(at the International Symposium on Environment and Human rights caused by U.S military bases)
1. Historical background
After World War II foreign troops were deployed in Germany as liberators from the Nazi regime, occupying troops and finally, after 1955, as formal partners in the two alliances. During the Eighties, about 340,000 soldiers were stationed in the German Democratic Republic (GDR), and about 403,000 in the Federal Republic of Germany (FRG), among them 245,000 US troops.
The high density of troops and weapons of mass destruction was accompanied by the demarcation and expansion of restricted areas, manoeuvre damage, noise and hazards due to low-level flights, traffic accidents with military vehicles, environmental pollution and behavioural problems, usually on the part of young male soldiers. These problems were handled in very different ways in East and West Germany. To name but one example, the West German environmental and peace movements protested against the military forces, and also sought to press their claims in the administrative or constitutional courts.
In 1990, Germany gained full sovereignty, and by September 1994 the allied forces had left (unified) Germany. In 2004, the US gave notice of another withdrawal of soldiers from Germany. The final number, and exactly which military bases will be affected, have not yet been publicized, but an announcement is expected at the end of 2005. At the moment, there are 73,000 American soldiers in Germany stationed as NATO troops.
With the 2+4 treaty (1990), German troop strength has also been reduced from about 500,000 to 370,000 soldiers.
2. The extent of areas in military use
The figures differ depending on the source. I refer to an assessment by the Federal Environmental Agency.
Until 1990, an area of approx. 960,000 ha was used for military purposes in Germany, i.e., approx. 2.8 % of the total area of Germany. In former West Germany, this figure included:
- approx. 253,000 ha (i.e. approx. 7,000 sites) used by the German Federal Armed Forces, and
- approx. 200,000 ha used by the Western Allies (USA, UK, France, Canada, Belgium, and the Netherlands), and in the former GDR:
- approx. 240,000 ha (approx. 3,300 sites) used by the National People's Army of the GDR (NVA), and
- approx. 250,000 ha (ca. 1,030 sites) used by the former Soviet Armed Forces based in the former GDR (WGT).
Some 5,000 additional properties used by the Ministry of State Security (MfS) and the Ministry of the Interior (MdI) of the former GDR were also classified as military sites.
Many of the sites used by German and foreign armed forces after 1945 had already been utilized for military purposes by German troops before and during World War II.
A large number of NVA and WGT sites as well as several hundred sites belonging to the Western Allies were affected. The total area of abandoned military sites amounts to approx. 500,000 ha.
3. The current situation of military bases in Germany
Even now, Germany still hosts very important US military bases. There are three headquarters in Heidelberg, Ramstein and Stuttgart, three airports in Frankfurt, Ramstein and Spangdahlem, three main military training areas (Hohenfels, Grafenwöhr and Baumholder) and 20 other important sites.
During the war in Iraq, Germany gave American troops access to German airspace and German ports.
4. The positions of local and governmental authorities and NGOs regarding the relocation of military forces
In order to give you an example of how greatly the positions of local and national authorities, on one hand, and NGOs on the other differ, I will use the example of the relocation of the US military from the Rhine-Main air base in Frankfurt to the airports of Spangdahlem and Ramstein.
The relocation is scheduled for the end of 2005, and plans for an extended use of Spangdahlem and Ramstein. The German government and the federal state of Rhineland-Palatinate will provide funds amounting to at least 360 million Euros. The parties involved are the Frankfurt airport holding company (FAG), the Federal Republic of Germany (FRG), the states of Rhineland- Palatinate and Hesse and the US government.
These parties reached an agreement that makes the following provisions (concerning liability for environmental damages):
- The abandoned military area of Frankfurt airport will be used in future by the civilian FAG, while at the same time the US Defence Department and NATO will expand the usage of the airports in Spangdahlem and Ramstein. The Federal German government will purchase the needed areas and provide the necessary permissions for the extension of Ramstein and Spangdahlem according to the NATO-SOFA.
- The clean-up of the purely military facilities is the responsibility of the US. Liability for environmental damage and the necessary clean-up lies in the hands of the German Federal government to the extent that this damage was caused by the US military. The legal basis for assessing the damage is provided by German environmental law. The costs of cleaning up contaminated sites have been estimated at up to 14 million Euros, which are to be covered by the FAG, Germany, and the US, each paying one-third. If the costs increase, the US government will have to pay the next third, then the FAG, and finally the German government.
This treaty has been criticized by the Green Party of Rhineland-Palatine because it is viewed as a treaty between states, which necessitates the participation and agreement of the parliament.
