Notable statements on international law during February 2021

Published: 27 April 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.

5 February 2021

On 3 February 2021, the Ukrainian President signed decrees banning several pro-Russian media outlets for five years. The presidential spokesperson explained that these “media have become one of the tools of war against Ukraine, so they are blocked in order to protect national security.” Asked about the ban, a spokesperson for the Federal Foreign Office explained that the German position was in line with that of the European Union, saying:

“It is legitimate for Ukraine to protect its territorial integrity and national security and to defend itself from manipulated information given the scale of disinformation campaigns in the country. This should not come at the expense of fundamental rights and freedoms and should be done in accordance with international standards and be proportionate to the aim to be achieved.”

10 February 2021

During a debate in the Federal Parliament on the consequences which the Federal Government was drawing from the most recent violent, arbitrary and repressive developments in Russia, Federal Foreign Minister Heiko Maas stated with regard to sanctions to be imposed on Russia:

“First, sanctions must always be linked to clear demands for a change in behaviour that can actually be fulfilled. And even if no changes in behaviour can be expected, sanctions can also be a statement not to accept certain behavioural patterns without consequences. That was the case with our reaction to the annexation of Crimea and the Russian action in eastern Ukraine, and it must be the case now [with regard to Russia’s treatment of political opposition figures and demonstrators].

Second, sanctions must be targeted at the right people. In this case, these are those who are responsible for the repressive actions of the State against its own citizens.”

10 February 2021

In response to a parliamentary question concerning the Treaty on the Prohibition of Nuclear Weapons (TPNW) the State Secretary at the Federal Foreign Office, Antje Leendertse, stated:

“Article 3 (1) of the Treaty on the Prohibition of Nuclear Weapons (TPNW) provides that each State Party, which was not a nuclear weapons State within the meaning of Article 4 (1) or (2) at the time of accession, shall, at a minimum, maintain its International Atomic Energy Agency (IAEA) safeguards obligations in force at the time of entry into force of the TPNW, without prejudice to any additional relevant instruments that it may adopt in the future. This means that for those States Parties to the TPNW which had already concluded an additional protocol with the IAEA at the time the TPNW entered into force, this protocol will continue to apply.

However, for the States Parties to the TPNW that had not yet concluded an additional protocol with the IAEA when it entered into force, neither Article 3 (1) nor any other reference in the TPNW provides encouragement or an obligation under international law to conclude such an additional protocol with the IAEA. Article 3 (1) of the TPNW merely states that additional agreements may be concluded by these States Parties in the future. Article 3 (2) of the TPNW only obliges the States Parties to the TPNW that have not yet done so to conclude a so-called Comprehensive Safeguards Agreement (CSA) with the IAEA, which shall enter into force for the State Party in question no later than 18 months from the entry into force of the TPNW.

The CSA forms an important basis for the IAEA’s inspection rights with regard to sites and facilities that have already been declared by the relevant State Party. But only the additional protocol grants the IAEA the extended access and inspection rights with regard to undeclared sites and facilities which are desirable from a non-proliferation policy point of view. In close coordination with other like-minded member States of the European Union and the IAEA, the Federal Government is therefore continuing to advocate the universalization of the IAEA additional protocol – for example, by participating in targeted joint demarches in the run-up to the 10th Review Conference of the Treaty on the Non-Proliferation of Nuclear weapons (NPT).”

10 February 2021

In response to a parliamentary question on the Federal Government’s position with regard to the inclusion of the crime of “ecocide” in the Rome Statute of the International Criminal Court, the State Secretary at the Federal Foreign Office, Antje Leendertse, stated:

“In principle, the Federal Government welcomes demands as indicated in the question. However, a legal technical implementation is demanding with a view to the questions of causation and intent, which have to be clarified in a system geared towards judicial processing of individual cases.”

11 February 2021

Germany joined current and former European members of the UN Security Council in a statement on Ukraine which read in part:

“We […] fully support the independence, sovereignty and territorial integrity of Ukraine within its internationally recognized borders. […]

Respect for the territorial integrity of any State and the prohibition of the use of force are fundamental principles of international law. These two principles are clearly stated in the UN Charter as well as in the Helsinki Final Act. By the use of force against the territorial integrity and sovereignty of Ukraine, Russia is clearly violating fundamental principles of international law. […]

We again call on the Russian Federation to immediately stop fuelling the conflict by providing financial and military support to the armed formations it backs, and we remain deeply concerned about the presence of Russian military equipment and personnel in the Non-Government Controlled Areas of Ukraine. […].”

