by SIDHAT SINGH
If Germany’s arms-export decisions are governed by legal duties to assess the risk of serious violations, who can ensure those duties are actually enforced? Part II examines the role of Staatsräson in Germany’s political debate, the implications of Germany’s amended optional clause declaration, and the likely outcome of the ICJ’s jurisdictional proceedings. It also considers whether German courts provide effective judicial review when export licences remain confidential, and those endangered by arms transfers struggle to challenge them.
Staatsräson
Germany’s Agent did not invoke Staatsräson before the ICJ. Instead, she relied on the strictness of Germany’s licensing procedures, arguing that they exceed international standards. The concept therefore remains part of Germany’s domestic political debate. Nicaragua, by contrast, argued in The Hague that a sincere raison d’état would require Germany to act to prevent the violations. The legal position within Germany is clear. The Bundestag’s Research Service has concluded that Staatsräson appears neither in the Basic Law nor in any statute. It is a political guiding principle rather than a legal term and does not create any legal obligation. A breach of Staatsräson therefore has no legal consequences. The present Chancellor has also stated that Staatsräson is a principle that applies to one’s own country rather than to others.
Despite this, the domestic debate continues to treat Staatsräson as though it provides a legal justification for Germany’s arms exports. It does not. Article 27 of the VCLT prevents a State from relying on its internal law, and even more so on a domestic policy, to justify non-performance of a treaty. Moreover, since Görgülü, the Federal Constitutional Court has treated the Basic Law’s openness to international law as a duty binding on the executive. This, however, does not by itself make the licences unlawful. Until a court examines the risk assessment required before each licence is issued, Germany’s assurance before the ICJ that it conducts a careful case-by-case review remains an assurance rather than a judicial finding.
The Amended Optional Clause
On 21 October 2025, the day on which it filed its preliminary objections, Germany deposited an amended optional clause declaration. The new reservation excludes any dispute that has not been notified to Germany in writing at least six months before an application is filed. Patrick Marquardt has described the amendment as a reaction to the Nicaraguan case. Regardless of one’s view of that case, a State that responds to litigation by narrowing its future consent to jurisdiction reduces the number of forums in which its conduct can be examined.
Conclusion
The September 2026 hearings ended the oral stage on Germany’s preliminary objections. The Court is now considering whether it can hear Nicaragua’s claims at all, rather than whether Germany’s exports were lawful. My expectation therefore concerns the forthcoming judgment on jurisdiction and admissibility, not the merits of the case.
The weakest claims are those concerning apartheid and the prosecution of international crimes, mainly for procedural reasons. Jurisdiction requires a dispute to have existed when the case was filed. Of these claims, only self-determination was raised in Nicaragua’s note verbale of February 2024, while the claims concerning apartheid and prosecution appeared for the first time in the Application. The apartheid claim also faces the Racial Discrimination Convention’s requirement of prior negotiation. In addition, paragraph (i) of Germany’s 2008 declaration excludes disputes that are subject to another method of peaceful settlement. Nicaragua’s response is that these prohibitions are binding under customary and humanitarian law, which fall within the scope of the optional clause. The prosecution claim is even more difficult because a duty to prosecute or punish would first require the existence of crimes that a court must attribute to a particular party, once again raising the issue of Israel’s absence from the proceedings.
Claims based on Germany’s own conduct are more likely to proceed. The Order of April 2024 treated Germany’s obligations concerning arms transfers as capable of being examined without requiring a prior judgment against Israel. Similarly, Nauru supports the possibility of examining Germany’s own conduct and whether it exercised the required diligence.
The more important question concerns the adequacy of judicial review before the German courts. Article 19(4) GG guarantees effective judicial review. Where export licences are confidential, and deliveries can take place quickly, this may require either preventive relief where there is a credible showing of serious risk or a duty to notify affected persons in sufficient time to seek judicial review. The Verwaltungsgericht Berlin refused both forms of relief in 2024, and the Federal Constitutional Court has since declined to intervene. Germany relies on these same procedures before the Court in The Hague as evidence that its system provides an effective guarantee of compliance. Yet no German court has so far tested that claim. Until one of these mechanisms is available in practice, the risk assessments required before arms transfers remain largely unverified
Citation: Singh, Sidhat, Between The Hague and Berlin: Who reviews German Arms Exports to Israel (Part 2), JuWissBlog Nr. 87/2026 v. 14.10.2026, https://www.juwiss.de/87-2026/
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