Published: 07 January 2021 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 October 2020
During the 45th session of the UN Human Rights Council, Germany joined 34 other States in a statement on the Follow-up and implementation of the Vienna Declaration and Programme of Action (VDPA) which read in part as follows:
“The Vienna Declaration states that human rights are universal, indivisible, interdependent and interrelated. The VDPA makes clear that ‘every person is born equal and has the same rights to life and welfare, education and work, living independently and active participation in all aspects of society’. However, intersex people – that is, individuals who are born with sex characteristics that do not fit the typical definition of male or female bodies – continue to face serious and widespread human rights violations and abuses.
In many countries around the world, intersex people are subjected to medically unnecessary surgeries, hormonal treatments and other procedures in an attempt to change their appearance to be in line with gendered societal expectations of male and female bodies without their full and informed consent.
Intersex persons are often denied full access to their medical records.
Throughout their lives, people with diverse sex characteristics face discrimination in all areas of life, such as access to education, health, employment and sports, among others, as well as restrictions on the exercise of legal capacity and in access to remedies and justice.
The root causes of these human rights violations and abuses include harmful stereotypes, spread of inaccurate information, stigma, taboos, and pathologization.
It is high time this Council address human rights and abuses violations against intersex people and their root causes.”
1 October 2020
During the 45th session of the UN Human Rights Council, Germany delivered the following statement on behalf of the European Union on the Follow-up and implementation of the Vienna Declaration and Programme of Action (VDPA):
“With the adoption of the Vienna Declaration and Programme of Action in 1993, all States reaffirmed that human rights derive from the dignity and worth inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms.
States also reaffirmed that human rights are universal, indivisible, interdependent and interrelated. The VDPA calls upon States not to create a hierarchy of rights or to use cultural particularities or the status of development to justify human rights violations. These fundamental principles of the international human rights system – which all States have signed up to – are still of utmost relevance today. We are concerned when they are misunderstood or called into question.
The VDPA stipulates that ‘[…] while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.’ This clearly demonstrates that human rights must not be an afterthought, but form a basis for sustainable development. Particularly upholding the rule of law, good governance, political pluralism and strong and independent institutions, as well as a vibrant civil society are crucial factors for a country’s sustainable development. Civil and political rights and economic, social and cultural rights complement and reinforce each other. […]
The European Union is committed to upholding the universality of human rights and rejects any attempts to use cultural relativism, security or status of development as a pretext to divert from the standards the international community has set itself in the VDPA, the UDHR, the Human Rights Covenants and other human rights treaties.”
1 October 2020
During the 45th session of the UN Human Rights Council, the representative of Germany declared with regard to the human rights situation in Ukraine:
“We remain concerned about the reports of serious human rights violations including arbitrary detention, often amounting to enforced disappearance, as well as torture and ill-treatment of conflict-related detainees in the so-called ‘Luhansk and Donetsk People’s Republic’.
We remain deeply concerned about the ongoing deterioration of human rights in the illegally annexed Autonomous Republic of Crimea and the city of Sevastopol.
We reiterate that we do not recognise the illegal Russian annexation.
International and regional human rights monitoring mechanisms must be granted unrestricted access to the whole territory, including areas that are currently not under the control of the Ukrainian government.”
1 October 2020
In a parliamentary question it was asked whether the reasons that led the Federal Court of Justice in 2000 to classify the Kurdistan Workers’ Party (PKK) as terrorist organization still persisted. The Federal Government replied:
“Since 2000, the Federal Court of Justice has classified the PKK as a foreign terrorist organisation in terms of section 129b of the German Penal Code in several decisions. The Court has expressly dealt with the question that for the offences, that is murder and manslaughter, that are part of the activities of the PKK and its affiliate organizations (KCK and HPG abroad and CDK and KCD-E in Germany) there is no ‘right of self-defence’ and there is no justification (under international law); in particular, these offences do not fall under the combatant privilege and are also not lawful under customary international law.”
“The role as a party to an armed conflict and the classification as a terrorist organization are not mutually exclusive.”
