Published: 10 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.
1 November 2021
During the regular government press conference, the Federal Government was asked whether Germany had asked permission of the Palestinian Authority for German military aircraft to fly in the airspace over the occupied West Bank. A spokesperson for the Federal Foreign Office replied:
“The legal situation under international law is such that Israel exercises air traffic control over the airspace of the occupied territories. This is also stated in the Oslo Accords.”
3 November 2021
During the debate of the Report of the International Law Commission (ILC) in the UN General Assembly’s Sixth Committee, the German representative commented on the topic “General Principles of Law”, calling general principles a “contentious category […] formed within the international legal system” which required careful consideration. Commenting on the methodology for the identification of general principles of law derived from national legal systems, the German representative stated:
“Germany agrees that the comparative legal analysis underlying the ‘recognition’ element in the determination of general principles of law derived from national legal systems must cover different ‘legal families’ but must also provide for geographical representativeness and diversity. This aspect, in Germany’s view, is of critical importance for the legality and legitimacy of any findings on general principles of law. The formulation suggested that the analysis must be ‘sufficiently wide and representative’ in Germany’s view captures this requirement well. […] [I]n Germany’s view, the non-availability of information on certain legal systems to other States with regard to a particular issue in principle does not alter or reduce the requirements of the representativeness criterion which is inherent in the notion of commonality of a principle ‘to the various legal systems of the world’. It cannot absolve those seeking to determine the existence of a general principle from a sufficiently wide and representative comparative analysis and must not lead to premature findings on the existence of such a principle. Germany certainly takes into account that the representativeness criterion does not require the consideration of each and every legal system in the world.”
Commenting on the proposed requirement that principles common to the principle legal systems of the world must be compatible with “fundamental principles of international law” to be capable of being transposed to the international legal system, the German representative stated:
“While we generally agree with the compatibility test, we feel that further analysis might be helpful to identify what kind of ‘principles’ could possibly further qualify as ‘fundamental’ in this context […]. A crucial aspect, in Germany’s view, is indeed the differentiation between such ‘fundamental principles’, which may bar the ‘influx’ of legal principles from the domestic legal sphere in the international legal system, and ‘simple’ principles or characteristics of the international legal system, as well as international norms and general principles of law, which do not have that quality.”
The German representative also addressed the question of general principles of law formed within the international legal system as a source of international law, saying:
“While Germany does not exclude the possibility that general principles of law derived from the international legal system exist as a source of international law, we underline that the criteria for identifying them must in any case be sufficiently strict, so as to minimize the risk that the rules governing the identification of customary international law are undermined or bypassed in practice.”
Finally, Germany commented on the proposed new category of principles widely recognized in treaties and “other international instruments”; that is, elements or notions within a treaty or instrument that can be considered to have emancipated themselves from their origin in order to acquire a distinct and independent legal status as a general principle of law. The German representative said:
“Germany doubts that binding legal principles formed within the international legal system may be derived from a synopsis of purely non-legally binding instruments – this would be different from cases in which a non-legally binding instrument was referred to in order to corroborate a legal principle recognized in other, legally binding instruments.”
6 November 2021
Germany joined fifteen other States in a statement on the release of the joint investigation report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the Ethiopian Human Rights Commission (EHRC) of human rights violations and abuses, and of serious violations of international humanitarian law and international refugee law, committed by parties to the conflict in the Tigray region of Ethiopia between 3 November 2020 and 28 June 2021. The statement read in part:
“The findings of the investigation included in the joint report are grave, and there are reasonable grounds to believe that abuses and violations of human rights, and violations of international humanitarian law, such as those involving attacks on civilians and civilian objects, unlawful or extra-judicial killings and executions, torture and other forms of ill-treatment, arbitrary detention, abductions and enforced disappearances, and sexual and gender-based violence, have taken place. The authors of the report conclude that some of these violations and abuses may amount to crimes against humanity and war crimes. …
It is critical that all those responsible for violations and abuses of human rights and violations of international humanitarian law referenced in the report are held to account, and the governments of Ethiopia and Eritrea should ensure there are credible investigations. …
All parties must comply with their obligations under international humanitarian law, including with respect to the protection of civilians and humanitarian personnel. We also call for the immediate withdrawal of Eritrean forces in Ethiopia and underline the need for the Government of Eritrea to ensure accountability for violations and abuses committed by its forces in Tigray.”
