Category: Uncategorised

Published: 09 December 2020 Author: Stefan Talmon

On 24 September 2020, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action brought by representatives of several Ovaherero and Nama organizations against the Federal Republic of Germany. The plaintiffs had sought damages for the enslavement and genocide of the Ovaherero and Nama peoples more than a century ago by German colonial troops in what is now Namibia, as well as for property they alleged imperial Germany expropriated from the land and peoples. The judgment brought an end to legal proceedings that lasted more than three years and nine months. (more…)

Published: 03 December 2020 Author: Stefan Talmon

Mahan Air is a privately owned Iranian airline which was founded in 1991. It is Iran’s second largest carrier and operates scheduled domestic and international flights to the Far East, Middle East, Central Asia, and Europe. At the start of 2019, Mahan Air regularly serviced destinations in four Western European countries: France, Germany, Italy, and Spain. The airline had operated direct flights between Tehran and Düsseldorf since 2003 and had offered air services between the Iranian capital and Munich since 2015. At the same time, Mahan Air had been subject to U.S. sanctions since October 2011. The United States accused the airline of providing financial, material, and technological support to Iran’s Islamic Revolutionary Guard Corps-Quds Force (IRGC-QF), which had been designated by the United States in 2007 for providing material support to terrorism. (more…)

Published: 01 December 2020 Author: Stefan Talmon

In February 2011, in the early stages of the civil war in Libya, the UN Security Council imposed an arms embargo on the country. The embargo was tightened in June 2016 with the adoption of resolution 2292 (2016). Acting under Chapter VII of the UN Charter, the Security Council authorized Member States, acting nationally or through regional organizations, to inspect on the high seas off the coast of Libya vessels bound to or from Libya which they have reasonable grounds to believe are carrying arms or related materiel to or from Libya. This authorization was subsequently renewed on an annual basis, most recently on 5 June 2020 with the adoption of resolution 2526 (2020). These resolutions however, did not stop the influx of arms into Libya. The Security Council established a Panel of Experts to examine and analyse information regarding the implementation of the arms embargo; in particular, incidents of non-compliance. In its report of November 2019, the Panel of Experts remarked that “the arms embargo was ineffective, and resulted in regular maritime and air transfers to Libya of military materiel.” The Panel identified Jordan, Turkey and the United Arab Emirates as routinely and sometimes blatantly supplying weapons to the parties to the conflict, employing little effort to disguise the source. (more…)

Published: 26 November 2020 Author: Julian Hettihewa

As far back as 1993, the UN Security Council called upon the Democratic People’s Republic of Korea (DPRK) – North Korea – to “honour its non-proliferation obligations” under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Since 2006, the Council, acting under Chapter VII of the UN Charter, has adopted numerous resolutions condemning the DPRK for launching ballistic missiles and conducting nuclear tests, and prohibited the country from doing so. The prohibition covers ballistic missile technology for both military and civilian purposes. The DPRK was thus, for example, prohibited from launching satellites into space regardless of any specific objective. The prohibition was understood as encompassing all activities involving ballistic missile technology. (more…)

Published: 24 November 2020 Author: Sebastián Mantilla Blanco

In Germany, no discussion about international investment protection escapes the case of Vattenfall v. Federal Republic of Germany. On 14 May 2012, Swedish investor Vattenfall AB and four other companies filed a request for arbitration against Germany with the International Centre for Settlement of Investment Disputes (ICSID) under Article 26 of the Energy Charter Treaty (ECT). The claimants contended that Germany’s Thirteenth Act Amending the Atomic Energy Act of 31 July 2011 was in breach of investment protection standards set forth by the ECT. The Act accelerated the phase-out of the peaceful use of nuclear energy on German soil in response to the tsunami of March 2011 and the resulting collapse of several reactors at a nuclear power plant in Fukushima, Japan. In particular, the Act set out fixed dates for the closing of German nuclear power plants, which meant that the electricity output allowances previously allocated to individual plants could not be spent prior to the established shut down deadlines. Vattenfall also challenged the Act before the German Federal Constitutional Court, but it was the arbitration under the auspices of ICSID that attracted widespread media attention because of the more than 6 billion euros of damages, including interest, claimed in these proceedings. (more…)

Published: 21 November 2020 Author: Stefan Talmon

On 20 November 1945, the trials of 24 high ranking German officials started before the  International Military Tribunal in courtroom 600 at Nuremberg’s Palace of Justice. The Nuremberg Tribunal had been established by the four main victors of the Second World War:  the United States, the Soviet Union, the United Kingdom, and France.