1 October 2020
In reply to a parliamentary question the Secretary of State at the Federal Foreign Office, Miguel Berger, stated:
“Since 2015, the Federal Government has been advocating that the United Nations Security Council refer the situation in Syria to the International Criminal Court. Such a reference has so far failed due to the veto of China and Russia.”
6 October 2020
During the 45th session of the UN Human Rights Council, Germany voted against the renewal of the mandate of the Independent Expert on the promotion of a democratic and equitable international order. Germany also voted against the resolution on human rights and unilateral coercive measures. With regard to the latter the German representative provided the following explanation of vote on behalf of the EU Member States that are members of the Human Rights Council:
“[T]he EU rejects the fundamental underlying premise of this resolution that unilateral coercive measures negatively impact the enjoyment of human rights. The EU restrictive measures are not punitive but seek to bring about a change in the policy or conduct of those targeted in line with the objectives of the Union’s Common Foreign and Security Policy, which include respect for democracy and the rule of law and for all human rights and fundamental freedoms.
Also, the EUs targeted approach to restrictive measures ensures that the supply of humanitarian assistance, including efforts in the global fight against the recent COVID-19 pandemic, is never impeded.”
Similarly, Germany voted against the resolution on the right to development. The German representative provided the following explanation of vote on behalf of the EU Member States that are members of the Human Rights Council:
“[T]he EU is strongly committed to promoting respect, protection and fulfilment of all human rights and to achieving sustainable and inclusive development and eradicating poverty.
The European Union reiterates its support for the Right to Development, as based on the indivisibility, interdependence, universality and inalienability of all human rights, the multidimensional nature of development strategies and the individuals as the central subjects of the development process. We emphasise that the primary responsibility for ensuring the realisation of the right to development is owed by States to their citizens.
The EU has a human rights-based approach to sustainable and inclusive development encompassing all human rights and all persons. Human rights, democracy, the rule of law and good governance are essential for achieving inclusive and sustainable development.
We regret that the resolution before us does not reflect this balance […]. We also regret the resolution’s continued focus on the legally binding instrument. The EU is not in favour of the elaboration of such an instrument, as we do not believe that an international legal standard of a binding nature is the appropriate instrument to realise the Right to Development.”
Furthermore, Germany voted against the draft resolution on “Eliminating inequality within and among States for the realization of human rights”. The German representative provided the following explanation of vote on behalf of the EU Member States that are members of the Human Rights Council:
“The EU welcomes that the resolution highlights the importance of a human-rights-based approach towards the implementation of the SDGs, as well as the role that HRC mechanisms can play in this regard. […]. However, the text reframes international human rights law as something to be implemented primarily through technical assistance, cooperation and consensus based upon sovereignty.
The EU cannot subscribe to such a reading. As enshrined in Art. 10 of the Vienna Declaration, while it is clear that development facilitates the enjoyment of human rights, it is not sufficient to fulfil the obligations we as States have under international human rights law. Human rights, democracy, the rule of law and good governance are essential for inclusive and sustainable development.”
Germany also set out the objections of European Union to certain amendments to a EU co-sponsored draft resolution on “Rights of the child: realizing the rights of the child through a healthy environment”. The German representative declared:
“The Convention on the rights of the child is the basis of the resolution. It is a holistic framework on rights and guiding principles. The resolution should adhere to the foundational value of the CRC to address the rights of the child in a holistic and comprehensive way. […].
The EU underscores the need for the Council to adhere to the spirit of the CRC in safeguarding the agency of children themselves. Children have a right to be heard in all matters affecting their rights, including decision-making which can be crucial for their development or survival. The Convention is very clear when it comes to the rights of the child to freedom of expression, freedom of association and freedom of assembly, which are crucial in ensuring such participation: these rights cannot be restricted on any other grounds than those prescribed by law and that are necessary for the protection of national safety, order, health or morals or for the safeguarding of rights of others. Adding a caveat or qualifying the participation of children in decision-making with parental guidance would thus in our view go against the relevant articles of CRC.”
