Published: 22 October Author: Rohan Sinha
On 19 May 2021, the Federal Government adopted a white paper setting out Germany’s engagement in international organisations. Published in the wake of the Covid-19 pandemic, the white paper sought to outline how the multilateral order could be adapted to the changed conditions and address the challenges of the 21st century. With this document, the Federal Government aimed ‘to take a stand, declare its position and justify why and how Germany is more prepared than ever before to invest, both politically and materially, in multilateral cooperation and the mechanisms and institutions that facilitate this collaboration.’
The 148-page strong white paper, entitled ‘A Multilateralism for the People’, underlined the aim of improving the lives of people in Germany, in Europe and around the world. The document contained numerous references to international law that shed light on Germany’s understanding of international law and international institutions. For example, as an order that comprises trade and the economy and that is ‘[g]eared towards stability and predictability’, international law is described as ‘an essential prerequisite for Germany’s success as an exporter.’ Championing international law is therefore a matter of self-interest. International law is also referred to as ‘the collective rulebook for the world order, and the UN – with its almost universal membership and many forums, bodies and organisations dedicated to a wide range of issues – is its institutional backbone.’ One of the themes of the document is the challenge that the international legal order and multilateralism face from violations of international law. Against this backdrop, the Federal Government is declaring its unwavering commitment to and defence of international law.
More International Law in International Relations
The white paper makes it clear that Germany sees a need for more international cooperation and rule-making:
The strength of international law counterbalances the law of the strong and restricts the arbitrary use of that power by states. This is why Germany supports the further juridification of international relations.
After recalling the origins of the contemporary multilateral system, the document argues that the need for international cooperation on global issues has increased:
Binding rules and guiding principles are a prerequisite for effective multilateral cooperation. However, the establishment of international law is itself dependent on states cooperating with each other and sharing similar aspirations. As a result of this mutual dependence, the past 75 years have seen two processes develop concurrently – the comprehensive juridification of international relations and the formation of the multilateral system. The establishment of the United Nations (UN) in 1945 was the starting point for both these processes. The UN was founded with a multilateral treaty based on pre-existing international organisations such as the League of Nations, the Universal Postal Union and the Central Commission for the Navigation of the Rhine. However, it was the establishment of the UN that first created a comprehensive and enduring institutional framework for international cooperation on a global level. Since then, the responsibilities of the UN have included maintaining peace and security, developing peaceful relations between states and promoting international cooperation to solve economic, social, cultural and humanitarian problems.
The increasing juridification and institutionalisation of international relations in their various political, economic, cultural, humanitarian, environmental and other dimensions is both a consequence of, and a prerequisite for, ever closer cooperation between states. The need for shared rules, standards and collectively agreed problem-solving and conflict-resolution strategies has grown rapidly in recent decades. This is a direct response to advancing globalisation, particularly in the flow of goods, capital and information, but also with respect to travel, diseases and criminality. Rules create predictability, increase trust and facilitate cooperation. This applies to fundamental basic norms of international cooperation – such as the general prohibition of the use of force by states enshrined in the UN Charter – and to environmental protection agreements, regulations on protecting foreign investments and quality standards for imported products.
The white paper identifies certain specific issues where Germany sees a need for further rule-making:
The Federal Government will continue to advocate new multilateral approaches to tackling any challenges that are not yet covered by international systems of rules. These include, for example, the digital domain, which has been largely created by private enterprises and has, to a great extent, been dominated by them to date. So far, there has been virtually no global or even regional system of rules governing the rights of users to their data, the protection of personal rights and the fair taxation of profits that companies generate online. Similarly, the Federal Government is strongly advocating generally recognised norms, principles and codes of conduct for state activities in cyberspace.
At the same time, Germany notes that cooperation has become increasingly difficult:
[Another] challenge facing international law as a pillar of the multilateral order is the recent decline in willingness among a series of states to accept new commitments and obligations that would make it possible to adapt the international legal system to current challenges. If these commitments and obligations are to open up new avenues for tackling global problems, they must enjoy the widest possible approval by and involvement of the international community. Without the participation of major actors in the international order, it will be more difficult to use multilateral agreements, institutions and processes as an effective means of responding to global challenges such as climate change, the spread of weapons of mass destruction and epidemics.