9 November 2021
Germany endorsed the “Declaration on promoting the jurisdiction of the International Court of Justice”, a three-page document initiated by Romania which had been launched on 3 November 2021 in a virtual event by Romania and a core group of eight other States. Such an endorsement was considered by the members of the core group “as an expression of States’ willingness to ground their foreign policies on strict compliance with international law and to turn the leading international court into a judicial body having de facto universal jurisdiction.” The States endorsing the Declaration encourage States to
- have recourse to the jurisdiction of the Court for settling their inter-State disputes and to that end confer jurisdiction on the Court
- exercise great care when drafting titles of jurisdiction with due regard to the importance of avoiding disputes over the jurisdiction of the Court
- consider withdrawing, where appropriate, the reservations made to the specific dispute settlement provisions in international treaties conferring jurisdiction on the Court to deal with disputes related to the application and interpretation of the specific treaty
- include compromissory clauses in new bilateral and multilateral treaties, where appropriate
- accept the jurisdiction of the Court seized with a case against them, on the basis of the forum prorogatum, where appropriate
10 November 2021
During the debate of the “Report of the International Criminal Court” in the UN General Assembly, Germany reaffirmed its “enduring support for the ICC”. Highlighting that the country was the second largest contributor to the ICC’s budget, the German representative stated:
“[T]he International Criminal Court, although still a relatively young institution, is an integral part of today’s international legal order. With its unique independence and impartiality, the ICC was established on a solid foundation.
The Court is highly esteemed by the international community for its clear determination to ensure justice and fight impunity. International crimes must not go unpunished, and the perpetrators must be held accountable. […]
We remain convinced that outside interference or pressure has no place in the independent work of the Court.”
Whether the ICC is really “highly esteemed by the international community” as a whole may be questioned in light of the critical comments about the Court’s work by the African Union and several States.
15 November 2021
Germany joined Brazil, India and Japan in a Joint G4 Statement at the 33rd plenary meeting of the General Assembly on the Question of equitable representation on and increase in the membership of the Security Council and other matters related to the Security Council which read in part:
“In the 75 years since the establishment of the United Nations, we have witnessed the emergence of a number of Member States on all continents with the capacity and willingness to substantially and continuously contribute to the maintenance of international peace and security other than the Council’s current permanent members. It is in the interest of world peace and stability that those countries be enabled to make constant contributions to the Security Council by becoming new permanent members of it. Of course, those new permanent members would have to be elected by the members of the General Assembly by a vote of two thirds in a secret ballot, pursuant to the rules of procedure of the General Assembly. That is the basis of the G-4 position. […]
The G-4 supports the Common African Position as a whole and especially concurs that it is indispensable to expand the Security Council in both categories of membership so as to enable it to better deal with the increasingly complex and evolving challenges to the maintenance of international peace and security.”
15 November 2021
On 13 November 2021, the Ukrainian President Ukrainian said that Russia had amassed nearly 100,000 soldiers Ukraine’s border as well as many tanks, ballistic missiles and assorted artillery. In a joint statement the Foreign Ministers of Germany and France expressed “concerns about Russian movements of troops and hardware near Ukraine” and called on Russia to “provide transparent information about its military activities”. They also accused Russia of “failure to provide transparent information in line with its international obligations.”
The term “international obligations” gave the misleading impression that Russia was under an international legal obligation to provide information on its military activities along the Ukrainian border. The relevant document here was the Vienna Document on Confidence- and Security-Building Measures that was adopted in 1990 after the end of the Cold War and updated last in 2011. This document, adopted under the auspices of the Organization for Security and Co-operation in Europe, provided that participating States were to notify the other participating States of certain notifiable military activities in Europe as well as the adjoining sea area and air space. The document, however, expressly provided that the “measures adopted in this document are politically binding.”
15 November 2021
On 14 November 2021, the separatists in the Donbas region of Ukraine fired at the Nevelske settlement in the government-controlled part of Donetsk using 120mm mortars. As a result, 2 cars of the Medical Forces of the Armed Forces of Ukraine were destroyed, and 2 paramedics were injured. This attack violated both the ceasefire and the commitment to withdraw heavy weapons, including artillery systems with calibre greater than 100mm and more, under the Minsk agreements. On 15 November 2021, the German Embassy in Kiev wrote on Twitter:
“We condemn yesterday’s violation of the ceasefire agreements and international humanitarian law by pro-Russian forces and call for full compliance with the agreements.”
15 November 2021
Germany participated with six Eurofighter Typhoon jets and some 160 soldiers in the multinational military exercise Blue Flag 2021 that was held in Israel from 17 to 28 October 2021. In response to reports that the German military aircraft also flew over the occupied Palestinian territories, the Parliamentary Secretary of State at the Federal Ministry of Defence Thomas Silberhorn stated:
“To the knowledge of the Federal Government, German combat aircraft did not fly over the West Bank during exercise Blue Flag 2021.
During the period of the exercise, German Eurofighters of the Luftwaffe, however, flew over the West Bank twice and once over Ramallah as part of transit flights, which were not part of the exercise and therefore did not represent any maneuvers.
