Stefan Talmon, Author at GPIL - German Practice in International Law

Loss of refugee status by going on holiday to the country of persecution

Published: 29 August 2017 Author: Stefan Talmon

Responding to media reports that refugees had been “going on holiday” in the countries from where they fled persecution, Chancellor Angela Merkel said in an interview published on 27 August 2017:

“I can imagine difficult family situations where a return for a few days is understandable. Actually going on holiday in the country in which one is being persecuted is not on. If this is done anyway, this can be a reason to re-examine the asylum decision.”

This statement is in line with the position taken by the Federal Office for Migration and Refugees (BAMF). According to section 72, paragraph 1a, of the Asylum Act, recognition of refugee status shall cease to have effect if the foreigner “voluntarily returns to or settles in the country he left or stayed away from for fear of persecution”. However, a return to the country of persecution does not automatically lead to the cessation of refugee status. The Asylum Act has to be interpreted in line with European law which requires a decision on a case-by-case basis for the withdrawl of international protection. For the decision to withdraw refugee status, the BAMF distinguishes between the various reasons for the return to the country of persecution. The BAMF takes the position that (more…)

Condemnation of certain developments in Eastern Ukraine as “completely unacceptable”

Published: 20 July 2017 Author: Stefan Talmon

In the wake of the Euromaidan revolution in Ukraine in February 2014, the Russian Federation annexed the Crimean peninsula in March of the same year and tensions between pro-Russian groups in the Eastern Ukrainian oblasts of Donetsk and Lugansk and the central government in Kiev developed into an outright armed conflict. In April 2014, the Donetsk and Luhansk People’s Republics were established which, in May of the same year, declared their independence from Ukraine. On 5 September 2014, the Ukrainian Government and the pro-Russian separatists signed a 12-point Protocol in the Belorussian capital Minsk (“Minsk Protocol”) which provided, inter alia, for an immediate ceasefire and the decentralization of power in Ukraine by means of enacting a Law of Ukraine “On interim local self-government order in certain areas of the Donetsk and Lugansk regions”. By January 2015, however, the Minsk Protocol ceasefire had completely collapsed and renewed heavy fighting caused significant concern in Germany, especially after proposals to send armaments to Ukraine were made in the United States of America.

At the initiative of Chancellor Angela Merkel and French President François Hollande the leaders of France, Germany, Russia and Ukraine conducted talks at Minsk on 11 and 12 February 2015 which led to a 13-point package of measures for the implementation of the Minsk Protocol (“Minsk II Agreement”), including an immediate and comprehensive ceasefire monitored by the Organization of Security and Co-operation in Europe (“OSCE”), the withdrawal of heavy weapons, the conduct of local elections in the Donetsk and Lugansk regions and the carrying out of constitutional reform in Ukraine with the adoption of a new constitution providing for decentralization and a special status of certain areas of the Donetsk and Lugansk regions. The Minsk II Agreement was subsequently endorsed by the United Nations Security Council. However, by 2017 neither had constitutional reform had been carried out nor had local elections been held in the separatist areas. (more…)

Banning campaign rallies by Turkish government officials in Germany

Published: 03 July 2017 Author: Stefan Talmon

For many years, foreign government officials and politicians were allowed to address the electorate of their own State at events in Germany. For example, in recent years Turkish President Recep Tayyip Erdogan and other Turkish government officials on several occasions addressed compatriots living in Germany, home to an estimated 1.4 million eligible Turkish voters and a 3 million-strong ethnic Turkish community.

Visits by foreign government officials and politicians were usually notified in advance by the foreign country’s embassy in Berlin but the Federal Government took the view that such visits did not require prior approval. On 17 February 2017, the spokesperson for the Federal Foreign Office explained: “There is no request for approval. But that is also not required by law.” According to the Foreign Office, no decisions were taken at the federal government level. Campaign rallies by foreign politicians and government officials were seen as a matter purely of the German Assembly Act and administrative law more generally which were administered by the federal states and local authorities. That Germany, like any other sovereign State, could decide on who enters or leaves the country, was seen in this context more as a theoretical possibility. In response to a parliamentary question, the Federal Government replied that since the year 2000 (the date referred to in the question) it had never denied entry to a foreign politician or government official who wanted to speak at a campaign rally or other political event. (more…)

Abstention from vote on Chagos Archipelago advisory opinion

Published: 28 June 2017 Author: Stefan Talmon

Prior to 1965, the Chagos Archipelago had been administered as a dependency of the then British colony of Mauritius. On 8 November 1965, the Archipelago was detached from the colony to be administered separately by the United Kingdom as the British Indian Ocean Territory (“BIOT”). Beginning in 1967 the Archipelago was evacuated to allow the United States to use the islands for defence purposes under a lease from the United Kingdom. Mauritius, then without the Chagos Archipelago, became independent on 12 March 1968. Since at least 1980 it has asserted that the detachment of the Chagos Archipelago was unlawful and that it has sovereignty over the archipelago. The United Kingdom has always rejected these claims.