11 February 2021

During a UN Security Council meeting on Ukraine, Germany’s Permanent Representative to the United Nations, Ambassador Christoph Heusgen, called Russia to account for its actions in Ukraine, making it clear that Germany considered the eastern Ukrainian regions of Luhansk and Donetsk as Russian “occupied territories” and the separatists there as “puppet regimes”. He stated:

“On December 19, 1994, the then Russian Permanent Representative, Sergei Lawrow [sic], asked the President of the Security Council to register the so-called Budapest Memorandum as a document of the Security Council.

The first paragraph reads: ‘The Russian Federation reaffirms its commitment to respect the independence and sovereignty and the existing borders of Ukraine.’ Ukraine at the time trusted the Russian commitment and gave up its nuclear arsenal that was stationed on its soil. 20 years later, Ukraine had to pay a very high price for the good faith it had in the Budapest Memorandum and in Russia: Russia invaded Crimea and Eastern Ukraine. It was staged by Russia as an internal uprising. But we know from President Putin himself, who decorated the Russian soldiers who participated in the assault, that these indeed were Russians who invaded Crimea and Eastern Ukraine. […]

I also would like to recall the saddest moment in the Russian assault of Ukraine: July 17, 2014: the downing of flight MH17 when 300 people died. At the time, the Russian military commander on the field, Mr. Igor Girkin, went public and rejoiced about the downing of the plane, which he thought was a Ukrainian plane. Mr. Girkin still lives in freedom in Russia instead of standing trial in The Hague, where the families of the victims are asking for accountability for this horrible attack on flight MH17. […]

Until today, they are Russian forces in Eastern Ukraine. They may not have the official stamp of the Russian army, but the Russians continue to be there, and without Russia, Luhansk and Donetsk could not survive. […]

[…] I always have the impression it was Ukraine that invaded Russia and not the other way around: that Russia in fact invaded Ukraine. […]

[…] Russia should stop to issue Russian passports in large numbers to Ukrainian nationals. This clearly contradicts the spirit of the Minsk agreements, but is also a violation of international law.

Unfortunately, the way that Russia behaves in Ukraine is part of a pattern that we regularly see here in the Security Council, the disrespect for international law and international humanitarian law. We see this in Syria with the backing of the murderous Assad regime, the undermining of the Chemical Weapons Convention, the bombing of hospitals, the militias that are stationed in Libya, and we have seen the poisoning of Mr. Skripal and Mr. Navalny.

Let me end with a recent quote by Chancellor Merkel on the latest Russian move. She said: ‘We are witnessing another facet of Russia’s detachment from the rule of law.’”

16 February 2021

During the Intergovernmental Negotiations (IGN) on Security Council Reform the German Deputy Permanent Representative to the United Nations stated with regard to the categories of membership of the Security Council and the veto right of permanent members of the Council:

“Germany believes there should be two categories of membership, namely permanent and non-permanent members. On the veto, Germany holds that it can be, and very often indeed is a hindrance to addressing global challenges head-on and in unison. We see ample evidence of this in the Council every day. However, its existence was essential for creating the necessary buy-in of the post-war great powers. Completely withholding this right from future permanent members would result in the creation of a third category of members.

It goes without saying that current – and future – permanent members would be free to decide to never use the veto, especially when grave human rights abuses are at stake. Some current permanent members have been doing that for years, and they have thus shown that they are truly responsible members of the international community. Germany has long been a supporter of pertinent veto restraint initiatives.”

16 February 2021

During the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, the representative of the European Union delivered a statement on behalf of EU Member States, including Germany, on the maintenance of international peace and security, stating:

“The Charter of the United Nations is the Constitution of nations. By making the maintenance of international peace and security one of the main purposes of the United Nations, its founders pledged to make the world a safer place. We believe that sanctions are part of the toolbox to be used in order to maintain and achieve international peace and security.