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Published: 19 November 2020 Author: Stefan Talmon

On 10 January 2019, Nicolás Maduro was sworn in for a second term as President of Venezuela after elections that were boycotted by the opposition and accompanied by claims of vote-rigging. Several countries declared that they would not recognize Mr. Maduro’s presidency as they considered the electoral process as lacking democratic legitimacy. On 15 January 2019, the Venezuelan National Assembly declared that Nicolás Maduro had taken the presidency illegally and therefore left the office vacant. Amongst widespread opposition protests, on 23 January 2019 Juan Guaidó, the President of the National Assembly, declared himself Interim President of Venezuela, invoking Article 233 of the Venezuelan Constitution of 1999. The opposition-led National Assembly had been elected on 6 December 2015, and remained the only democratically elected constitutional institution in Venezuela. It had elected Mr. Guaidó as its president on 5 January 2019. (more…)

Published: 17 November 2020 Author: Stefan Talmon

On 1 July 1997, the United Kingdom restored Hong Kong to Chinese sovereignty under a “one country, two systems” formula that provided for of a large degree of autonomy of the Hong Kong Special Administrative Region (HKSAR) within China. In particular, it was agreed that Hong Kong would be vested with independent judicial power, including that of final adjudication, and that the laws in force in Hong Kong would remain basically unchanged. When in February 2019 the Government of the HKSAR introduced a Bill which provided, inter alia, for extradition of fugitive offenders to the Chinese mainland, people in Hong Kong feared the undermining of Hong Kong’s separate legal system and its guarantees of rights and freedoms, many of which were not enjoyed in mainland China. In particular, it was feared that the proposed extradition arrangements would allow the Chinese Government to stifle political dissent in Hong Kong. The introduction of the Bill triggered multiple protests. In June 2019, large-scale protests led to violent clashes between demonstrators and the police. The German Federal Government expressed its concern over the Bill to the Hong Kong Government and announced that it was examining whether the current bilateral extradition agreement between Germany and Hong Kong could retain validity if the planned extradition law was adopted in its current form. On 15 June 2019, the Chief Executive of the HKSAR announced the suspension of the proposed Bill. However, violent protests continued, culminating in the storming of the HKSAR Legislative Council building and forcing the shutdown of the Hong Kong airport. Protestors called for a complete withdrawal of the Bill and demanded the resignation of the Chief Executive and the election of the Chief Executive by universal suffrage as foreseen in Hong Kong’s Basic Law. (more…)

Published: 12 November 2020 Author: Stefan Talmon

In terms of information and communication technology (ICT), Germany, like most other States, is almost completely dependent on foreign providers. Most hardware and software critical to Germany’s digital infrastructure is developed and produced abroad. German corporate and government data are stored on cloud resources located abroad or owned and controlled by foreign corporations. The cloud platform industry is largely dominated by U.S. corporations such as Amazon Web Services (AWS), Microsoft Azure, Google Cloud, or IBM Cloud, which are subject to U.S. law. For example, the 2018 U.S. CLOUD Act requires these companies “to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” This allows U.S. law enforcement authorities access to all the data stored on clouds operated by these companies. (more…)

Published: 10 November 2020 Authors: Patrick Wittum and Stefan Talmon

In November 2017, nine Syrian refugees living in Germany filed a criminal complaint with the Federal Prosecutor General’s Office concerning crimes against humanity and war crimes in Syria. The complaint was directed against ten high-ranking officials of the Syrian Air Force Intelligence Directorate, including its head, Major General Jamil Al-Hassan. The Federal Prosecutor General commenced investigative proceedings for crimes against humanity in the case of General Hassan in May 2018. He was suspected of several deeds committed individually, jointly with another or through another person, and as a military commander between 29 April and August 2013 as part of a systematic and widespread attack directed against a civilian population in Syria. These deeds included killing at least 352 people, torturing a yet to be determined number of people, causing other physical or mental harm to a yet to be determined number of people, and severely depriving, in contravention of a general rule of international law, a yet to be determined number of people of their physical liberty. In June 2018, the Federal Court of Justice issued an international arrest warrant for General Hassan at the request of the Federal Prosecutor General. This was the first time since the beginning of the Syrian civil war in 2011 that a country was prosecuting a high-ranking Syrian Government official for crimes against humanity. In November 2018, France followed suit, issuing international arrest warrants for senior Syrian intelligence and government officials, including for General Hassan. (more…)