They are demanding an immediate stop to the agreed measures, especially the extension of the airbases in Spangdahlem and Ramstein. Because of this criticism, the parliament passed a law confirming the treaty after the fact, thus ensuring adequate parliamentary participation.
Local NGOs around Spangdahlem and Ramstein, together with national peace and anti-military groups are also demanding that the extension be halted. Local NGOs in particular underline that their objections are not directed against the existing air base or US Americans, but against the excesses associated with the extension.
Local and national groups and individuals whose properties are affected by the extension have raised more than one thousand objections to the planning. The objections concern the extension itself, the noise, the low-level flights, the lack of provisions in a case of a crash, the violation of German environmental laws and the forced expropriations if residents do not sell the desired property.
Individuals, municipalities and associations, which since 2002 also have the right to pursue claims, went to the administrative courts to demand a stop to the extension on the grounds of the violation of German environmental laws. The suits ultimately failed and the court confirmed that the planning of the extension is in general accord with German law, even if it does violate some regulations. The court weighed important military interests against nature and environmental issues and considered the military to have priority.
A few radical left-wing NGOs are calling for the closure of all military bases in Germany and a conversion of these sites to civil use.
According to the expert opinions published by the state of Rhineland-Palatinate, the extension in Spangdahlem will lead to a reduction of noise and air pollution because the US army intends to use fewer fighter planes and more transport aircraft. In Ramstein they provide protective measures such as soundproofing to combat noise pollution in the few affected municipalities.
The government of Rhineland-Palatinate and the FRG welcome the expansion of the airports at Ramstein and Spangdahlem because of the potential economic impact on the local region and importance for the labour market. The investment volume is estimated at more than 500 million Euros, and it is expected that about 30,000 jobs will be created in the state of Rhineland-Palatinate.
5. The German process and practice of reclaiming abandoned military sites
Before a former military site can be used for civil purposes, it is necessary to investigate and, where necessary, remediate the site, in order to avoid ecological damage, financial loss, and health risks. The same applies when the site owner changes, i.e., when a military site is returned to the German army. Therefore, the first step in the process is to register, investigate, assess and remediate suspected contaminated sites.
But the assessment of the extent of contamination depends on detailed information about how the site was previously used by the military.
For reasons of security, the military often withholds important information. The assessment of the contamination must remain incomplete.
- General Legal Framework for the Management of Contaminated Sites
The FRG is a federation of states with each state having its own legislative power according to the Constitution.
There is no national approach towards the management of contaminated sites. There are some provisions included in several federal acts, including the Waste Act, Water Act, Building Law and Emission Control Act, which are relevant to the management of contaminated sites, but these provisions are insufficient. A Federal Soil Protection Act passed on 1 March 1999 aims to complement the existing provisions, to prevent future soil contamination and to harmonize the different approaches of the individual states towards the management of contaminated sites.
Because of a lack of national legislation covering the registration, investigation and assessment of suspected contaminated sites and the clean-up of confirmed contaminated sites, the individual states have developed relevant laws and regulations. Site contamination is subject mainly to the respective Waste Acts, and occasionally also Water Acts or Soil Protection Acts.
In order to harmonize the environmental legislation, the states co-operate in different bodies.
Typically the person/party who caused the contamination pays for its clean-up. For cases in which the actual polluter cannot be held liable, public funding is provided.
According to the Police Acts, the technical authorities at the lowest administration level–i.e., generally the district and city councils–are usually in charge of the management of suspected and confirmed contaminated sites.
- Responsibility for Military Sites and Contaminated Military Sites, i.e., those used by foreign forces
One can distinguish between sites of the Allies after WWII (Western Allies and Armed forces of the former Soviet Union -WGT) and sites used by troops stationed in Germany on the basis of bilateral treaties and NATO.
After 1990, abandoned sites were transferred to the General Property of the Federal Government of Germany regardless of which country the troops who used the site came from. At this point, the Federal Government, as the new owner of the site, becomes fully responsible for any potential contamination on the site. All military sites are considered to be potentially contaminated unless proven otherwise.
- Responsibilities for Sites of Foreign Armed Forces
Foreign armed forces enjoy immunity on the sites used exclusively by them, i.e., they do not, in principle, fall under German legislation and jurisdiction.
Agreements such as NATO- SOFA and the NATO Supplementary Agreement stipulate that the western armed forces stationed in Germany enjoy their own sovereign rights. According to Par. II of the NATO-SOFA, the western armed forces stationed in Germany also have to respect German environmental legislation, which requires them to clean up contamination on the sites they use or regulates the payment of compensation, as the case may be.
