Published: 07 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.
6 January 2021
On 20 December 2020, elections were held in Venezuela for the National Assembly which were largely boycotted by the opposition. The party of President Nicolas Maduro and its allies won 91 per cent of the seats. The newly elected Assembly assumed its mandate on 5 January 2021. In a declaration, the European Union (EU) considered that “the elections failed to comply with the international standards for a credible process and to mobilise the Venezuelan people to participate.” It stated that the lack of political pluralism and the way the elections were planned and executed, including the disqualification of opposition leaders, did “not allow the EU to recognise this electoral process as credible, inclusive or transparent, nor [did] they allow its outcome to be considered as representative of the democratic will of the Venezuelan people.” On 6 January 2021, the spokesperson for the Federal Foreign Office endorsed the EU declaration and stated:
“[W]e do not recognize the election result and continue to regard the Parliament, which began its work yesterday, as illegitimate. The parliamentary elections in December were neither free nor fair, nor did they meet minimum international standards, nor was the electoral process inclusive.”
8 January 2021
On 6 January 2021, the European Union (EU) issued a declaration on the situation following the elections for the National Assembly on 6 December 2020. In the declaration it was stated that the EU would “maintain its engagement with all political and civil society actors striving to bring back democracy to Venezuela, including in particular Juan Guaidó and other representatives of the outgoing National Assembly elected in 2015”. The fact that the EU did not expressly refer to Juan Guaidó as “interim president” and, unlike the United States, did not confirm his continued recognition as the legitimate President of Venezuela, was widely interpreted as the EU no longer according such recognition. Asked whether the EU and Germany still recognized Juan Guaidó as “interim president”, a spokesperson for the Federal Foreign Office avoided a clear answer and stated instead that the Federal Government was in consultations with its European partners on this question, and that there was not such a great difference between the present statement and pervious EU statements on Venezuela. In fact, the EU, unlike some of its member States like Germany, had never recognized Juan Guaidó “as legitimate interim President of Venezuela” but referred to him only “as President of the National Assembly”.
11 January 2021
In a joint statement on the Middle East Peace Process, the Foreign Ministers of Egypt, France, Germany and Jordan reiterated
“the call for the implementation of the UN Security Council resolutions to immediately and completely cease all settlement activities including in East Jerusalem. They also concurred that the building and expansion of settlements, and confiscation of Palestinian structures and properties are a violation of international law that undermine the viability of the two-state solution. Furthermore, they stressed the importance of the adherence to international humanitarian law in the Palestinian territories occupied in 1967, including East Jerusalem.”
12 January 2021
In response to a parliamentary question concerning Nagorno-Karabakh, the State Secretary at the Federal Foreign Office, Miguel Berger, stated:
“The Federal Government condemns the use of force in this conflict […]. In the opinion of the Federal Government, the conflict between Armenia and Azerbaijan over the Nagorno-Karabakh region is an inter-State conflict in which historical and international law issues are intertwined in a complex way.”
The State Secretary did not respond to the question of whether the Federal Government agreed that, in the long term, only observance of the peoples’ right to self-determination could lead to sustainable peace in the region.
15 January 2021
In a parliamentary question the Federal Government was asked what changes it intended to make to the Consular Act to allow German consular officers to provide consular assistance to foreign nationals who were ordinarily resident in Germany. The Federal Government replied that international agreements and practices imposed certain limits to what changes to the German Consular Law could be made, stating:
“In particular, the VCCR [Vienna Convention on Consular Relations] must be mentioned here, which provides the framework for any consular activity of the sending State that must be tolerated by the receiving State. With regard to the possibilities of consular protection and assistance provided. the VCCR basically focuses on nationality and not on ordinary residence.”
