Notable statements on international law during December 2021

Published: 27 April 2023 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 December 2021

During the Security Council Arria-formula meeting “Protection of Education in Conflict”, the German representative stated:

“[S]chools have become easier targets for use of military action. Germany strongly condemns these violations of international law as well as the continued widespread military use of schools in armed conflict.

Echoing the recently adopted Security Council resolution 2601, we call on all parties to armed conflict to immediately cease attacks and threats of attacks that are in contravention of international humanitarian law against schools and civilians connected with schools, including children and teachers. …

Germany has endorsed the Safe Schools Declaration and calls on States, which have not done so yet, to join this important Declaration.”

6 December 2021

At the twenty-sixth session of the International Seabed Authority (ISA) Germany stated on agenda item 6 on the status of contracts for exploration and related matters (periodic reviews and relinquishments):

“[W]e are convinced that the contractors’ environmental assessments are of great importance for ensuring an effective protection of the marine environment which is part of the common heritage of mankind. It is essential that these assessments are based on an agreed standard including effective normative requirements. They are of great interest to many stakeholders. We would therefore like to propose that the assessments and the information entailed is systematically gathered, made available to the public, and used for an effective management of the resources – under modalities, of course, that are acceptable to all interests involved.”

7 December 2021

During the UN General Assembly debate on oceans and the law of the sea, the German representative, taking a swipe at China, stated:

“Germany welcomes the fact that this year’s omnibus draft resolution on oceans and the law of the sea reaffirms the universal and unified character of the United Nations Convention on the Law of the Sea (UNCLOS) as the legal framework within which all activities in the oceans and seas must be carried out. Germany also underscores the need to maintain the integrity of the Convention.

Given the universality and comprehensiveness of UNCLOS, it is important to reiterate that all maritime claims in the world’s oceans and seas must be based on the relevant UNCLOS provisions. There is no legal basis for making legal assertions as if there were a parallel body of international law to override matters comprehensively covered within UNCLOS.

While our concern is global, we are particularly concerned by the assertion of unlawful and sweeping maritime claims in the South China Sea, as well as ongoing intimidation and coercion against the lawful rights of other States in the region to access their natural resources in their exclusive economic zones. We call on all States to make their maritime claims and conduct their maritime activities in accordance with the relevant provisions of UNCLOS and to resolve their maritime disputes peacefully and free from coercion, in accordance with the relevant principles and rules of the Convention and its dispute settlement mechanisms, including those entailing binding decisions by international courts and tribunals, which must be respected.

We call on all States to respect the freedoms of navigation and overflight in the high seas and the exclusive economic zones, as well as all other lawful users of the oceans and seas, including the right of innocent passage through territorial seas. Those rights and freedoms are paramount for international trade and transport links, as well as for maritime scientific research, naval missions and economic prosperity.

We are concerned by recent attempts to restrict the lawful exercise of those rights and freedoms in the South China Sea, the Black Sea and elsewhere, including by blurring the clear distinctions made in UNCLOS between the various maritime zones, for example, through the use of unclear legal terminology in domestic legislation regarding the geographical scope of coastguard competencies and maritime traffic security laws.

We reaffirm our support for Ukraine’s sovereignty and territorial integrity within its internationally recognized borders, extending to its territorial waters, including those around Crimea.

It remains our long-standing position that the right of innocent passage through territorial seas pertains to all categories of ships, including warships and Government ships, regardless of their cargo, and that none of the provisions of the Convention, which in so far reflects pre-existing international law can be regarded as entitling coastal States to make the innocent passage of any specific category of foreign ships dependent on prior consent or notification.

Unilaterally established ship reporting requirements on vessels exercising their right of innocent passage and which do not enter or depart the port or internal waters of the coastal State are inconsistent with international law, as reflected in UNCLOS.

Germany has consistently defended the delicate balance struck by UNCLOS between the legitimate interests of coastal States and the freedoms and rights enjoyed by all other States, including landlocked States, in the various maritime zones, including in our declaration on accession, and we will continue to do so.”