In a general comment on the draft resolution on terrorism and human rights, the German representative stated on behalf of the European Union:
“When adopting and applying counter-terrorism measures, States must respect the right to freedom of expression online and offline, to freedom of assembly and association, as well as the prohibition of torture and ill treatment, protection against arbitrary detention and unlawful deprivation of life. The presumption of innocence, the right to fair trial and non-discrimination in the administration of justice must also be entirely upheld.
Finally, States should ensure that counter-terrorism legislation and measures do not affect civic space negatively or unduly impede humanitarian and medical activities, including by the application of existing humanitarian exemptions to sanctions, or engagement with the relevant actors.
In our view these are the elements that the Human Rights Council should be addressing through this resolution. We would have wished to see these human right protections enshrined unequivocally into the text, as current acute human rights challenges encountered in the counter-terrorism arena should be addressed more comprehensively. […]
We expect the Council to fully live up to its mandate to protect the concrete human rights and fundamental freedoms of all human beings: protect them from the negative impact of terrorism and from a possible negative impact of counterterrorism measures. These are two aspects of a single reality which need to be tackled simultaneously.”
6 October 2020
In response to a parliamentary question on the designation of zero-use zones in the North and Baltic Seas, the Federal Government stated:
“The Federal Government is unable, inter alia, due to international agreements, to designate zero-use zones. Maritime navigation, for example, is governed at the international level by the Convention on the Law of the Sea, restrictions are a matter for the International Maritime Organization (IMO).”
7 October 2020
During a joint news conference with the Turkish President in Ankara on 6 October 2020, the Prime Minister of the “Turkish Republic of Northern Cyprus” announced that the coastline of the abandoned and fenced-off town of Varosha in Cyprus would be opened to the public on 8 October 2020. During the regular government press conference the spokesperson for the Federal Government commented on this statement as follows:
“It was announced in Ankara yesterday that a stretch of beach in the Turkish military-controlled Varosha district of the city of Famagusta in Cyprus will be opened to the public. The Federal Government took note of this with regret. The status of Varosha is the subject of UN Security Council resolutions.
From the Federal Government’s point of view, this is an unnecessary and provocative step that contradicts ongoing efforts to achieve de-escalation and détente in the Eastern Mediterranean.”
7 October 2020
During question time in parliament, it was put to the Federal Government that the authorities were requiring Syrian nationals in Germany to apply for new Syrian passports. The Syrian Government charged high fees for the renewal of passports which provided a major source of income for the Syrian regime. The Parliamentary Secretary of State at the Federal Ministry of the Interior, Building and Community replied:
“Every State has the sovereign right to issue passports for its own nationals and to set fees for this service based on the international law rules of personnel sovereignty and the authority to issue passports.”
7 October 2020
In response to parliamentary questions on the use of armed drones, the Federal Government stated:
“The Federal Government categorically rejects killings that are contrary to international law. International law, as a rule, prohibits the killing of persons and permits killing only in very limited exceptional cases. The law of armed conflict, on the other hand, allows deadly attacks on combatants in compliance with certain rules of international humanitarian law.”
10 October 2020
With some 60 countries still imposing the death penalty, Federal Foreign Minister Heiko Maas issued the following statement on the occasion of the World Day Against the Death Penalty:
“The death penalty must be abolished all around the world. It is not only incompatible with our understanding of human rights, but also runs counter to the right to life.
Germany made an unequivocal decision at the end of the Second World War to remove this punishment from its legislation. After all, the risk of miscarriages of justice has been proven as has the death penalty’s lack of deterrent effect. Countries that still impose the death penalty should, at the very least, suspend their execution as a first step. Germany is working to achieve this together with its European partners in the United Nations.”
12 October 2020
During the General Debate in the First Committee of the 75th General Assembly of the United Nations, the German representative stated:
“Germany shares the conviction that existing international law, notably the UN Charter, human rights law and international humanitarian law, applies equally offline and online.”
12 October 2020
In response to a parliamentary question, the Secretary of State at the Federal Ministry of Finance, Bettina Hagedorn, stated:
“The Global Compact for Safe, Orderly and Regular Migration is not a treaty under international law and is not legally binding. Whether or not it is observed is a question of national sovereignty of the member States of the United Nations.”