18 January 2021
On 17 January 2021, the Israeli authorities approved plans to build 780 housing units in the occupied Palestinian territories in the West Bank. The next day, a spokesperson for the Federal Foreign Office issued the following statement:
“The Federal Government is very concerned about the approval of 780 new housing units in Israeli settlements in the West Bank. Moving ahead with the construction of settlements is in violation of international law and of relevant United Nations Security Council resolutions. It makes a negotiated two-state solution and an end to the occupation more difficult. […]
The Federal Government reiterates that amendments to the lines of 4 June 1967, including those with regard to Jerusalem, can only be agreed by both parties through negotiations. […].”
19 January 2021
The Federal Government was asked for its assessment of the confrontational boarding of the Turkish freighter “Roseline A” by the German navy frigate “Hamburg” as part of the European Union military operation in the Mediterranean (EUNAVFOR MED IRINI). The Parliamentary Secretary of State at the Federal Ministry of Defence, Peter Tauber, replied:
“On 22 November 2020, the frigate “Hamburg” carried out a mandate-compliant inspection of the Turkish-flagged container ship “Roseline A” after Turkey had not objected to a request by the Operation within the period stipulated in the rules of engagement. When Turkey in its capacity as flag State objected to the inspection after it had already begun, the inspection was suspended immediately. By the time the inspection was suspended, no indications of a violation of the United Nations arms embargo against Libya had been found.
The Federal Government considers this event as implementation of the mandated tasks of and by EUNAVOR MED IRINI in accordance with international law and as a contribution to the implementation of the UN arms embargo and the promotion of the Berlin Process for the stabilization of Libya.”
20 January 2021
In response to a parliamentary question concerning the involvement of German company HeidelbergCement in the planned expansion of the Nahal Raba quarry in the Israeli occupied West Bank, the State Secretary at the Federal Foreign Office, Miguel Berger, stated:
“The Federal Government appropriately draws German companies’ attention to the status of Israeli settlements in the occupied territories under international law, the relevant resolutions of the United Nations Security Council and the associated risks.
In the view of the Federal Government, the Israeli settlement construction violates international law and represents an obstacle to the peace process. It observes the expansion of infrastructure networks in the occupied territories, which are not freely accessible to the Palestinian population, with great concern.”
20 January 2021
In response to a parliamentary question on the Alliance for Multilateralism, the State Secretary at the Federal Foreign Office, Antje Leendertse, stated:
“The Alliance for Multilateralism is an instrument to defend, adapt and, where necessary, reform the rules-based international order, multilateral cooperation and its institutions.
Since its inception, the Alliance for Multilateralism has developed into a broad network of States from all regions of the world that provides impetus and forms coalitions in order to promote multilateral cooperation in the long run, including on new topics. This commitment to strong international institutions remains essential.
The alliance is open to all States that are convinced of the added value multilateral action can provide and share the principles of the alliance.”
21 January 2021
On 29 May 2020, the World Health Organization (WHO), in partnership with the Government of Costa Rica and 40 WHO Member State, launched the COVID-19 Technology Access Pool (C-TAP), a global initiative aimed at making knowledge, intellectual property and data necessary to fight COVID-19 accessible to all. In response to the question of whether the Federal Government considered joining C-TAP, the Parliamentary Secretary of Sate at the Federal Ministry of Health, Sabine Weiss, stated:
“The Federal Government advocates a multilateral response to the pandemic and a strengthening of the responsible international organisations (especially the WHO). The Federal Government has committed itself to fair access to vaccines worldwide as a global public good and supports the ACT-Accelerator Platform (ACT-A) launched by the WHO in April 2020, whose aim it is to ensure the development, production and fair access for all to COVID-19 vaccines, drugs and diagnostics and to strengthen health systems.”
25 January 2021
In response to a parliamentary question on the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), the Parliamentary Secretary of State at the Federal Ministry of Justice and Consumer Protection, Christian Lange, declared:
“The Convention does not require the right to free psychological counselling during legal proceedings to be extended to all victims of gender-based and domestic violence.”
