Notable statements on international law during September 2020

Published: 16 December 2020 Author: Stefan Talmon

Throughout the year, Germany makes numerous statements on international law. Not all these statements form part of a case study presented on GPIL. However, these statements may nevertheless be of interest to international lawyers. We therefore compile these statements on a monthly basis.

1 September 2020

The German Permanent Mission to the United Nations tweeted:

“UNSC reform is an important issue that cannot be forgotten. The world needs a Security Council that is representative – especially as its decisions represent binding international law. Germany works with G4 partners to highlight this issue both on & off the Council.”

2 September 2020

During the UN Security Council VTC meeting on Libya, the German representative indirectly accused the Russian Federation of violating the Council’s own arms embargo on Libya, stating:

“The delivery of guns and bombs, of unmanned aerial vehicles, of missiles and launch systems, of armoured vehicles, of ground and air defence systems, this entire build-up of arms and military material, is obvious, as is the harmful presence of foreign fighters and mercenaries.

These blatant violations of the arms embargo must end in the Council. We frequently have exchanges about double standards and hypocrisy. We believe that this is a very good example of this, and we are extremely concerned by the fact that members of the Security Council and participants of the Berlin Conference are involved in this.”

4 September 2020

During the 63^rd plenary meeting of the UN General Assembly, the German representative made the following statement on behalf of the European Union and its Member States in explanation of their vote on the inclusion of an item “The situation in the temporarily occupied territories of Ukraine” into the agenda of the 75^th UN General Assembly:

“The European Union reaffirms its resolute support to Ukraine’s independence, sovereignty and territorial integrity within its internationally recognized borders. We reiterate that we do not recognise and continue to condemn the illegal annexation of the Autonomous Republic of Crimea and the city of Sevastopol by the Russian Federation, which is a violation of international law. It remains a direct challenge to international security, with grave implications for the international legal order that protects the unity and sovereignty of all States.”

4 September 2020

On 2 September 2020, the U.S. Secretary of State announced sanctions and visa restrictions against the Prosecutor of the International Criminal Court (ICC) and the ICC’s Head of the Jurisdiction, Complementarity and Cooperation Division for having directly engaged in or for materially assisting an effort to investigate U.S. personnel for alleged war crimes in Afghanistan without the consent of the United States. The United States considered any investigation of U.S. personnel “unjust and illegitimate”, and a “politically-driven targeting of U.S. personnel”. On 4 September 2020, Federal Foreign Minister Heiko Maas commented on the U.S. sanctions against ICC officials:

“The imposition by the US of sanctions on two high-ranking ICC staff members, including Prosecutor Fatou Bensouda, calls into question the independence of the International Criminal Court and risks seriously undermining its work. We cannot accept this.

Germany has supported the ICC and its work from the outset. We also know from our own history that a strong and independent international organisation is needed in order to bring serious international crimes to justice. We have full confidence in the work of the ICC and consider the fact that the US has decided to take this further step to be a serious mistake. We are continuing to work to ensure that the ICC can play its vital role in the international fight against impunity without hindrance and call on the US to withdraw these measures.”

4 September 2020

Asked to comment on the international law effects of the Turkey-Libya Memorandum of Understanding (MoU), the Federal Government replied:

“As the European Council stated in its conclusions of 12 December 2019, the Turkish-Libyan ‘Memorandum of Understanding’ on the delimitation of maritime jurisdictions in the Mediterranean Sea infringes upon the sovereign rights of third States, does not comply with the Law of the Sea and cannot produce any legal consequences for third States.”

The Federal Government was also asked whether in its view the Turkey-Libya MoU breached the 1923 Treaty of Lausanne. In reply, the Government stated:

“The Treaty of Lausanne defines the boundaries of the national territory of Turkey. It is not applicable to the delimitation of functional areas of jurisdiction under the law of the sea.”