In the context of international peace and security, the paper points out where Germany is most visibly confronted with differing perspectives that impede cooperation:
International law provides an indispensable framework for international engagement in crisis prevention. However, progress in developing this framework has been virtually impossible, particularly within the UN, as two permanent members of the UN Security Council – China and Russia – frequently view approaches that are aimed at preventing crises as contraventions of the principle of non-interference.
Violations of International Law as a Threat to Multilateralism
Apart from the difficulty of rule-making and international cooperation, a major challenge that the white paper identifies for multilateralism in the twenty-first century are violations of existing international law:
The international order based on multilateral principles is under massive pressure. Some countries openly violate international law and agreements they have entered into of their own accord, and even go so far as undertaking violent annexations or contravening arms control treaties. They flout the rulings of international courts and violate agreements designed to protect fundamental human rights that they themselves have undertaken to follow as members of the UN, the Council of Europe or other multilateral organisations and agreements. As a result, these countries, which are predominantly ruled by authoritarian governments, are endangering the general acceptance of established norms and undermining the regulatory capacity of the international system.
Germany also observes attempts by certain States to change international legal rules by exerting influence over other States:
The biggest threat to the international order comes from attempts to change tried-and-tested rules in multilateral forums to benefit one or just a few countries or to reinterpret fundamental norms of international law such as human rights. Such moves seek to elicit support from other countries by creating incentives and applying pressure, particularly through the use of economic power and infrastructure policy, and usually without any recourse to international standards regarding human rights, the environment or labour regulations. Military and security policy ties and interdependencies are also starting to play an increasing role in this context.
Germany’s commitment to international law entails calling out violations of international legal rules. The white paper states:
Germany is resolutely committed to upholding the modern international legal order and its institutions. The basic norms of this order, such as the prohibition of the use of force between states and the protection of human rights, are universal. Within the EU and in its dealings with international partners, the Federal Republic therefore acts to clearly condemn violations of international law, call out the states and individuals responsible for these violations and, where possible, hold them to account.
Accordingly, the white paper does not shy away from calling out specific instances of serious violations of international law:
Germany resolutely opposes any attempts to weaken international law and international jurisdiction. The open violation of international legal principles such as the general prohibition of the use of force by states and the prohibition of annexation is a particular cause for concern. Germany has therefore repeatedly and firmly condemned Russia’s violation of Ukraine’s territorial integrity. The annexation of Crimea by Russia is a contravention of international law that cannot be rectified by staging referenda, nor by maintaining this state of affairs, which was brought about by the use of force.
The violations of fundamental obligations and guarantees in the field of human rights and international humanitarian law that are currently being witnessed in armed conflicts in Syria, Afghanistan and Yemen, for example, are just as objectionable. The same applies to the repeated use of chemical weapons both by the Syrian regime against its own people and by Russia against individuals. If violations such as these are not met with consequences, there is a risk that others may imitate them, thus undermining the legitimacy of international law, including in other contexts. This then once again throws into doubt the legal restriction achieved to date that limits states’ internal and external actions under international law. Contraventions of international law, primarily those committed by major powers, destroy trust and make it harder for parties to work together and reach compromises.
International Rule of Law
According to the Federal Government the corollary of the ‘juridification of international relations’ is the international rule of law. The white paper recalls:
The beginnings of an international rule of law have taken shape over recent decades as areas of international relations that were previously barely taken into account have become enshrined in law. International courts and other decision-making authorities have grown considerably in both number and importance since 1945, and play a key role in enforcing rules and obligations under international law. For example, besides the International Court of Justice (ICJ) in The Hague, which is enshrined in the UN Charter, there are now also courts with authority over special issues or regions, such as the International Criminal Court (ICC) in The Hague, the International Tribunal for the Law of the Sea (ITLOS) in Hamburg and the Court of Justice of the European Union (CJEU) in Luxembourg. Quasi-judicial roles and competencies are also exercised by courts of arbitration that convene on an ad-hoc basis and institutions such as the dispute settlement mechanism of the WTO, which is at the heart of the rules-based multilateral system of trade. Furthermore, almost all modern bilateral trade agreements contain provisions on dispute settlement mechanisms.