These were transit flights, which took place at flight altitudes that correspond to civilian air traffic areas, and which cannot be taken as a sign of recognition of the Israeli settlement policy in this area.”
15 November 2021
In a parliamentary question the Federal Government was asked whether there were any reporting and reduction requirements under the 2015 Paris Agreement with regard to military greenhouse gas emissions. The Parliamentary Secretary of State at the Federal Ministry of Defence Thomas Silberhorn replied:
“Reduction commitments for military emissions are not set out separately under the Paris Agreement. However, they are covered by the greenhouse gas emissions reporting under the Framework Convention on Climate Change and in future also under the Paris Agreement, and accordingly are published in the annual National Inventory Report for the German Greenhouse Gas Inventory by Federal Environment Agency. The Federal Republic of Germany hereby fulfills its obligation as a State party to the Framework Convention on Climate Change to compile, publish and regularly update complete inventories of national greenhouse gas emissions. According to the Intergovernmental Panel on Climate Change (IPCC) 2006 Guidelines for National Greenhouse Gas Inventories and Decision 24/CP.19 of the Conference of the Parties to the United Nations Framework Convention on Climate Change, the domestic emissions of the federal armed forces are recorded under source category 1.A.5. […].
Emissions from ‘multilateral military operations’ are reported as so-called ‘memo items’, but are not accounted for in the total emissions of individual countries. The territorial principle applies to the allocation of emissions; that is, the emissions within the respective State borders are reported and attributed to a country. For this reason, emissions from multilateral operations are reported separately.
Neither emissions from domestic military operations nor from multilateral military emissions have been discussed in the Glasgow negotiations and no country has tabled a proposal with regard to these emissions. As binding legal basis for emissions reporting under the Paris Agreement the IPCC Guidelines for National Greenhouse Gas Inventories were adopted in 2006, which implement the procedure described above.”
19 November 2021
On 11 February 2015, the United States suspended the operations of its embassy in Yemen and entrusted the custody of the premises of the mission to local staff. On 8 November 2021, armed Houthi rebels seized the former embassy compound and detained dozens of U.S.-employed Yemeni security personnel guarding the premises. On 18 November 2021, the members of the UN Security Council condemned in the strongest terms the ongoing seizure of and intrusion into the compound formerly used as the United States Embassy in Yemen. One day later, the Director Middle East and North Africa at the Federal Foreign Office wrote on Twitter:
“I join the UNSC in condemning the heinous seizure of the U.S. Embassy in Sana‘a Yemen and ongoing detention of its staff. This violates the Vienna Convention. I call upon the Houthis to immediately release all US employees and withdraw from the premises!”
While the Federal Foreign Office official declared that the seizure of the compound and the detention of the local security personnel “violates the Vienna Convention”, the members of the Security Council were more cautious in their statement, simply recalling “the fundamental principles enshrined in the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations.” As the Vienna Conventions are binding only on States and their governments, there is no question of a “violation” of the Conventions by the Houthi rebels.
19 November 2021
During the 19th meeting of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Germany and three other States submitted the following ‘Explanation of Position on the “State of Palestine”’:
“We the undersigned, as strong supporters of humanitarian disarmament instruments in general and the Anti-Personnel Mine Ban Convention (APMBC) in particular, endorsed the final report of the 18th Meeting of the States Parties dated 20 November 2020. With respect to previously made statements, and in reference to our respective positions on the “State of Palestine”, specifically in relation to the UN General Assembly Resolution 67/19 on the “Status of Palestine in the United Nations”, our endorsement of the report and documents should not be construed as recognition of a “State of Palestine” by our countries.”
24 November 2021
At the International Atomic Energy Agency Board of Governors’ meeting, France, Germany and the United Kingdom delivered a joint statement addressing Iran’s implementation of its nuclear commitments under the JCPoA which read in part:
“We are deeply concerned that, for more than two years, Iran has continued its systematic nuclear escalation, thereby permanently and irreversibly upgrading its nuclear capabilities and exposing the international community to significant risk. Iran has no plausible civilian justification for both 20% and 60% enrichment and the production of High Enriched Uranium (HEU) is unprecedented for a State without a weapons programme. As a result of its alarming pace of production, Iran’s total stockpile today contains enough fissile material that if enriched further could be used to produce more than one nuclear weapon and accumulation of uranium enriched at 20 and 60% is further reducing the time Iran would take to break out towards a first nuclear weapon. Moreover, the recent installation of modular infrastructure of advanced centrifuges is a concerning development since it will enable Iran to change the operating configuration of such cascades more easily and to enrich to higher levels. Iran has also developed essential knowledge critical to the production of a nuclear weapon, in particular in the field of uranium metal. Research & Development (R&D) with both natural and enriched uranium metal lack any plausible civilian justification in Iran and is providing Iran with weapons applicable knowledge gains. Iran’s R&D on, and extensive use of, advanced centrifuges have permanently improved its enrichment capabilities. This means that Iran’s continued escalations are irreversibly reducing the counter-proliferation value of the JCPoA.
