authority in practice?
Typical groups of cases of foreign authority include road traffic accidents due to sudden external impact (for example, collision with another vehicle, falling objects from bridges or trees), damages caused by vandalism or targeted damage by third parties, as well as impacts from certain natural events, provided these do not qualify as force majeure (e.g., rockfall, aquaplaning due to sudden heavy rain in ordinary circumstances). Cases of burglary or willful destruction are also legally considered foreign authority. However, the precise classification always depends on the circumstances of the individual case and may require legal assessment in light of the relevant case law.