The legal status of the armed forces of the former Soviet Union is regulated in the so-called Agreement on Troop Withdrawal (12 October 1990) between the USSR and the Federal German Republic. According to this agreement, the WGT would also have been required to comply with German Federal and state law and remediate their contaminated sites. However, this has not happened in practice. On 16 December 1992, in the Agreement on the so-called "Zero Option", compensation for environmental damage caused by the WGT was waived.
- Properties Used by Foreign Armed Forces
In 1994, in the Agreement on the Clarification of Issues Resulting from War and Post-war Occupation, the Federal Government waived any claims against the victorious western powers in West Germany.
For the period of time from 5 May 1955 to 1 July 1963, i.e., the date when the Federal German Republic joined NATO, the Federal Government waived per agreement claims against the respective dispatching countries for damage to their federal properties, including claims for environmental damage resulting from contamination.
When the FRG joined NATO, the NATO statute and the SOFA, alongside the North Atlantic Treaty, became part of the legal framework for the stationing of foreign armed forces in Germany. The NATO-SOFA was revised in 1993 and provides that German environmental legislation also applies to NATO troops in Germany, and represents a binding minimum standard for them. The Federal Republic of Germany can file claims against the respective dispatching country for soil contamination if the contamination was caused wilfully or by culpable negligence and signifies a violation of the duty of the dispatching country to maintain its sites as stipulated by contract.
Today, the responsibility for contamination on sites formerly used by the Allies essentially lies with the present site owner, usually the Federal Government.
Only private owners of contaminated sites formerly used for military operations may make claims on the basis of the Act on Compensation for Damage Caused by Occupying Forces.
6. The process of conversion
As described above, all abandoned military sites are first transferred to the property of the FRG. In order to promote new uses and the development of these sites, private investors, states, districts, and municipalities can purchase such buildings and properties at reduced cost or on a deferred payment basis (various Decrees by the Federal Treasury between 1992 and 1994).
The Federal Government stimulates the conversion of military sites by offering development funding and/or loans. However, when a property is purchased from the Federal Government, financial responsibility for the management of contamination on the site is not passed on to the purchaser.
Owing to their geographic location, or to their contamination, however, it may be difficult to sell many of these properties or to find an economically viable future use for the sites. For example, in many cases conversion to housing or commercial areas might be impossible. Moreover, the costs of site investigation and clean-up may be unjustifiably higher than the current market value of a property. In this case, taxpayer funds will have to be used for the management of the contamination.
In 1991/92, as part of its PERIFA Programme, the EC supported selected projects which included the management of contaminated sites within the framework of the conversion of military sites into civil sites. Within the 1994 KONVER Programme, the EU promotes the economic diversification of regions which have historically depended to a large extent on the military sector. This support focuses, for instance, on the improvement of the environment and remediation of contamination caused by military operations. The total amount of funding provided within the KONVER programme amounts to 500 million Euros. At this point in time, it is impossible to determine what portion of this total amount will be provided for the clean-up of former military sites.
Applying to a European programme for funding, however, requires five times as much work because of the bureaucracy involved.
One of the challenges in the conversion process is to achieve ecological security. The installation of conversion agencies with the wide participation of local residents and local and federal governmental authorities as well as the trade unions is crucial to measures to end economic dependence on the military presence.
Different associations have been founded to support the conversion process. They give advice to the affected municipalities and evaluate the conversion process. One of them is the BICC, founded in 1994 as an “independent, non-profit organization dedicated to promoting peace and development through the efficient and effective transformation of military-related structures, assets, functions and processes.” (Self-description)
This association works in the areas of
· Defence Budgets: Analysis of the means and methods of reallocating financial resources from the military sector to non-military purposes.
· Research and Development: Reorientation of military R&D capabilities and utilization of this knowledge and creativity for non-military purposes.
· Defence Industry: Opportunities for and barriers to conversion of the arms industry, assistance in down-sizing overcapacities and reducing dependence on arms production
· Demobilization and Reintegration: Programs for the demobilization of military and civilian personnel employed by the armed forces and their reintegration into non-military employment.
· Base Closures: Programmes that promote the efficient closure and successful civil redevelopment of the world's excess military facilities
Surplus Weapons: Alternative use, disposal or scrapping of surplus weaponry with the purpose of avoiding indiscriminate exports
The BICC accompanies the conversion process in municipalities in North-Rhine-Westphalia and Brandenburg.