The Federal Government underlines its staunch support for international courts and tribunals:
Germany lends its political and financial support to the work of international courts, their constituent bodies and multilateral institutions in protecting human rights and provides assistance in terms of personnel. German judges sit on international courts on a regular basis and work to enforce and to continue to develop international law.
However, the white paper observes declining compliance with established mechanisms of dispute settlement:
Besides clear violations of international law, there is also a growing tendency toward the selective use and reinterpretation of international law, which is equally harmful to the law’s role as a guarantor of the peaceful settlement of disputes and cooperation in a spirit of trust. The same applies to the disregard for relevant judgements and decisions issued by international courts as well as attempts to weaken the same. For example, China continues to make wide-ranging claims to territories in the South China Sea, even though the United Nations Convention on the Law of the Sea (UNCLOS) ruled [sic] against these claims in 2016.
Even within the EU, which has considered itself to be a community of laws and values since it was first established, compliance with legal standards and relevant judgements by the Court of Justice of the European Union is not always a given. This has been demonstrated by conflicts with individual EU member states on issues relating to the independence of the judiciary and the freedom of the media, for example.
Human Rights
A central pillar of Germany’s multilateral commitment is the protection of human rights. The white paper explains:
In the years after 1945, an international legal system for protecting human rights began to emerge as a response to the persecution and annihilation of European Jews by National Socialist Germany and the mass atrocities of the Second World War. This system plays a key role in terms of gearing international relations to fundamental values and legal principles. Since the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948, a tight-knit network of multilateral agreements and institutions has taken shape that enshrines the obligation of states to comply with and enforce universal human rights in international law.
To ensure that human rights are protected as effectively and widely as possible under international law, a large number of institutions and mechanisms has evolved for the purpose of international reviews and consultations in the event of human rights violations and for specific complaints from victims. At a global level, these include the United Nations Human Rights Council (HRC), the Third Committee of the UN General Assembly, which is responsible for social, humanitarian and cultural issues, the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the procedures and additional bodies for monitoring and enforcing international human rights conventions, which are enshrined in numerous agreements. Protection against breaches of regional human rights agreements is provided by institutions such as the European Court of Human Rights (ECtHR) in Strasbourg, which is part of the Council of Europe, the Inter-American Court of Human Rights in San José (Costa Rica) and the Office for Democratic Institutions and Human Rights (ODIHR), which is part of the OSCE.
This comprehensive system of regulations and institutions ensures that the actions of states are subject to legal standards on an international level. Today, if cooperation between states is to qualify as fully fledged multilateralism, it must measure up to universal values, principles and shared aims.
For Germany, human rights violations within a State are not an internal affair. The white paper states:
Germany supports the principle of the international responsibility to protect, which stipulates that serious crimes against humanity are not domestic affairs protected by state sovereignty.
Germany wants to be an advocate for human rights in the UN system and, in particular, leave its mark on the work of the UN Human Rights Council. The white paper states:
In addition to its membership of the United Nations Security Council (UNSC) in 2019/20, Germany will also be a member of the UN Human Rights Council (HRC) until 2022. Germany is continuing to bring its capacities to bear as a member of the HRC and UNSC to further develop key issues of the future in the area of human rights protection.
Germany invited a record number of civil society representatives to brief the council as a member of the UNSC from 2019 to 2020. The role of civil society and the promotion of dialogue between the UN institutions and civil society representatives is also a priority of the Federal Government’s work in the UN Human Rights Council.