In another question concerning the Turkey-Libya MoU the Federal Government was asked whether in its view the Government of Turkey was thinking of or pursuing a unilateral movement of the maritime boundaries in the Mediterranean Sea. The Federal Government replied:

“According to both the Convention on the Law of the Sea and customary international law, when delimiting maritime areas between States with opposite or adjacent coasts, an amicable solution based on the individual circumstances and equity must be sought. All affected coastal States are to be involved in this solution. This also applies to island States and mainland States with offshore islands.”

4 September 2020

In response to parliamentary questions on the parallel institutions of government in Libya, the Federal Government stated:

“The institutional division of the relevant institutions continues. The internationally recognized Government of National Accord, based in Tripoli, works together with the headquarters of the Central Bank, the National Oil Company and the Libyan Investment Authority, which are also located in Tripoli. The internationally unrecognized so-called ‘Interim Government’ maintains corresponding parallel institutions in eastern Libya.”

“According to the relevant resolutions of the UN Security Council, including resolution 2362 (2017), only the Tripoli-based National Oil Company (NOC) has the right to export oil from Libya.”

8 September 2020

In reply to parliamentary question on the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, the Federal Government stated:

“The central provision on the provisional application of CETA can be found in Article 30.7, paragraph 3. As lex specialis, this provision prevails over the provisions on the provisional application of treaties in Article 25 of the Vienna Convention on the Law of Treaties of 23 May 1969 which codifies customary international law.”

9 September 2020

On 9 September 2020, the Federal Government submitted a motion to the Federal Parliament to extend the mandate of the German Armed Forces deployed in the fight against the “Islamic State” (IS) terrorist organization in Iraq and Syria. The Federal Government based the military operations, inter alia, on the right to collective self-defence. In explanation of the motion, the Federal Government declared:

“With the planned deployment of German armed forces, the Federal Republic of Germany is supporting Iraq, the international anti-IS coalition and the regional partners in their fight against IS on the basis of the right to collective self-defence in accordance with Article 51 of the Charter of the United Nations and within the framework of the resolutions of the United Nations Security Council. Within the framework of the international anti-IS coalition and the NATO mission in Iraq, it also contributes to capacity-building of the regular Iraqi armed and security forces at the request of and in agreement with the Iraqi Government. […]

The continuous territorial control of IS over areas in Iraq and Syria was successfully broken by the international anti-IS coalition and its regional partners in March 2019. Nevertheless, the armed attack by IS continues and makes it necessary to continue to combat it with military means within the framework of self-defence. IS continues to lay claim to the areas which it previously controlled and beyond and orchestrates its actions to regain strength, to exert influence and to expand its underground network in areas in which territorial control by security forces is not effectively guaranteed. IS continues to have the resources, military means and the will to exercise territorial control temporarily and regionally. IS is still able and willing to carry out attacks in Syria, Iraq and Europe and beyond. Despite the military successes achieved against the IS, the right of self-defence under Article 51 of the Charter of the United Nations therefore continues to apply.”

The Federal Parliament approved the further deployment of the German Armed Forces in the fight against IS on 29 October 2020.

10 September 2020

Commenting on the death sentence imposed in Iran, the Federal Government Commissioner for Human Rights Policy and Humanitarian Assistance at the Federal Foreign Office stated:

“[A] fair trial in keeping with the principles of the rule of law […] includes not forcing confessions through torture!

[…] the human rights situation in Iran is getting continually worse and falling further and further below the international obligations into which the country has entered.

The German Government is opposed to the death penalty in all circumstances, as it is a brutal and inhumane form of punishment.”

15 September 2020

In response to a parliamentary question concerning the reacquisition of Turkish citizenship of persons having renounced that citizenship upon naturalisation, the Federal Government stated:

“The Turkish authorities apply their own citizenship law to naturalisations. Each State has the right, within the limits set by international law, to determine the acquisition and loss of its nationality.”