14 October 2020
Commenting on the work of the International Law Commission on the topic of crimes against humanity, the German representative stated in the UN General Assembly’s Sixth Committee:
“A new Convention on the Prevention and Punishment of Crimes against Humanity would complement treaty law on core crimes and foster inter-state cooperation with regard to their investigation, prosecution and punishment. A new Convention would provide further impetus for the prevention of atrocity crimes and would represent a milestone in the common fight against impunity.
While the concept of crimes against humanity and indeed their definition are well accepted, there is – with the notable exception of the Rome Statute – no international convention on this core crime. We deem it important that all States – including those that have expressed certain reservations with regard to the ICC as an institution, would have at their disposal a legal instrument that aims at preventing and punishing crimes against humanity at the national level. The draft articles do not contain unusual or burdensome obligations for states. They rather remain within the familiar framework of international criminal cooperation.”
19 October 2020
In an explanatory note on the Agreement for the Termination of Bilateral Investment Treaties between the Member States of the European Union, the Federal Government stated:
“The termination extends to all 14 bilateral investment protection treaties which the Federal Republic of Germany has concluded with other member States of the European Union.
With this agreement, the undersigned EU member States implement the Achmea judgment of the European Court of Justice (ECJ). In this judgment, the ECJ declared the arbitration clause of the bilateral investment protection treaty between the Kingdom of the Netherlands and the Slovak Republic to be incompatible with EU law. The decision of the ECJ is applicable to the arbitration clauses in all 195 intra-EU investment protection treaties, including the 14 bilateral investment protection treaties that the Federal Republic of Germany has concluded with other member States of the European Union.”
20 October 2020
During the UN Security Council Open Debate “Maintenance of international peace and security: Comprehensive review of the situation in the Gulf region”, the German Permanent Representative to the United Nations painted a bleak picture of the situation in the wider region, saying:
“The framework for peace and security in the region already exists: it is international law; it is international humanitarian law; it is human rights law. Unfortunately, international law is violated every day in the region.
We have spoken about the Joint Comprehensive Plan of Action (JCPOA) and resolution 2231 (2015). Other Security Council resolutions in the wider Middle East are not adhered to, from the resolutions concerning the Israeli-Palestinian conflict to those concerning sanctions on Libya. International humanitarian law is violated every day. […]. Human rights are violated every day in many countries in the region. […]. Germany can only urge and continues to urge adherence to international law, the JCPoA and other international agreements.”
21 October 2020
On 19 October 2020, the “Representative of Taiwan” in Berlin attended a meeting of the Federal Parliament’s Committee on Human Rights and Humanitarian Aid which discussed the question of human rights in the digital age. Other senior Taiwanese officials, including the Digital Minister, the Deputy Minister of Foreign Affairs and the Deputy Minister of the Mainland Affairs Council also took part in the parliamentary meeting via video conference. This drew a strong rebuke from the Chinese Embassy in Berlin which, in turn, gave rise to a question in the regular government press conference where the Federal Government was asked to comment on the meeting and the Chinese reaction. A spokesperson for the Federal Foreign Office stated:
“As a matter of principle, you know our position on Taiwan. As part of its one-China policy, the Federal Government recognizes the People’s Republic of China as the only sovereign State in China. We continue to adhere to this position. In this respect, we are not changing anything in the status quo. But, as in the past, it is equally valid that within its one-China policy Germany supports Taiwan’s practical cooperation in international forums such as the World Health Organization.”
21 October 2020
During the UN Security Council Meeting on UNMIK, the German representative stated:
“The Serbian Foreign Minister always says that there are not 116 but only 92 countries recognizing Kosovo. I am surprised by this policy of trying to get countries to de-recognize Kosovo. Our Serbian friends are shooting themselves in the foot, because if they are honest about trying to join the European Union (EU), they should work very hard to see that Kosovo is recognized, and they should recognize it themselves. In the historical review we heard from the Serbian Foreign Minister, there was no mention of the advisory opinion of the International Court of Justice of 2010 (see A/64/881), which clearly stated that the declaration of independence of Kosovo did not violate international law. The logic behind this is that the country is legitimate and should be recognized.”