Special manuals have been developed to offer advice to the affected municipalities and all involved partners on how to handle former military sites.
I will now describe how the conversion of former military areas proceeds in Germany:
- Release of the site
The FRG assesses whether there is any need for the site on the part of national military or civil interests and if not, the government dedicates the area to civil use. The area can now be put under administration by a municipality or state. The municipality/state should be informed early on, and will begin the planning phase, with the participation of local residents and institutions, to determine the needs and interests of the participants. Needs are quite different in cities and rural areas where, for instance, there is little demand for a large business park.
Clearing the site of contamination
One of the most important points is the extent of the contamination of the area and the costs of clean-up. According to the Federal Soil Protection Law, in an initial general report the FGR assesses the contamination and determines the necessary measures to clean up the area. An interdisciplinary conversion working group, composed of representatives of the municipalities/ the state, the Federal government and the authorities responsible for building and the environment, accompanies the entire conversion process with the aim of reaching a consensus.
The Federal government is charged with the rehabilitation of the area and bears 100% of the costs if the contamination is deemed a danger to the environment and local residents.
Handing over of the site
After a first, emergency clean-up, the municipality/state that has developed a subsequent use for the area itself buys the site in order to use it for municipal interests or to sell it to a private investor. The price depends on the stated damage that remains to be cleaned up. Often, the municipalities do not have enough money to invest themselves. They therefore search for private investors who also agree to take account of the municipality's economic and environmental interests, and to guarantee a mixed use that will benefit local residents and promote regional economic development. Depending on the need for further clean-up, including the still unknown costs, the FRG will be charged by law, or by contract with the new owner, with paying up to 90 % of the cost of further clean-up measures.
Because of the long clean-up process, it may be useful for the municipality/the state to plan an interim use of the sites, particularly of buildings, with all affected participants, and to maintain the structures, especially if a later rehabilitation is possible.
Determination of civil use
There are four possible models:
- The Federal state remains the owner and the municipality uses the area with certain charges for the development costs, and participates in the profits. The risk for the municipality is less.
- Private investors buy the site and are charged with the development costs. If an investor can be found and co-operation is possible, this model is the most successful.
- The municipality buys the site itself and sells it. This model is rarely used because the municipalities are too poor.
- The Federal state sells the site to the municipality but still bears the development costs and takes part of the profit. The risk for the municipality is not so high, but the Federal state retains a certain influence.
A public-private-partnership model (PPP) has been developed in order to combine the economic interests of an investor and the interests of local residents in jobs, recreation areas and the future protection of the environment.
It demands that all participants make an effort to find a consensus that satisfies all interests. Experiences with this model have been quiet successful. At the planning stage, local residents have the right to be involved. To facilitate investments, the Federal state provides development funds which depend on the aim of the investor. In this way, the Federal state can direct and influence further use.
7. Examples of successful conversion projects
First, I would like to mention that we only find conversion projects organized by municipalities and Federal state authorities and/or private investors, in the best case with strong participation by local residents. The reason for this is that the Federal state becomes the first owner of the former military site, and local grassroots initiatives are economically incapable of organizing the civil use of a military site on their own. Federal state and municipal authorities are always involved in the conversion process.
At the moment, many projects remain unfinished for a variety of reasons, such as the long clean-up process and the bureaucracy involved in getting the necessary permissions.
But what does successful conversion mean? Which criteria are involved, from the economic interests of investors to the public interest of the local residents?
We find a highly developed experience with conversion projects in Rhineland-Palatine. In general, from the perspective of grassroots democracy, a conversion project is considered successful if all of the persons, groups and institutions involved co-operate as early as possible and try to consider all interests.
As a first example, I will discuss the ecological model project of the Ober-Olmer Wald (forest).
This forest (formerly 6000 ha) has been used for military purposes since the 18th century. The trees were uprooted and 350 ha of forest remained. Military use of the area was abandoned in 1993. Nevertheless, the forest retained rich animal and plant life, including some protected species. After the clean-up of the contaminated soil and water, 26 of 28 air-raid shelters were pulled down and grass was planted. The 2 remaining air-raid shelters were remodelled to shelter bats. The rest of the military installations (barracks, fences etc.) were dismantled. After the removal of the asphalt streets, the area was covered with soil from nearby areas and rehabilitated.
The measures were planned and realized with a strong and effective co-operation between ecological experts and local authorities. Today, the population of the region enjoys the forest for their own recreation. The forest also serves the purposes of ecological tourism and an increasing labour market. The reclamation of the forest with many protected and rare species is a good example of how ecological interests can be joined with economical and labour market interests. The project was developed with the municipalities involved and a high level of participation by local residents.