15 September 2020

During the 45^th session of the UN Human Rights Council, the German representative stated with regard to the human rights to safe drinking water and sanitation:

“Within the last decade since the explicit recognition of water and sanitation as human rights, there has been remarkable progress in the realization of both rights in many regions. However, climate change, water scarcity and a growing population provide serious obstacles to the fulfilment of the human rights to water and sanitation since their realization depends on the availability and use of resources.”

16 September 2020

Asked about the current sum of Vattenfall’s claim in the ICSID arbitration proceedings ARB/12/12 against the Federal Republic of Germany, the Federal Government replied:

“On 22 March 2019, Vattenfall specified its claim as amounting to some 4,381,938,000 euros without interest and some 6,095,521,000 euros with interest.”

Asked about the cost of defending the case, the Federal Government replied:

“In connection with the pending arbitration proceedings ARB/12/12, the Federal Republic of Germany has incurred legal defence costs of 21,713,633.49 euros (as of 31 August 2020). Broken down by year, the legal defence costs incurred are as follows (each rounded amount in euros):

These costs are broken down by type of expenditure as follows:

The Federal Government was also asked about the legal consequences for the Vattenfall proceedings of the ECJ’s Achmea judgment and the subsequent 15 January 2019 declaration of 22 EU Member States, including Germany. The Federal Government replied:

“The Federal Government is of the opinion that the Achmea judgment also applies to the ECT [Energy Charter Treaty] because of the comparable starting position. On 15 January 2019, the Federal Republic of Germany and 21 other EU Member States made a majority declaration proposed by the EU Commission, in which these Member States express their willingness to terminate their respective bilateral intra-EU investment promotion and protection agreements and declare that, in their opinion, the ECJ’s prohibition of intra-EU arbitration proceedings also applies to ECT-based intra-EU arbitration proceedings.”

17 September 2020

During the UN Security Council VTC meeting on the protection of civilians in armed conflict, the German representative emphasised the link between conflict and food security and said that “this topic belongs in the Security Council.” He also said:

“We must act early on if we want to break the deadly link between conflict and hunger. […] We must also focus on our humanitarian operations. They are attacked, delayed or obstructed from delivering lifesaving assistance. All parties to conflict must comply with their obligations under international humanitarian law to respect and protect humanitarian relief personnel so they can perform their vital jobs. We call on all relevant actors to provide safe, rapid and unimpeded access to all people in need. The missions mandated by this Council are tasked with creating an environment conducive to the safe delivery of humanitarian assistance, respecting the humanitarian principles of humanity, neutrality, impartiality and independence. Safeguarding the space for principled humanitarian action needs to be a central element of this Council’s action.”

21 September 2020

During the regular government press conference, the spokesperson for the Federal Foreign Office explained the German position on the status of Taiwan as follows:

“The Federal Republic of Germany established diplomatic relations with the People’s Republic of China in 1972 and, as part of its one-China policy, recognizes the People’s Republic of China as the only sovereign State. It is, however, the case that we maintain economic and cultural relations as well as contacts with Taiwan. […] With regard to the question of Taiwan in international fora, it is the case that Germany strongly supports Taiwan’s practical participation in international fora, provided that such participation is not reserved to sovereign States. However, we are in favour of Taiwan becoming very actively involved in many international areas and fora in the fields of culture, education, science and research, and we express this again and again.”

22 September 2020

During the 45^th session of the UN Human Rights Council, Germany joined 34 other States in a Statement on the 20^th Anniversary of the two first Optional Protocols to the Convention on the Rights of the Child which read in part as follows:

“We equally welcome and wish to highlight the relevance of the guidelines, regarding the implementation of the protocol on sale and sexual exploitation of children issued exactly one year ago by the Committee on the Rights of the Child. They provide us with a deeper understanding of the protocol’s terminology and substantive provisions, also in light of recent developments in the digital sphere; they enable a more effective and prevention-focused implementation and ensure that the protocol remains a living instrument enhancing the protection of children. Last but not least, they are highly commendable in supporting and strengthening initiatives and efforts undertaken by State parties to better fulfil their obligations under the protocol, including in respect of reporting.”