26 January 2021
In response to a parliamentary question on the Istanbul Convention, the Parliamentary Secretary of State at the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, Caren Marks, declared:
“In the view of the Federal Government, measures to prevent and combat digital violence against women and girls form an integral part of the implementation of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).”
26 January 2021
In a parliamentary question, the Federal Government was asked what measures it took to protect LGBTQI* (lesbian, gay, bisexual, transgender, queer, and intersex persons) against gender-based violence in order to implement the Istanbul Convention which in Article 12 expressly obliged States to take into account the specific needs of “vulnerable persons” which also included “homosexuals, bisexuals and transsexuals”. The Federal Government did not address the fact that the Convention does not speak of “vulnerable persons” and that there is also no mention of “homosexuals, bisexuals and transsexuals”. The Convention, which expressly applies only to “all forms of violence against women”, requires States to “take into account and address the specific needs of persons made vulnerable by particular circumstances and shall place the human rights of all victims at their centre” when taking “measures to prevent all forms of violence covered by the scope of this Convention” (Article 12(3)). Nevertheless, the Parliamentary Secretary of State at the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, Caren Marks, declared:
“The Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) obliges all levels of government – federal, state and local authorities – to take the necessary measures within their competence to promote and protect the rights of every person, especially women, to live free from violence in the public as well as in the private sphere. The implementation of the Convention must be secured without discrimination, in particular on the ground of biological and social gender, sexual orientation, or gender identity.”
The Federal Government was also asked which statistical data on violence against LGBTIQ* was available to it in order to collect and analyse cases of gender-based violence that particularly affect LGBTIQ*, and so to fulfil the obligation under Article 11 of the Istanbul Convention to “collect disaggregated relevant statistical data at regular intervals on cases of all forms of violence covered by the scope of this Convention”. Again, the Federal Government did not address the fact that the Convention applies only to “all forms of violence against women” (Article 2(1)). In addition, “Parties are encouraged to apply this Convention to all victims of domestic violence” (Article 2(2)). The Convention thus does not apply to all “violence against LGBTIQ*”. States are encouraged, on a voluntary basis, to apply the Convention also to other victims of “domestic violence”, including domestic violence against LGBTIQ*. Nevertheless, the Parliamentary Secretary of State at the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, Caren Marks, declared:
“The relevant criminal offenses are recorded in the Criminal Investigation Registration Service – Politically Motivated Criminality (KPMD-PMK). The Federal Government is thereby complying with the requirements of the Istanbul Convention.”
26 January 2021
Germany joined Belgium, Estonia, France, and Ireland in a statement on the situation in the Middle East which read in part as follows:
“We are deeply concerned at the recent announcements by Israel on settlements.
Israel’s latest decisions to advance plans for the approval and construction of thousands of settlement units in the West Bank and East-Jerusalem, including in Givat Hamatos, are contrary to international law.
We call on the government of Israel to reverse these negative decisions at this critical and sensitive time and to halt all continued settlement expansion, including in East Jerusalem and sensitive areas such as Har Homa, Givat Hamatos and E1 as well as demolitions, including of EU/donor funded-structures, and to dismantle outposts erected since 2001.
[…] As stated consistently, we will not recognise any changes to the pre-1967 borders, including with regard to Jerusalem, other than those agreed by the parties.”
26 January 2021
During the KAS Expert Dialogue on the Peace Process in Libya Germany’s Deputy Permanent Representative to the United Nations stated:
“[W]e initiated Security Council Resolution 2510 to endorse the outcome of the Berlin Conference, making it binding international law.”
This assertion had been made before but did not become any more correct by its repetition.