Germany is continuing to work to ensure that the Human Rights Council addresses not just the protection of fundamental rights and freedoms, but also challenges and issues such as human rights to health, clean drinking water and sanitation, as well as the human right to adequate food, the protection of privacy in the digital age, and the impacts of climate change on human rights. This also encompasses a dialogue with the International Labour Organization (ILO), which has created a canon of social human rights in the form of its core labour standards and also has expertise in dealing with the social impacts of climate change. The Federal Government firmly believes that, even in times of crisis, the protection of human rights must be a top priority in order to protect those who have been particularly badly affected by COVID-19 and reinforce social cohesion for tackling the pandemic.
International Humanitarian Law
Germany is dedicated to increasing compliance with international humanitarian law. In 2019, Germany and France set up the Alliance for Multilateralism.[Through its activities in the Alliance, the Federal Government is working with its partners to counter, inter alia, violations of international humanitarian law and attacks on humanitarian workers. The white paper states:
International law and its effective enforcement are also a key priority of the Alliance for Multilateralism. Responding to an initiative from Germany and France, 47 countries and the EU launched a Humanitarian Call for Action that aims to strengthen and improve the enforcement of international humanitarian law and humanitarian principles worldwide. In specific terms, the aim is for as many countries as possible to enforce and comply with the humanitarian obligations that are already in place, such as UN Security Council Resolution 2286 on the protection of medical and humanitarian personnel in conflict situations. Another objective is to raise awareness of the substance and obligations of international humanitarian law among members of state security forces and members of non-state armed groups with a view to improving compliance with humanitarian norms in specific risk situations. In addition, humanitarian organisations are to be supported in their work to ensure, as far as possible, that anti-terror regulations and sanctions do not restrict impartial humanitarian aid.
The Federal Government advocates the application of existing international humanitarian law rules to new types of weapons systems, such as systems that inhibit the use of space-based services or autonomous weapons systems. In this regard, the white paper states:
It is important to ensure that these new types of weapon system are also compatible with international humanitarian law and pre-existing arms control regimes. Due to their use of artificial intelligence, it is feasible that lethal autonomous weapon systems could, in the future, be in a position to make life-and-death decisions independently, without any human input. Germany has advocated a global ban on fully autonomous weapon systems for many years and has joined with other countries – in the Alliance for Multilateralism, for example – in calling for weapon systems with autonomous functions to be used only in line with binding principles. Key criteria for these principles include adequate human controls and compatibility with international law.
International Criminal Law
For Germany, the protection of human rights goes hand in hand with preventing impunity for perpetrators of international crimes. In connection with the Franco-German Alliance for Multilateralism, the two States also initiated an ‘Alliance against Impunity’. The white paper elaborates:
This initiative seeks to ensure that perpetrators of crimes under international law are actually brought to justice. The Alliance members are also promoting a separate convention on the prevention and punishment of crimes against humanity under international law. This could close regulatory loopholes, particularly for states that have not as yet ratified the Rome Statute and are, for various reasons, unlikely to ratify it in the foreseeable future. The UN International Law Commission adopted a draft for a separate convention on crimes against humanity in 2019. Germany is fervently committed to ensuring that discussions be commenced on the adoption of the convention in the bodies of the UN and has taken steps to form a Group of Friends with like-minded states that will pursue this aim.
Germany is also involved in the initiative on concluding a Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes. This initiative is intended to culminate in a convention in 2022 and is already supported by 76 states (as of March 2021).
Besides its involvement in developing new instruments of international criminal law, Germany is a strong supporter of the Rome Statute and the International Criminal Court:
Germany supports international criminal jurisdiction across the board. One particular priority is the creation and ongoing development of effective mechanisms and institutions for punishing war crimes, genocide and crimes against humanity. The International Criminal Court (ICC), which was created by the Rome Statute in 1998, is a key instrument for the international prosecution of crimes under international law and a fundamental part of the rules-based world order. When the ICC was established, it was the first time a permanent international court had been created to prosecute crimes under international law.
