Category: Uncategorised

Published: 21 May 2021 Author: Stefan Talmon

Non-legally binding international agreements – that is, instruments that contain political or moral, rather than legal, commitments – have gained increasing importance in State practice in recent years. In many areas of international relations, where in former times States most likely would have concluded a treaty, they are now adopting non-legally binding instruments. Thus, some pressing questions of international law have more recently been dealt with in non-binding instruments such as the Global Compact for Safe, Orderly and Regular Migration, the Joint Comprehensive Plan of Action (JCPoA) for the containment of Iran’s nuclear programme, and the Declaration Against Arbitrary Detentions in State-to-State Relations. Such non-legally binding agreements present a number of advantages for governments compared to treaties: they usually are easier to agree on because of their non-binding nature, they allow negotiators to gloss over political or legal differences more easily as there is no danger of them being subjected to legal scrutiny or dispute settlement mechanisms, they are not subject to parliamentary examination or approval, and they allow for flexibility with regard to form and to the process of their adoption. On the other hand, such instruments may raise false expectations concerning the settlement of disputes or the solution of pressing problems of the international community, create uncertainty in international relations, and give rise to disputes over their legal status as a treaty or non-legally binding agreement. Unlike treaties, which are subject to the customary law rules embodied in the Vienna Conventions on the Law of Treaties, non-legally binding agreements fall outside the realm of international law – their conclusion, amendment, termination, and effects are not governed by international legal rules. They are not subject to the principle of pacta sunt servanda and their breach does not entail international responsibility of States or international organisations. Non-compliance with such non-binding agreements may give rise to political sanctions and cause reputational damage, but there is no room for countermeasures. (more…)

Published: 19 May 2021 Authors: Stefan Talmon and Philippe Allen

On 29 April 2020, the Higher Regional Court of Düsseldorf sentenced German national Carla-Josephine S. to five years and three months in prison for, inter alia, the war crime of enlisting a child under the age of 15 years in an armed group participating in a non-international armed conflict. The 33-year-old mother had left Germany in October 2015 and travelled with her three minor children against the will of the father to Syria. There, she joined the “Islamic State” (“IS”) terrorist organisation and married an IS fighter from Somalia who was subsequently killed. In May 2016, Carla-Josephine S. consented to the military training of her six-year-old son, Hamza, in an “Ashbal al-Khalifah” (Lion cubs of the Caliphate) training camp even though she was concerned that upon completion of the training at the age of nine he could be available to the IS as a fighter. Ashbal training camps were set up in every town and village under IS control. Children stayed there for six months completely isolated from the outside world and were groomed to become IS soldiers, not to join the fighting immediately, but to become the next generation of jihadist fighters. After three days in the training camp, Hamza was brought back to his mother because he was still too young. In the summer of 2016, at the age of seven, the boy was once again taken to a training camp, where he received physical training, was instructed in the use of weapons, and introduced to sentry duties. During this time, Hamza shot with a gun. After a few weeks, he again returned to the defendant. In the summer of 2017, Hamza was sent to a training camp for the third time, from which he returned after two to three weeks. Hamza was killed in December 2018 at the age of eight in a missile strike. (more…)

Published: 11 May 2021 Author: Stefan Talmon

In December 2015, the States Parties to the United Nations Framework Convention on Climate Change (UNFCC) gathered in Paris for their twenty-first Conference of the Parties (COP21). The conference concluded on 12 December 2015 with the adoption of the Paris Agreement, a   legally binding international treaty on strengthening the global response to the threat of climate change. The Agreement was opened for signature at the United Nations Headquarters in New York from 22 April 2016 to 21 April 2017. Germany was among the first States to sign the Agreement on 22 April 2016 and deposited its instrument of ratification with the UN Secretary-General on 5 October 2016. The Paris Agreement entered into force on 4 November 2016. In the Order of the German Federal Constitutional Court of 24 March 2021 concerning various constitutional complaints against the Federal Climate Change Act, the Paris Agreement played a prominent role. In its 110-page long decision, the Court referred no fewer than 40 times to the Agreement or its provisions. The Federal Constitutional Court’s Order provides a good example of the interplay between international law and German domestic law. (more…)

Published: 06 May 2021 Authors: Stefan Talmon and Muskan Yadav

The Chemical Weapons Convention (CWC) prohibits the use of chemical weapons, as well as their development, production, stockpiling and transfer “under any circumstances”. Syria acceded to the Convention on 14 September 2013, declaring that it “shall comply with the stipulations contained [in the Convention] and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic.” The Convention entered into force for Syria 30 days later on 14 October 2013. The CWC goes beyond the Geneva Protocol of 1925, which prohibited the use of chemical weapons only “in war”; that is, in international armed conflict. Although Syria had been bound by the Geneva Protocol since 17 December 1968, its provisions were not applicable to the non-international armed conflict raging in Syria since 2012. (more…)

Published: 04 May 2021 Author: Stefan Talmon

After a creeping military occupation and the holding of a “referendum” in the presence of Russian troops, the Russian Federation on 21 March 2014 formally annexed part of the territory of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol (Crimea). Since that day, Russia has considered the Crimean Peninsula and its territorial waters as its State territory. Germany and the majority of the international community do not recognise the incorporation of Crimea into the Russian Federation. On 27 March 2014, the UN General Assembly underscored that the referendum had no validity and could not form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol. It also called upon all States and international organisations not to recognise the incorporation and to refrain from any action or dealing that might be interpreted as recognising any alteration of the status of the territory in question. The annexation of Crimea and Russia’s military support of the separatists in the Donbas region of eastern Ukraine led to an ongoing conflict between the two countries. After a period of relative calm, fighting between Ukrainian government forces and pro-Russian separatists in the Donbas region intensified and tensions between the two States heightened again at the beginning of 2021. By March, Russia had amassed some 100,000 troops on Ukraine’s border and in annexed Crimea. It also transferred additional warships from the Caspian Sea to the Black Sea and reinforced its military capabilities in the Azov-Black Sea region. On 9 April 2021, it was reported that beginning on 14-15 April the United States would deploy two warships to the Black Sea in a show of support of the Ukrainian Government. (more…)

