(b) Against this background, the Federal Government is responsible for negotiating
and concluding confidentiality agreements as the basis for international cooperation
between intelligence services.
133
The primary aim of such confidentiality agreements is to safeguard the exchange of
confidential information with other states, given that the disclosure of classified information harmfully affects national sovereignty. […] In return, the Federal Republic of
Germany must have the ability to enter into binding obligations of mutually assured
confidentiality with agencies of foreign states (cf. BTDrucks 12/4891 p. 18).
134
The practice of intelligence services, however, is such that cooperation agreements
may also take the form of so-called memoranda of understanding or memoranda of
agreement which, from a legal perspective, have the status of non-binding commitments […].
135
Art. 59(2) first sentence GG does not affect the competence, which is rooted in the
sovereign authority in external relations, to choose the respective means of action
deemed most appropriate to engage in relations under international law; this includes
the possibility to refrain from creating binding obligations in this regard. It is incumbent upon the Federal Government – in cooperation with existing contracting parties
as well as – potentially – newly acquired contracting parties – to decide whether and
when to enter into binding obligations under international law, as well as to decide on
the content of such obligations. In particular, foregoing the conclusion of an international treaty is a reasonable option where the concerned subjects of international law
are still in the early phase of treaty negotiations, where new forms of cooperation are
being tested, or where coordination or consideration is sought in relation to other subjects of international law. Moreover, Art. 59(2) first sentence GG does not bar concerted action between contracting parties in the field of foreign policy on the basis of
the contractual status quo, even if such action deliberately avoids the creation of
binding obligations – for instance, in consideration of ongoing political developments
or such developments where the outcome is not yet sufficiently predictable. In this
context, it is precisely not intended to create new or further-reaching rights or obligations (cf. BVerfGE 90, 286 <360>).
136
d) The right to collect evidence is furthermore limited by state interests of the Federation or of a German Land (welfare of the state, Staatswohl) that would be jeopardised in the event that confidential information were disclosed (cf. BVerfGE 67, 100
<134 et seq.>; 124, 78 <123>).
137
When determining the constitutional limits to the parliamentary right of inquiry, its
significance for the overall constitutional framework must be taken into account. This
also applies to the interpretation and application of the term “threat to the welfare of
the state“. Accordingly, with respect to whether witness statements or the handing
over of files could pose a threat to the welfare of the state, it must first be considered
that the use of information submitted to a committee of inquiry is in turn governed by a
specific set of confidentiality regulations, and that the welfare of the state is entrusted
138
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