Sanctions measures must be implemented in full compliance with international law, in particular international refugee law, international humanitarian law and international human rights law, by ensuring that sanctions procedures are fair and clear and respect the rights of listed persons, including due process rights. In this regard, we underline the important role of the Ombudsperson to the ISIL (Da’esh) and Al-Qaida sanctions Committee and the need for the United Nations Security Council to enhance its due process standards in the implementation of all sanctions regimes. If UN sanctions do not comply with due process standards their effectiveness is put at risk at the national and regional level. It is key that sanctions are fully implemented by all Members in order to avoid a fragmented implementation.

It is equally crucial to avoid any unintended negative impact of counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in full compliance with humanitarian principles and international humanitarian law. The EU reaffirms its continued commitment to preserving the humanitarian space, including inter alia through the development of best practices, the provision of guidance and the adoption of appropriate mitigating measures.

For the EU, sanctions are part of a comprehensive policy approach and aim to promote international peace and security, respect for human rights, democracy, the rule of law and good governance. EU sanctions comply with EU and international law. They support efforts to fight the proliferation of weapons of mass destruction, including chemical weapons, repressive policies against the civilian populations, terrorism or the threat of cyber-attacks. EU sanctions are targeted to those responsible for human rights abuses, for breaches of international law, flows of arms into war zones, and spoilers of peace processes. The targeted nature of sanctions aims to reduce as much as possible any adverse humanitarian effects or unintended consequences for persons not targeted, in particular the civilian population or the neighbouring countries. In addition, EU sanctions regimes provide for exceptions, which include, when appropriate, provisions facilitating the delivery of humanitarian aid. […].”

17 February 2021

During the meeting of the Working Group of the Whole of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, the representative of the European Union delivered a statement on behalf of EU Member States, including Germany, on the peaceful settlement of disputes. Commenting on the advantages and limitations of arbitration as a peaceful means of dispute settlement, the EU representative stated:

“Recourse to arbitration might not be appropriate for the resolution of all types of disputes. The EU and its Member States consider that the use of arbitration has proven inadequate for handling disputes arising under investment treaties, and prefer instead to establish a permanent multilateral investment court within the framework of the United Nations Commission on International Trade Law (UNCITRAL). That would address the particular challenges that derive from the decentralised structure of arbitration and that can lead to inconsistent or conflicting decisions. The court – to be composed of a first instance and an appeal tribunal staffed by full-time adjudicators – would be empowered to hear disputes over investments between investors and States that will have accepted its jurisdiction over their bilateral investment treaties. It will ensure predictability, transparency and cost-effectiveness to the resolution of investment disputes. Such multilateral mechanism for settling investment disputes is in line with the EU approach to settling international disputes more generally, which favours multilateral solutions and reform over bilateral approaches.”

18 February 2021

In an interview with the Norwegian publication Bistandsaktuelt, Germany’s Permanent Representative to the United Nations, Ambassador Christoph Heusgen, talked about the country’s two-year term on the UN Security Council, stating:

“During Germany’s two years in the Security Council, it was not only Russia and China that were often in violation of international law. Respect for the United Nations and resolutions that had been previously adopted by the Security Council was not a very high priority for the former US administration, to say the least. […].

We stand up for our values, and we see that Russia and China very actively have been trying to undercut human rights and create their own narrative.

When it comes to Syria, Russia is a strong supporter of Bashar al-Assad, meaning a strong supporter of a regime that uses chemical weapons against its own population, and imprisons, tortures and kills hundreds of thousands. In this situation, you have to speak up. Germany was very clear and called a spade a spade.

When you attack China on their treatment of the Uyghur minority, in which hundreds of thousands are put in detention camps or used for forced labour, you have to speak out. When human rights violations are at such high levels, and when for instance Russia is undercutting the chemical weapons convention, you have to speak up. […].

Russia and China are always referring to the sovereignty of Syria. That is their tactic. They don’t care about the Universal Declaration of Human Rights and the Geneva Conventions.”

19 February 2021

The United States’ Protecting Europe’s Energy Security Act of 2019, as amended on 1 January 2021, authorised the U.S. administration to impose sanctions, inter alia, on German and other European companies involved in the Nord Stream 2 gas pipeline project. In response to parliamentary questions, the Federal Government reiterated its objection to these sanctions, stating:

“The Federal Government rejects these sanctions as an interference with European sovereignty. […]

The attitude of individual EU Member States to Nord Stream 2 differs. The Federal Government does not judge this. However, there is agreement on the rejection of interventions by third countries that are contrary to international law.”