22 September 2020

During the 45^th session of the UN Human Rights Council, Germany delivered a statement on behalf of the EU which read in part:

“Regarding the death penalty, we reaffirm our strong opposition to its use at all times and under all circumstances and we call for the universal abolition of the death penalty. While over 170 countries no longer impose the death penalty, we are concerned about tendencies to resume it in other countries. The death penalty, in particular against minors, is a cruel and inhumane punishment. It violates the inalienable right to life and is incompatible with human dignity.”

23 September 2020

During the 45^th session of the UN Human Rights Council, the German representative stated with regard to the human rights situation in Venezuela:

“The findings [of the Fact-Finding Mission on the Bolivarian Republic of Venezuela] comprehensively demonstrate the widespread and systematic character of the human rights violations against the civilian population. Germany condemns the human rights violations established by this report, which likely constitute crimes against humanity.”

23 September 2020

During the 45^th session of the UN Human Rights Council, the German representative stated with regard to the human rights situation in South Sudan:

“We remain gravely concerned about reports of killings, torture, intentional starvation of civilians, intimidation, displacement and enforced disappearances as well as arbitrary arrests. We are deeply worried about the ongoing recruitment and use of child soldiers both by government and opposition groups. We call on the South Sudanese government to issue clear, public orders to end the recruitment of child soldiers, to ensure their swift release and to prosecute the commanders responsible.”

23 September 2020

The Permanent Mission of Germany to the United Nations tweeted:

“There is no hierarchy among human rights, no subordination of one to the other. Everyone is entitled to all the rights & freedoms set forth in the Universal Declaration of Human Rights, without distinction of any kind.”

24 September 2020

During the UN Security Council VTC Meeting High-Level Event on “Maintenance of international peace and security: Global governance post COVID-19”, State Minister at the Federal Foreign Office, Niels Annen, stated:

“The UN’s founding principles need to be upheld – such as the Charter’s call on all Members of the Organization to refrain from the threat of use of force against the territorial integrity or political independence of any State. Many of the Charter’s principles are timeless. At the same time, we must not be complacent; we need to be innovative so that our institutions are capable of tackling today’s challenges.

The Security Council has a central role to play in bringing to life the value of international cooperation. The Charter endows the Council, as we all know, with special stature, powers and responsibilities. Its functioning is essential not just for its own, but for the UN’s overall reputation. The Council has lost trust because it could not find clear words on a joint approach to COVID-19 over months. And until today progress has been insufficient in implementing resolution 2532. […]

It has become glaringly obvious: The Council needs to be reformed. Only then can we ensure the authority and legitimacy of the Council. […]

Innovation is also needed when it comes to dealing with emerging threats to international peace and security. We must do more on crisis prevention and on how to address catalysts of conflict such as human rights violations, the effects of climate change and also threats to global health. We need to advance a more preventive agenda.”

25 September 2020

After the UN Security Council’s Libya Sanctions Committee could not agree on the publication of the interim report of the Panel of Experts on Libya, Germany as chair of the Committee brought the matter to the attention of the Council during a closed-door session on 25 September 2020. The report ostensibly stated that the arms embargo on Libya had been violated, inter alia, by Qatar and Turkey, supporting the UN-recognised government in Tripoli, and Russia and the United Arab Emirates, supporting the rebels under General Haftar. The report also said that 11 companies violated the arms embargo, including the Wagner Group, a private Russian security company, which provided between 800 and 1,200 mercenaries to General Haftar. Prior to the meeting, Germany’s Deputy Permanent Representative to the United Nations, Ambassador Günter Sautter, stated:

“Many delegations have asked for the publication of the panel of experts’ interim report. This would create much needed transparency. It would contribute to naming and shaming those who continue to blatantly violate the arms embargo in spite of commitments that have been made. This would also strengthen the political process that we as Germany are supporting via the Berlin process and it would be in accordance with the practice that we have on other sanctions committees. […] I hope that the two delegations who have problems with this will give green light – you may have read which delegations I am talking about; I read in the press that Russia and China have made statements on this.”