Published: 27 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. (more…)

Published: 20 April 2021 Authors: Stefan Talmon and Anna Dickmann-Peña

In 1947, the United Nations envisaged the creation of two States in the former British Mandate for Palestine: an independent Arab State and an independent Jewish State. While the State of Israel was established on 14 May 1948 and became a member of the United Nations on 11 May 1949, there is still no independent Arab State. On the contrary, the territories that were to form part of the Arab State – the Gaza Strip and the West Bank, including East Jerusalem – have been under Israeli occupation since 1967. At a meeting of the Palestine National Council (PNC) in Algiers on 15 November 1988, the PNC declared “in the name of God and in the name of the Palestinian Arab people the birth of the State of Palestine on our Palestinian soil with Holy Jerusalem as its capital.” The declaration, however, did not change the situation on the ground. Nevertheless, the “State of Palestine” has been recognized over the years by 139 States, but not by Germany. In 2012, “Palestine” was accorded non-member observer State status in the United Nations. Subsequently, the “State of Palestine” acceded to numerous multilateral treaties, including the Rome Statute of the International Criminal Court.

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Published: 15 April 2021 Author: Stefan Talmon

Germany identified “the women and peace and security agenda” as one of the priorities of its two-year term as a non-permanent member on the UN Security Council in 2019-2020. Its objective was to help women play a stronger role in preventing and managing conflicts, but also to better protect them against sexual violence in conflicts. In an interview published on 25 March 2019, Germany’s permanent representative to the United Nations, Ambassador Christoph Heusgen, stated that sexual violence against women in conflicts was often completely underestimated. He continued: “When you see how it is systematically used as an instrument of war […] the subject suddenly gains security policy relevance. We would like to draw attention to its significance.” In order to do this, Germany used its first presidency of the Security Council in April 2019, organising a so-called “signature event” on “sexual violence in conflict”. (more…)

Published: 13 April 2021 Authors: Stefan Talmon and Mareike Höcker

On 23 January 2019, the Higher Regional Court of Stuttgart sentenced Syrian national Suliman al-S., in the final instance, to four years and nine months in prison for, inter alia, war crimes against humanitarian operations by participating in the kidnapping of a UN peacekeeper. The victim, Carl Campeau, was a Canadian national who served as legal adviser with the United Nations Disengagement Observer Force (UNDOF) which had been established by the UN Security Council in May 1974 to supervise the ceasefire between Israel and Syria on the Syrian Golan Heights. UNDOF continued to be stationed in Syria despite the uprising by local groups against the Government of President Bashar al-Assad in 2011 which, according to the Court, by 2012 had developed into a full-blown civil war. On 17 February 2013, Mr. Campeau left the UNDOF headquarters at Camp Faouar, some 56 km south west of the Syrian capital Damascus, to drive on his own to Damascus on private business. After driving for some 45 minutes, he was stopped at a roadblock manned by fighters of an Islamist group linked to the terrorist organisation Jabhat Al-Nusra. Some members of the group actively participated in the armed struggle against the Government of President Assad. The members of the group also took advantage of the turmoil created by the uprising and set up the roadblock in order to search persons and vehicles for valuables and seize them; in doing so they also wanted to demonstrate their claim to power over the area. The fighters realised that Mr. Campeau belonged to the United Nations. His bulletproof vest bore a label with the letters “UN”. In addition, he carried a UN identity card and drove a white Toyota which displayed the big black letters “UN” on both sides of the vehicle and carried corresponding number plates. Mr. Campeau was abducted and held for some eight months in a villa south west of Damascus. His captors demanded – without success – a US$ 7 million ransom from the United Nations, the Canadian Government, and the hostage’s family. Campeau said he was abused and forced to convert to Islam by his captors before he managed to escape on 16 October 2013. (more…)

Published: 09 April 2021 Author: Stefan Talmon

The health conditions in the territories occupied by Israel has been a separate agenda item on the programme of the annual meetings of the World Health Assembly (WHA) since 1968. The WHA is the main governing body of the World Health Organisation (WHO), a specialised agency of the United Nations. Since 2006, the agenda item has been named “Health conditions in the occupied Palestinian territory, including east Jerusalem, and in the occupied Syrian Golan”. Under this agenda item, the WHA initially adopted an annual resolution in which it, inter alia, expressed its concern at the deterioration of the economic and health conditions in the occupied Arab territories, as well as the humanitarian crisis resulting from the continued occupation and the severe restrictions imposed by “Israel, the occupying power”, and addressed specific “demands” to Israel, which were not health-related in all cases. For example, the WHA demanded “that Israel, the occupying power, immediately put an end to the closure of the occupied Palestinian territory”, “respect and facilitate the mandate and work of UNRWA and other international organizations”, or “that Israel dismantle and stop the construction of the wall and abide by its legal obligations mentioned in the advisory opinion rendered on 9 July 2004 by the International Court of Justice”. The resolutions also referred to an “Israeli attack” on the Gaza Strip, the destruction of “establishments by Israeli military operations” and urged Member States and others to “to remind Israel, the occupying power, to abide by the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949”. (more…)