26 January 2021
Germany’s Federal Foreign Minister joined the Foreign Ministers of the other G7 States in a joint statement on the arrest of Alexey Navalny and the protests in Russia which read in part:
“We are also deeply concerned by the detention of thousands of peaceful protesters and journalists, and call upon Russia to adhere to its national and international obligations and release those detained arbitrarily for exercising their right of peaceful assembly on 23 January. […] . Russia is bound by its national and international obligations to respect and ensure human rights. […] We urge Russia to fulfil its obligations under the International Covenant on Civil and Political Rights and to guarantee the rights it sets forth, including the right to freedom of expression, to all individuals within its territory and jurisdiction.”
26 January 2021
During his opening statement in the plenary session of the Parliamentary Assembly of the Council of Europe, Federal Foreign Minister Heiko Maas said:
“All Council of Europe Member States must abide by final judgments of the European Court of Human Rights. National rules provide no justification for only implementing these judgments in part or not implementing them at all and thereby breaching international law.”
26 January 2021
During the first part of the 2021 Ordinary Session of the Parliamentary Assembly of the Council of Europe, Polish MP Arkadiusz Mularczyk asked the German Federal Foreign Minister as Chair of the Committee of Ministers of the Council of Europe about the possibility of Polish victims of World War II to pursue court claims for compensation against Germany. In his written answer, Federal Foreign Minister Heiko Maas stated:
“In reparation for war damage, international humanitarian law only provides for claims between States, not reparation claims by individuals. The individual State is responsible for passing on the compensation it has achieved to its citizens in an appropriate form. This system of State compensation has proved effective. It has made lasting and stable peace agreements possible. With regard to the Second World War, the question of reparation and thus also the individual compensation of bodily harm and financial loss as a general consequence of war has been settled both legally and politically.”
27 January 2021
In a parliamentary question, the Federal Government was asked:
“To what extent is the Federal Government aware that the additional tools for verification provided by the Additional Protocol of the International Atomic Energy Agency (IAEA) are based neither on an international legal obligation under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) nor on a customary law consolidation of the non-proliferation regime but are based exclusively on the voluntary agreement of the NPT States. In addition – to the Federal Government’s knowledge – to what extent are the applicable verification provisions known as “enhanced verification standard”, which are not laid down as specific safeguards measures in the text of the NPT, the result of the NPT verification regime which has been continuously developed and differentiated under the auspices of the IAEA, so that the verification standards laid down in the Treaty on the Prohibition of Nuclear Weapons are at least at the level of the NPT?”
The Minister of State at the Federal Foreign Office, Michael Roth, replied as follows:
“In Article 3 (1) of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be concluded with the International Atomic Energy Agency (IAEA) in accordance with the Agency’s Statute and safeguards system. The purpose of these safeguards is to prevent nuclear energy from being diverted from peaceful uses to nuclear weapons or other nuclear explosive devices.
In the Federal Government’s opinion, the NPT does nor prescribe a particular treaty with its safeguards requirements but refers to the safeguards system of the IAEA. When the NPT negotiations were concluded in 1968, this system was still at the beginning of its development. The IAEA Additional Protocol has been part of the safeguards system since 1997. The implementation of the Safeguards Agreements and the Additional Protocol thereto is legally binding for the States that have concluded them and brought them into force.
In 2010 the NPT Review Conference stated in its Final Document that a ‘Comprehensive Safeguards Agreement’ guarantees only to a limited extent the verification required to achieve the safeguards objectives of the NPT. It has therefore noted the ‘enhanced verification standard’ made up of the ‘Comprehensive Safeguards Agreement’ and the Additional Protocol and encouraged all States without an Additional Protocol to conclude and bring into force such a Protocol.
The Federal Government believes that the Treaty on the Prohibition of Nuclear Weapons (TPNW) fails to consolidate this enhanced verification standard into a binding norm. The TPNW corroborates the respective safeguards standard in force in a NPT State; the TPNW prescribes as a minimum standard a ‘Comprehensive Safeguards Agreement’ which the majority of NPT members for several years now have considered as no longer being sufficient to meet the NPT’s safeguards objectives.”
Category: International law in general
DOI: 10.17176/20220627-172926-0