19 February 2021

On 20 August 2020, U.S. Secretary of State Michael R. Pompeo sent a letter to the President of the UN Security Council notifying the Security Council that the United States believed Iran to be in significant non-performance of its commitments under the Joint Comprehensive Plan of Action (JCPoA), thereby trying to trigger the reimposition of sanctions against that country under UN Security Council resolution 2231 (2015). Germany and the other participants of the JCPoA, as well as the overwhelming majority of members of the Security Council, considered the U.S. move to trigger the so-called “snapback mechanism” under resolution 2231 (2015) to be devoid of any legal effect as the United States had ceased to be a participant of the JCPoA and thus could no longer exercise rights of JCPoA “participants”. On 18 February 2021, the new U.S. administration under President Joseph Biden withdrew the former notification and declared that it considered the sanctions terminated by resolution 2231 (2015) to remain terminated. Commenting on this development, the spokesperson for the Federal Foreign Office stated:

“The United States has also notified the Security Council that it no longer adheres to the attempt by the former Trump administration to trigger the ‘snapback’ and is thus officially withdrawing it. The United States thereby affirms that Security Council resolution 2231, which endorses the JCPOA and which is also the foundation of the nuclear agreement, is fully in force. That was always the legal opinion of the European parties to this agreement, and this opinion is now shared by the United States.”

19 February 2021

On 10 February 2021, Turkey started Operation Claw-Eagle 2, a military operation against positions of the Kurdistan Workers’ Party in northern Iraq. In a parliamentary question the Federal Government was asked about the legality of the operation in terms of international law. The State Secretary at the Federal Foreign Office, Miguel Berger, answered as follows:

“The Turkish armed forces have been conducting a military operation in the northern Iraqi region of Gara since 10 February 2021 which, according to the Turkish Ministry of National Defence, is directed against positions of the Kurdistan Workers’ Party (PKK) located there. As with previous military operations against the PKK in Iraq, Turkey invokes the right of self-defence under Article 51 of the Charter of the United Nations and resolutions of the United Nations Security Council on combatting international terrorism. The PKK is listed as a terrorist organization in the European Union too. The Federal Government has also shown understanding that the Iraqi Government has repeatedly called on the Turkish Government to respect Iraq’s sovereignty. […] The Federal Government does not have sufficient knowledge to the facts in order to provide an international law assessment of the Turkish military operation.”

In response to another parliamentary question, the Federal Government repeated the above statement and added:

“The conduct of the military operation, however, must be proportionate and must not further jeopardize the stability of Iraq. The Federal Government has shown understanding that the Iraqi Government has repeatedly called on the Turkish Government to respect Iraq’s sovereignty.”

22 February 2021

During the 46th session of the United Nations Human Rights Council, Federal Foreign Minister Heiko Maas stated:

“[…] We continue advocating a closer link between the Human Rights Council and the Security Council. Sustainable peace depends on respect for human Rights. […]

Different cultural backgrounds or national perspectives cannot be an excuse for Member States to hamper the Council’s work. ‘All human beings are born free and equal in dignity and rights.’ Every state, especially those elected to this Council, is bound to defend this commitment – and the other 29 articles of the Universal Declaration of Human Rights. […].”

23 February 2021

During the open debate of the Security Council on Climate and Security, Federal Foreign Minister Heiko Maas stated on behalf of the 54 members of the Group of Friends on Climate and Security:

“‘Climate and security’ belongs [sic] firmly on the Security Council agenda, reflecting the Council’s ‘primary responsibility for […] international peace and security’.”

24 February 2021

In a tweet Germany’s mission to the United Nations wrote:

“The situation in Xinjiang is one of the gravest violations of HumanRights, w/ hundreds of thousands of Uyghurs being kept in detention camps.”

It is interesting to note, however, that the statement of Germany’s representative during the UN General Assembly meeting on the Secretary-General’s “Call to Action for Human Rights” of the same day was much more diplomatic: “When you compare reports about human rights violations around the world today, the situation in Xinjiang stands out. There are reports about hundreds of thousands of people of the Uyghur Muslim minority being kept in detention camps. There are reports about massive forced labour, systematic rape, forced sterilization of women, and destruction of the cultural heritage of Muslim minorities. These reports need verification.”