8 December 2021

Germany joined Austria, Belgium, Chile, Costa Rica, Denmark, Finland, Ireland, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland (the Group of Like-Minded States on Targeted Sanctions) in a letter to the President of the Security Council, which read in part:

“[W]e wish to draw, once again, attention to the need to improve due process and transparency in the implementation of this sanctions regime. …

Ensuring transparency, efficiency and effectiveness in the work of the Security Council includes the strengthening of fair and clear procedures for United Nations sanctions regimes. Respect for international due process standards is key in this regard.

Independence and impartiality

[T]he [Ombudsperson’s] mandate continues to represent an effective review mechanism for Security Council targeted sanctions … The members of the Group of  Like -Minded States on Targeted Sanctions … remain concerned that the Ombudsperson’s independence is negatively affected by the current contractual status and institutional arrangements for the Office of the Ombudsperson in the Secretariat.

… we urge the Secretary-General and the Security Council to strengthen the capacity of the Office of the Ombudsperson and to make the necessary arrangements to enhance its continued ability to carry out its mandate independently and effectively. These arrangements include taking the necessary steps to establish the Office of the Ombudsperson as a permanent and distinct United Nations entity. The Office must also be given the necessary resources and support to ensure the continuity of the Ombudsperson mechanism, and a Deputy Ombudsperson function should be established with the ability to review petitions and advance procedure in the absence of an Ombudsperson. Such changes are vital to enhancing the ability of the Office of the Ombudsperson to carry out its functions in a timely manner, efficiently and effectively. …

Transparency

In its resolution 2368 (2017) the Security Council requires that the summary of a decision to retain or terminate a sanctions listing, which the Ombudsperson provides to a petitioner, accurately describes the principal reasons for the decision. Due process requires that the reasons underlying the listing/delisting must be clear, understandable and substantiated. The Ombudsperson should be mandated to provide actual and specific reasons for decisions made to the petitioner without undue delay, and with appropriate safeguards regarding confidential material.”

9 December 2021

During the UN Security Council high-level open debate on security in the context of terrorism and climate change, the German representative made a statement on behalf of the Group of Friends on Climate and Security, a group of almost sixty members from all regions of the world, which read in part:

“Climate change is the defining challenge of our time. The effects of climate change pose, inter alia, serious challenges to peace, security, stability and prosperity; to the effective enjoyment of human rights; and, in some cases, even to the existence of States and the physical lives of their citizens. …

The Security Council has the primary responsibility for the maintenance of international peace and security. We welcome the progress made in that regard, including the recognition of the effects of climate change when considering a growing number of mandates for peacekeeping and special political missions. The work of the Informal Expert Group on Climate and Security, comprised of Council members, has proved invaluable in informing the Council’s work. Yet more needs to be done to ensure a more structured and systematic approach and to create the tools necessary to enable the United Nations to do its part in preventing and resolving conflicts that are, at least in part, driven by the effects of climate change.

We therefore strongly welcome the thematic draft resolution that has been put forward. We urge the Council to adopt it swiftly. It would provide the much-needed framework to translate proposals repeatedly made by the Group of Friends into tangible action that would enhance the United Nations risk analysis, capacity-building and operational response.

Climate change is a threat to international peace and security that no nation can face alone. We must act together, and we must act now. The Security Council must live up to its primary responsibility under the Charter of the United Nations to address threats to international peace and security. It should adopt a draft resolution that will allow the Council to address threats to peace and security that climate change poses and will increasingly pose.”

On 13 December 2021, Ireland and Niger submitted a draft resolution that would have requested the UN Secretary-General to integrate climate-related security risk as a central component into comprehensive conflict-prevention strategies of the United Nations, to contribute to the reduction of the risk of conflict relapse due to adverse effects of climate change. With twelve votes in favour, two against (India, Russian Federation) and one abstention (China), the Security Council rejected the draft due to the negative vote by a permanent member of the Council. Russia vetoed the resolution because it considered climate and security “a topic that goes beyond the Security Council’s mandate.”

On the same day, Germany’s Permanent Representative to the United Nations deplored that Russia had vetoed the draft resolution, stating:

“The climate crisis is a serious challenge to peace and security, to stability and prosperity, to the effective enjoyment of human rights, and in some cases possibly even to the existence of States. 113 States therefore supported a crucial Security Council resolution on Climate and Security, which would have given the UN much-needed tools to respond to climate-related security risks.