Mauritius tried to raise the question of sovereignty over the Chagos Archipelago before an Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea and before the European Court of Human Rights. However, none of these courts and tribunals was competent to rule on the question of sovereignty.

After the United Kingdom announced that none of the Chagossians who had been expelled in the 1960s to make way for military bases would be allowed to return to live on the Archipelago, the Government of Mauritius declared on 17 November 2016 that: (more…)

Nonexistence of a “State of Palestine”

Published: 02 June 2017 Author: Stefan Talmon

In line with established case-law, the Administrative Court at Frankfurt/Oder ruled in an order issued on 30 May 2017 that there is no “State of Palestine” and, consequently, no Palestinian nationality. Palestinians who have not acquired any other nationality are to be considered as stateless persons. The court held:

“Ethnic Palestinians who have not acquired any other nationality qualify as stateless persons within the meaning of the Convention relating to the Status of Stateless Persons. The reason for this is that there is no State of Palestine which could grant a Palestinian nationality to ethnic Palestinians. Only sovereign States in the sense of international law can grant nationality. Due to their lack of State authority neither the Palestinian autonomous regions nor the Gaza Strip qualify as sovereign States in the sense of international law. This situation has not been changed by the UN General Assembly on 29 August 2012 recognizing Palestine as a State with observer status within the United Nations because this recognition is only relevant within the organization of the United Nations and no UN member State is obliged to recognize a State of Palestine diplomatically.”

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No German support for British sovereignty over Gibraltar

Published: 10 May 2017 Author: Stefan Talmon

During the War of the Spanish Succession in August 1704 Anglo-Dutch forces captured Gibraltar from Spain. In the Treaty of Utrecht of 2/13 July 1713 Spain formally ceded Gibraltar to Great Britain. Article X of the Treaty provided:

“The Catholic King does hereby, for himself, his heirs and successors, yield to the crown of Great Britain the full and entire propriety of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said propriety to be held and enjoyed absolutely with all manner of right for ever, without any exception or impediment whatsoever.”

Gibraltar became a British Overseas Territory. In the 18^th century Spain on several occasions unsuccessfully tried to recapture Gibraltar by force. Since then, all Spanish governments have tried to reclaim the enclave from the United Kingdom. The question of sovereignty over Gibraltar has been an irritant in the relations between the two countries for more than 300 years. (more…)

UNESCO resolution calling into question Israel’s jurisdiction over west Jerusalem

Published: 10 May 2017 Author: Stefan Talmon

In March 2017, when U.S. President Donald Trump was considering relocating the United States Embassy from Tel Aviv to the western part of Jerusalem, Algeria, Egypt, Lebanon, Morocco, Oman, Qatar and Sudan submitted a draft resolution on “Occupied Palestine” to be adopted by the 58-member Executive Board of the United Nations Educational, Scientific and Cultural Organization (UNESCO) at its 201^st session in Paris from 19 April to 5 May 2017. The text of the draft resolution provided, inter alia, that:

“any action taken by Israel, the occupying power, to impose its laws, jurisdiction, and administration on the city of Jerusalem, are illegal and therefore null and void and have no validity whatsoever.”

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Diplomatic asylum on German embassy premises in Istanbul

Published: 03 March 2017 Author: Stefan Talmon

On 7 June 1880, Sultan Abdul Hamid II presented Kaiser Wilhelm II with a property on the western shores of the Bosporus in Istanbul’s Tarabya district for use as a summer residence of the German ambassador to the Ottoman Empire. As the title deed requires Germany to use the property for diplomatic purposes, the property today falls under the authority of the German Embassy in Ankara. (more…)

Tibet or the pitfalls of meeting Richard Gere

Published: 11 February 2017 Author: Stefan Talmon

On 3 February 2017, the deputy government spokesperson announced that Chancellor Angela Merkel would meet Hollywood star Richard Gere in his capacity as chair of the International Campaign for Tibet (ICT) in order “to exchange views about the current situation in Tibet.” The ICT is a non-governmental organization with more than 100,000 supporters which advocates a democratic right to self-determination, the safeguarding of human rights, and the protection of culture and environment in Tibet. Asked whether, in light of Chinese sensitivities with regard to the question of Tibet, the meeting had been discussed and agreed on in advance with the Chinese Government, the deputy spokesperson replied:

“The Federal Government, as you know, generally adheres to the one-China policy. This, of course, also applies to Tibet. However, it is also clear that the Federal Government speaks up for the respect of human rights in China. In this context, it also speaks up, of course, for respecting the minority rights of the Tibetans, and supports the Tibetans’ claim to cultural and religious autonomy within China. In the past, the Federal Government has therefore repeatedly called for a constructive dialogue. This exchange of views should be seen against this background.”

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