24 February 2021

During the regular government press conference, the cabinet spokesperson stated with regard to U.S. sanctions against companies involved in building the Nord Stream 2 gas pipeline:

“Our position on the subject of extraterritorial sanctions is well known. We object to them. We have raised this with the U.S. government and will continue to do so.”

24 February 2021

In a parliamentary question the Federal Government was asked to comment on the preliminary findings of the UN Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, Ms. Alena Douhan, that the sanctions imposed on Venezuela had negative impacts on the humanitarian situation in the country. The Federal Government replied:

“As a result of the unfair and unfree parliamentary elections in Venezuela, the European Union imposed new sanctions against 19 members of the Maduro regime on 22 February [2021].

With these individual sanctions, the EU wants to induce the sanctioned persons to change their behaviour. The sanctions are directed against individuals and, like previous EU sanctions since 2017, are designed in such a way that they do not have any negative economic and social effects on the Venezuelan population. The Federal Government believes that the main causes of the catastrophic humanitarian situation in Venezuela are corruption, mismanagement, and human rights violations by the Maduro regime.

In principle, the Federal Government welcomes the investigation by the United Nations Special Rapporteur into the possible negative effects of sanctions. The preliminary report mentioned in the question, however, does not differentiate between sanctions against individuals and sectoral economic sanctions, for example in the oil sector, and in this respect, in the view of the Federal Government, is not sufficiently precise.”

24 February 2021

In response to a parliamentary question the Federal Government commented on the human rights situation in Iran as follows:

“According to the Federal Government, the human rights situation in Iran is very problematic. Personal and political freedoms are severely restricted. Opposition members and human rights defenders are often victims of State repression, for example in the form of repeated arrests or the imposition of professional bans.

With 233 executions in 2020, Iran is the country with the highest number of executions in the world by population. The rights of defendant are disregarded, and procedural principles based on the rule of law, such as the free choice of counsel, are often not observed.”

26 February 2021

Germany joined several current and former members of the UN Security Council in a statement in the situation in the Middle East which read in part:

“We are deeply concerned at the recent repeated demolitions and confiscation of items, including of EU and donor funded structures carried out by Israeli authorities at Humsa Al-Baqai’a in the Jordan Valley, as well as at its impact on its community of approximately 70 people, including 41 children. These large-scale demolitions and confiscations confirm once again the regrettable trend of demolitions and confiscations since the beginning of 2020. We reiterate our call on Israel to halt demolitions and confiscations. We further call on Israel to allow full, sustained and unimpeded humanitarian access to the community in Humsa Al-Baqai’a. We recall our firm opposition to Israel’s settlement policy and actions taken in that context, such as forced transfers, evictions, demolitions and confiscations of homes and humanitarian assets, which are illegal under international law, including the Fourth Geneva Convention, and are an impediment to a viable two-state solution.”

26 February 2021

On 22 February 2021, the European Union imposed further sanctions against 19 members of the Maduro Government in Venezuela. Asked about the legality of these sanctions in terms of international law, the spokesperson for the Federal Foreign Office stated:

“The European Union has sanctions regimes on a number of different subjects. It also has its own human rights sanctions regime that has now been created. In this respect, the EU operates in its own sanction regimes which it creates and which, in our view, are of course not in violation of international law.”

26 February 2021

During the regular government press conference, the Federal Government was asked to comment on the limited provision of vaccines to Palestinians by Israel despite its obligations as an occupying power under the Fourth Geneva Convention. In this context, the spokesperson for the Federal Foreign Office confirmed that the Federal Government recognizes that Israel, as the occupying power, is responsible for the Palestinians in the West Bank and Gaza.

26 February 2021

Despite being pressed several times by members of the media, the deputy cabinet spokesperson and the spokesperson for the Federal Foreign Office avoided expressing any view of the Federal Government on the U.S. air strikes against pro-Iranian militias in Syria on 25 February 2021 by simply reporting the official U.S. Government position of self-defence and stating:

“There is also a statement by the Pentagon in which the U.S. side refers to ‘defensive strike’, the right to self-defence. In this respect, this is a statement that we have from the United States on the subject of international law and which we take note of.”

Category: International law in general

 

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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