Germany was among the first state parties to the Rome Statute and also took the statute further by incorporating the crime of aggression, in the sense of a war of aggression, into national law. The Federal Republic is the biggest contributor to the ICC budget after Japan. Germany supports the day-to-day work of the ICC and other specialist international courts by providing judicial assistance, particularly in terms of detaining in German prisons people who have been sentenced, and is thus making an important contribution to the practical functioning of these courts. To make the work of the ICC even more effective, particularly given the complexity of the cases it deals with, a group of experts headed by South African judge Richard Goldstone submitted a comprehensive set of recommendations for reform. Germany is closely supporting and overseeing these reform discussions. The Federal Government is providing funding for an investigation into the effectiveness of procedures at the ICC, which is being conducted by the International Nuremberg Principles Academy and Friedrich-Alexander-University Erlangen-Nuremberg.
As the ICC complements national criminal jurisdiction, Germany also introduced a dedicated Code of Crimes against International Law (CCAIL), which incorporated into its national law international rules from the Rome Statute on the criminalisation of genocide, crimes against humanity, war crimes and aggression between States. The white paper also describes other actions taken by Germany to prevent the impunity of perpetrators of international crimes, for example, in Syria:
Germany has been working for years to ensure that war crimes in Syria do not go unpunished. From the outset, the Federal Republic has lent political and financial support to the UN’s International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic (IIIM). It has also successfully lobbied for the IIIM to be included in the regular budget of the UN.
The White Paper: A One-Sided Document with Little Impact
The Federal Government’s ‘White Paper on Multilateralism’ aimed to extend ‘an open invitation to join the discussion and help develop further ideas and suggestions for proactive multilateralism.’ It is therefore unfortunate that it did not receive much attention or evoke substantial reactions from the public, from academia or from other States. Nevertheless, as other countries have published similar documents, the white paper is a welcome public resource that explains how Germany practices multilateral cooperation and thereby makes the guiding principles that underpin its foreign policy more transparent.
Yet, from a legal perspective, the white paper may be faulted for blurring the lines between international law and politics. The document is precise, for example, in defining ‘multilateralism’ as ‘cooperation between three or more countries’ that can ‘also [encompass] cooperation between countries and non-state actors’, but ambiguous in its use of many other key terms. In particular, it is not clear what distinctions are intended when reference is made to the ‘international legal order’, the ‘rules-based (international) order’, and the ‘international order’ or ‘global order’, rather than international law. Confusion abounds when the document states that‘[i]nternational law is at the heart of Germany’s multilateral commitment’ but at the same time states that Germany subscribes to a ‘values-based multilateralism’ founded on what are labelled ‘fundamental’ or ‘universal’ principles of ‘democracy, the rule of law and the protection of human rights’. Other States are known to interpret legal principles and norms in ways different from that of Germany; international law and the UN Charter are based on a multitude of value systems in order to accommodate relations among States with differing political, economic and social systems. Hence, the document can be criticised for giving the impression of discrediting the behaviour and initiatives of some States on the global stage as contrary to international law when they merely adopt a different view about how multilateralism should be practiced. These States are further alienated by being labelled, rather unnecessarily, as ‘predominantly ruled by authoritarian governments’. International law does not prohibit States from cooperating outside established frameworks, as long as they do not violate their existing treaty obligations. Similarly, as the white paper expresses concern for increasing economic and military interdependencies, it must be remembered that such spheres of influence are generally of no concern to international law, unless they are based on treaties and legal institutional arrangements, in which case they would be covered by States’ freedom of action.
Regrettably, the Federal Government’s first white paper on multilateralism falls short of addressing some of the most common grievances often put forth by States of the ‘Global South’ against ‘Western States’. In Africa, Asia and Latin America, many countries have steadily lost faith in the legitimacy and fairness of the international system, which is viewed to have denied them an appropriate voice in global affairs and failed to sufficiently address their concerns. From this perspective, it is noteworthy that the white paper resorts to naming and shaming ‘the usual suspects’ for serious violations of international law while at the same time omitting to mention any of the many violations of international law and the undermining of multilateral institutions committed by friends and allied States. A foreign policy strategy advocating for global compliance with international law should have been less oblivious to the often-raised accusation of double standards.
Category: International law in general