26 October 2020
After Honduras became the 50th country to ratify the Treaty on the Prohibition of Nuclear Weapons (TPNW) on 24 October 2020, the Treaty was to enter into force on 22 January 2021. During the regular government press conference, the Federal Government was asked when it planned to accede to the Treaty. The cabinet spokesperson replied:
“The Treaty on the Prohibition of Nuclear Weapons […] aims to prohibit the development, production, testing, acquisition, stockpiling, transport, stationing and use of nuclear weapons.
We have frequently set out our position on the situation of nuclear armament. The situation in the world paints a different picture than the Treaty on the Prohibition of Nuclear Weapons. We firmly believe that we must not turn a blind eye to the fact that some States continue to view nuclear weapons as a means of military conflict. As long as that is the case and Germany and Europe are also threatened by nuclear weapons, we believe that there is a need to maintain a nuclear deterrent. NATO does this for us. The Federal Government continues to be fully committed and completely committed to the defensive nuclear strategy of NATO. Against this background, Germany has not joined the Treaty on the Prohibition of Nuclear Weapons.”
26 October 2020
In response to a parliamentary question on the compatibility of measures taken in response to the corona pandemic with the European Convention on Human Rights, the Federal Government stated:
“The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights / ECHR) has been incorporated into the German legal system by means of a ratification law as an international treaty ratified by the Federal Republic of Germany. It must therefore be observed by all German government authorities. This also applies to the measures taken by these authorities to combat the corona pandemic.
The measures taken so far in Germany and in other ECHR member States to combat the corona pandemic may constitute interference with the rights of the ECHR. However, these rights often provide for the possibility of restricting them in order to protect health and public safety, as long as the measures are proportionate and are prescribed by law. The European Court of Human Rights is ultimately responsible for examining in each individual case whether certain measures are compatible with the ECHR.”
28 October 2020
In response to parliamentary questions on the duty to render assistance to persons found at sea in danger of being lost, the Federal Government stated:
“According to international treaty law and customary international law, there is an obligation for every master of a ship to render assistance as fast as possible to all persons in distress at sea, if informed of their need of assistance, in so far as he can do so without serious danger to the ship, the crew or the passengers. This obligation is irrespective of the nationality of the legal status of such persons or the circumstances in which they are found. This obligation was explicitly included, for example, in Article 98 of the United Nations Convention on the Law of the Sea of 1982 and can also be found in other international conventions.”
“In certain situations, government authorities may also be bound by their human rights obligations beyond their territorial waters, provided that they exercise effective jurisdiction there.”
“International law provides for a general obligation of all coastal States to delimit, in consultation with neighbouring States, national areas of responsibility for maritime rescue and to ensure in these areas the establishment, use and maintenance of an appropriate and effective search and rescue service.”
28 October 2020
During a parliamentary debate on the motion “War crimes and human rights violations must not go unpunished”, Federal Foreign Minister Heiko Maas stated, inter alia:
“Human rights and international law are regularly trampled underfoot by governments, armed groups and terrorists alike. Let me be quite frank: far too often, these crimes remain unpunished.
This is partly because three permanent members of the Security Council – the U.S., China and Russia – still do not recognise the International Criminal Court. In a very recent development, Washington has taken the step of imposing sanctions on representatives of the International Criminal Court. This would have been unthinkable just a few years ago, and is unquestionably a grave error that I hope will be rectified in due course. […].
Internationally, we are among the most active supporters of the International Criminal Court – politically, in terms of staffing, and also financially. We are equally supportive of the Special Tribunals, such as those for Lebanon and Kosovo.”
29 October 2020
During the UN Security Council meeting on the Minister of State at the Federal Foreign Office of Germany, Michelle Müntefering, stated:
“We initiated resolution 2467 (2019) to strengthen the rights of all survivors of sexual violence and to hold perpetrators accountable. Survivors’ human rights, including sexual and reproductive health and rights, must be guaranteed.”
Category: International law in general
DOI: 10.17176/20220627-173104-0