Despite the German attempts, Russia and China blocked the report’s publication.

25 September 2020

During the regular government press conference, the Federal Government was asked to explain how its recognition of Juán Guaido as Interim President of Venezuela was compatible with its insistence on a rules-based international order when the United Nations recognized Nicolas Maduro as President of Venezuela. The spokesperson for the Federal Foreign Office replied:

“In principle, I can perhaps say again that we advocate a rules-based order based on the basic principles of the UN Charter, namely freedom, democracy and the rule of law. These are the basic principles that we consider applicable based on rules and that also define international law.”

25 September 2020

During the 45^th session of the UN Human Rights Council, Germany made a statement on behalf of 47 States on the human rights situation in Iran which read in part:

“We remain deeply concerned about the persistent human rights violations in Iran especially related to the rights to freedom of expression, association and assembly. Credible Reports of arbitrary detentions, unfair trials, forced confessions and practices of torture and ill-treatment of detainees in the context of the recent protests are particularly concerning. We urge Iran to ensure independent, transparent and credible investigations on the disproportionate use of force against non-violent protesters, and to hold all perpetrators accountable.

We strongly condemn Iran’s continued use of the death penalty, including against juvenile offenders […]. We reiterate our opposition to the death penalty in all circumstances, and urge Iran to enact a moratorium.”

28 September 2020

With regard to the request by the Russian Government to be given consular access to Russian opposition politician Alexei Navalny, who was treated in Germany for poisoning with a novichok nerve agent in Russia, the spokesperson for the Federal Foreign Office stated:

“It is not the case as you could sometimes read, namely, that the Federal Foreign Office has in some way restricted the Russian embassy’s consular access to Mr. Navalny. In a note dated 23 September, the Federal Foreign Office also informed [the Russian Embassy] that this request for consular access was being conveyed to Mr. Navalny. So this went its normal diplomatic route; because the Federal Government adheres strictly to the Vienna Convention on Consular Relations. But it is of course the case that Mr. Navalny is free do decide whether to receive this consular visit or not. That means, whether one wants to receive consular assistance is a decision of the person who is potentially to receive that assistance.”

29 September 2020

During the 45^th session of the UN Human Rights Council, Germany delivered the following statement on behalf of the European Union:“We take note of the Human Rights Advisory Committee’s report on ‘the importance of a legally binding instrument on the right to development’. The EU would like to reiterate that we are not supportive of the idea of elaborating a legally binding instrument as the way forward. We do not see the added value of such a legal instrument if not all states agree on its underlying premises and therefore are unlikely to ratify it. The EU fully supports a human rights-based approach to development, recognizes the central role of individuals as bearers of human rights and human beings as subjects of development. The EU remains strongly committed to promoting respect, protection and the fulfilment of all human rights and fundamental freedoms, these elements mutually reinforcing each other.”

30 September 2020

In response to parliamentary questions on investment protection within the European Union, the Federal Government stated:

“The Federal Republic of Germany has concluded bilateral investment protection agreements with 127 countries, which are currently in force. These include 114 investment protection agreements with third countries and thirteen agreements with member States of the European Union.”

“In the so-called Achmea judgment of March 2018, the ECJ ruled that arbitration clauses in intra-EU investment protection and promotion agreements are not compatible with Union law. There is consensus among the EU Member States that as a result of the Achmea ruling, all so-called intra-EU investment protection agreements must be terminated.”

“Changes to corporate structures, including the establishment of a holding company in third States for investments in the EU, are subject to complex decision-making processes in which investment protection only plays a minor role due to the high legal protection standards in the EU. In international law it is also recognized that a relocation of the seat of the company or the establishment of a holding company immediately before or during an investment dispute with the aim of taking legal action under a certain investment protection agreement is an abuse of right. International arbitration tribunals therefore usually reject such claims as inadmissible.”