The combined effect of these steps – including the increased production of High Enriched Uranium; the accelerated development and deployment of advanced centrifuges; and the production of uranium metal enriched to 20% – means that the nuclear programme is now in a significantly more advanced state. While expanding its nuclear activities, Iran has also considerably reduced crucial cooperation with the IAEA and seriously undermined the Agency’s ability to monitor the Iranian programme. For nine months already, Iran has suspended all transparency and verification measures, under the JCPoA and under the Additional Protocol. The successive prolongation of the Temporary Technical Understanding reached in February to maintain the possibility of restoring continuity of knowledge, and Iran’s continued refusal to formally extend these limited transparency measures have become a significant challenge to the Agency. Continuity of knowledge is key for the Agency to be in a position to resume the necessary verification and monitoring activities in Iran in relation to the JCPOA. We therefore very strongly urge Iran to reinstate IAEA access and cooperate in full.”
25 November 2021
At the International Atomic Energy Agency Board of Governors’ meeting, France, Germany and the United Kingdom delivered a joint statement addressing Iran’s implementation of its safeguards agreement under the Nuclear Non-Proliferation Treaty (NPT) which read in part:
“We reiterate that implementation of Modified Code 3.1 [of the Subsidiary Arrangements to Iran’s NPT Safeguards Agreement] cannot be modified or suspended unilaterally. In refusing to fully co-operate with the IAEA, Iran undermines the integrity of the global safeguards system.”
26 November 2021
The Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office issued the following statement regarding the continued pre-trial detention of Osman Kavala in Turkey:
“With today’s ruling by the Istanbul court, Turkey unfortunately has failed to comply with the request of the European Court of Human Rights – a request that has been left unanswered for almost two years now – for the immediate release of Osman Kavala. I very much regret that.
The Council of Europe will decide in a few days on how to proceed in this matter. It is clear to me that this case is not just about the person of Osman Kavala, not just about Turkey, but about human rights protection in Europe as a whole. The implementation of the decisions of the European Court of Human Rights is a cornerstone of the system of protection for human rights that the Council of Europe has been building up since it was founded. All of its member states, including Turkey, have committed to complying with basic human rights standards as laid down in the European Convention on Human Rights. This also includes the implementation of the judgments of the European Court of Human Rights.
In the interests of all people in the Council of Europe states, it is therefore important to maintain and strengthen this system.”
28 November 2021
On 28 November 2021, it was reported that the German Embassy in Washington, DC had sent a non-paper on “Promoting Transatlantic Unity and Ukraine`s energy security in German-US relations” to members of the U.S. Congress, the Federal Government called upon congressmen not to impose sanctions on the Nord Stream 2 pipeline. The non-paper read in part:
“Germany is fully determined to successfully implement the “Joint Statement of the US and Germany on Support for Ukraine, European Energy Security, and our Climate Goals“ of July 21 to strengthen both Ukraine’s as well as European energy security and deter Russia from misusing the pipeline for aggressive political ends. We are concerned that renewed, unilateral action by US-Congress would undercut this joint effort and seriously weaken transatlantic unity on Russia. […]
Since Russia’s illegal annexation of Crimea and Russia’s actions in eastern Ukraine as a turning point in relations with Russia, Germany has been leading the EU to align itself with the US on Russia sanctions and spearheaded the creation of several Russia-related sanctions’ regimes in the EU and nationally. Germany has sent strong signals to Moscow when it found Russia breaching international law even at the cost of accepting a strain on German-Russian relations, but kept dialogue-channels open. […]
US Sanctions targeting Nord Stream 2 would undermine the commitment given to Germany in the Joint Statement, weaken the credibility of the US government, and endanger the achievements of the Joint Statement, including the provisions supporting Ukraine. They would ultimately damage transatlantic unity. […].”
29 November 2021
During the UN Security Council Arria-formula meeting on Accountability in Syria, the German representative stated:
“Systematic and wide-scale violations of international humanitarian law and abuses of international human rights continue to occur in Syria. The Commission of Inquiry confirmed that such violations and abuses might constitute crimes against humanity, war crimes and other international crimes. […] Clearly, the penal courts in Syria will not bring the perpetrators of these crimes to justice. We therefore continue to urgently call on the Security Council to refer the situation in Syria to the International Criminal Court. Russia and China must stop vetoing such a referral.”