The second example is the redesigning of the white barracks in Zweibrücken into an ecological district with a housing estate. From 1977 until 1994, the area was used by the US Air force. Then it was returned to the FRG, which sold it to the municipality of Zweibrücken. The town sold it to a private investor who made a contract with the municipality concerning the clean-up and the aims of the restoration project.
From the beginning, an interdisciplinary network of architects, landscape architects, urban planners and preservationists worked to find a planning solution. This example shows how the investor and the municipality worked effectively together after assessment and clean-up because of the investor's personal interest in taking ecological criteria into account for the project.
The aim was to conserve the structure of the barracks and the surrounding open terrain with old trees. Some large halls were pulled down to gain space for playgrounds, meeting points and broad gardens, for common as well as individual, private use. The necessary infrastructure measures included parking spaces for bicycles and cars combined with the structure of the area. A particular feature was the ecological use of rainwater. A water recycling system has been put in place, which reduces costs and is ecological and economically useful.
8. Assessment of conversion projects by local residents, local authorities and the Federal state
Conversion projects create their own specialized market. The clean-up of military sites requires experts to assess the existing contamination and to organize the disposal of munitions, demolition of installations and barracks etc. A large official planning staff is involved in the reclamation of a military site, and becomes part of the “conversion market”, which is an economic factor particularly in regions with poor infrastructure.
A positive evaluation of conversion projects by all involved partners can be expected:
- If local residents are highly involved and their interests are considered
- If the conversion has a positive impact on the local economy and labour market
- If the investors' interest in a return on their investment leaves room for ecological factors and the interests of the local residents
We also find conversion projects that provide no benefits, and indeed have a negative impact on the region. Sometimes the government praises a project highly that offers not a single advantage to the local population. When negotiating with much-needed investors, in particular, the FRG and the local authorities risk allocating development funds without sufficiently considering the needs of the local residents. To deal with financial resources and use them in an appropriate way is a challenge.
9. US liability for environmental damage
Penal environmental law in Germany is rather strict, and I will now outline how the German Penal Code can be used to prosecute environmental contamination, property damage and personal injury caused by US military stationed in Germany.
The framework for claims arising from U.S. military operations in Europe is the North Atlantic Treaty Organization Status of Forces Agreement ("NATO-SOFA").
It also provides in some cases for the exercise of jurisdiction by the receiving state (here, the FRG), but in 1963 Germany waived the right to prosecute and investigate criminal offences against US military in cases of concurrent jurisdiction. The German prosecutor must be informed within 21 days of an offence by a member of the military, and will then decide if the waiver should be recalled in cases where the interests of the German administration of justice make the exercise of German jurisdiction imperative.
The Federal High Court of Justice decided that even if the waiver is not recalled within 21 days, German jurisdiction applies if the sending nation does not exercise its jurisdiction. Moreover, if the defendant is dismissed from the military, and the sending state has not exercised its jurisdiction, the NATO-SOFA no longer applies and the receiving nation (i.e., the FRG) can apply its jurisdiction without the restriction of Art. 19 of the Revised NATO- SOFA Supplementary Agreement.
The NATO Supplementary Agreement regarding forces in Germany stipulates that NATO forces in Germany may apply their own regulations in the fields of "public safety and order" where such standards are equal to or higher than those of Germany. German regulators argue that this provision requires the application of German environmental regulations in some instances. The NATO Supplementary Agreement excludes reciprocal compensation for damages caused by military troops. Only in the case of damage to the property of third parties by NATO military must the receiving and sending nations pay one-half of the costs each.
- Conversion projects should be planned with the participation and co-operation of experts, local residents, and local and federal authorities, must consider all interests involved.
- Projects that combine ecological and economic interests in the concerned region, and which replace the former dependence on the military as a main employer by creating new job opportunities can expect a high level of acceptance.
- The initial assessment and clean-up using FRG funds needs the full co-operation of the DOD, which should provide all necessary information on the former use of the military site.
- The conversion process should be accompanied by a scientific evaluation in order to achieve a successful conversion project.
- The FRG should insist on the military's liability for environmental contamination. The duty of the military to hand over a clean site should include (according to the environmental laws of the host nation) the removal of any environmental contamination. (Art. 48, 49 and 54a of the NATO Supplementary Agreement)
- The FRG should be exempted from covering the costs of clean-up. These funds could be used to stimulate the labour market in the neighbourhood of the former military sites.
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