It is deeply disappointing that this resolution was vetoed by Russia, despite broad support in the Security Council and the wider membership. […] As co-chair of the UN Group of Friends on Climate Change and Security, Germany will not relent in its efforts to work with our partners to ensure that the Security Council will live up to its responsibilities to adequately address the climate crisis – one of the major security threats of the 21st century.”

12 December 2021

Federal Foreign Minister Annalena Baerbock joined her counterparts from G7 countries and the High Representative of the European Union in a statement condemning Russia’s military build-up and aggressive rhetoric towards Ukraine. The statement read in part:

“Any use of force to change borders is strictly prohibited under international law. Russia should be in no doubt that further military aggression against Ukraine would have massive consequences and severe cost.

We reaffirm our unwavering commitment to Ukraine’s sovereignty and territorial integrity, as well as the right of any sovereign state to determine its own future.”

14 December 2021

During the UN Security Council meeting on the implementation of Security Council resolution 2231 (Iran, JCPoA), the German representative stated:

“[D]uring the past six months, Iran has further escalated its nuclear programme by taking extremely far-reaching steps that are incompatible with its commitments under the JCPOA, some of which also do not have plausible civilian use. Those worrying steps include the development and use of advanced centrifuges way beyond JCPOA limits, uranium enrichment of up to 60 per cent, ever-growing stockpiles of enriched uranium, and ongoing research and development activities on uranium metal production, including enriched uranium metal. …

Turning to annex B of the resolution [2231], let me reiterate our well-known position. We continue to consider Iran’s development of ballistic missiles designed to deliver a nuclear weapon, including launches using such ballistic missile technology, as inconsistent with paragraph 3 of annex B to resolution 2231 (2015).”

20 December 2021

Foreign Minister Annalena Baerbock joined her G7 counterparts in a statement on the outcome of the Legislative Council elections in Hong Kong on 19 December 2021 which read in part:

“We … express our grave concern over the erosion of democratic elements of the Special Administrative Region’s electoral system. …

We strongly reiterate our call on China to act in accordance with the Sino-British Joint Declaration and its other legal obligations and respect fundamental rights and freedoms in Hong Kong, as provided for in the Basic Law.”

22 December 2021

On 22 December 2021, Russia convened a virtual UN Security Council Arria-formula meeting on “The situation with national minorities and the glorification of Nazism in the Baltic and Black Sea regions”. Following the Arria-formula meeting, Germany joined thirty-four other States and the European Union in making a statement which read in part:

“The timing of this Arria-formula meeting is especially troubling, coming against the backdrop of Russian military build-up on the Crimean Peninsula and on Ukraine’s borders. The UN Charter prohibits the threat or use of force against the territorial integrity or political independence of any State. Any further military aggression against Ukraine would have massive consequences and a severe cost in response.

We reiterate our unwavering support for the independence, territorial integrity, and sovereignty of Ukraine within its internationally recognized borders including its territorial waters. We strongly condemn the ongoing temporary occupation of part of the territory of Ukraine and reaffirm our non-recognition of its annexation. Russia’s actions are of global concern and in violation of international law, including the UN Charter, run contrary to Russia’s commitments under the Helsinki Final Act and the Paris Charter, and increasingly threaten the security of Europe and the rules-based international order.”

27 December 2021

In a parliamentary question the Federal Government was asked to name the States that were either directly or indirectly involved in the war in Yemen. The Secretary of State at the Federal Foreign Office Susanne Baumann replied:

“The conflict in Yemen is primarily an internal Yemeni armed conflict between the government (under the Yemeni President Abed Rabbo Mansur Hadi, who is recognized as legitimate by the United Nations and the international community) and the rebel group Ansar Allah (after the dominant family also called Houthis). Both parties to the conflict receive support from abroad.

A larger group of States led by Saudi Arabia (the so-called Arab coalition) acceded to President Hadi’s request for assistance. The Arab coalition itself does not clearly identify the participating States. The Houthis are supported by the Islamic Republic of Iran, which as the sole country regard it as the legitimate government of Yemen.”

DOI: 10.17176/20230427-204648-0

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