Uncategorised Archives - Page 30 of 31 - GPIL - German Practice in International Law

Reporters Without Borders lodges ECHR application against Germany

Published: 1 December 2017 Author: Stefan Talmon

On 30 November 2017, Reporters Without Borders Germany (RSF) lodged a complaint with the European Court of Human Rights over the mass surveillance practices of Germany’s foreign intelligence agency BND. RSF complained that the BND had been spying on its email traffic with foreign partners, journalists and other persons as part of the agency’s signals intelligence surveillance.

The Federal Administrative Court had rejected RSF’s lawsuit against the BND’s mass surveillance in a decision rendered on 14 December 2016. The Federal Constitutional Court refused to admit RSF’s constitutional complaint against this decision on 26 April 2017 on the grounds that RSF had failed to adequately demonstrate that the organisation was directly affected by the BND’s surveillance activities. The Constitutional Court’s decision was transmitted to RSF by letter, dated 30 May 2017, which was received on 31 May 2017. By lodging the application on 30 November 2017, RSF thus stayed within the six month time limit for making such an application (see Article 35, paragraph 1, ECHR).

RSF claimed a violation of Article 13 (right to an effective remedy), Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights.

The text of the application (in German) may be found here. (more…)

Trial of Chinese civil rights lawyer Jiang Tianyong

Published: 24 November 2017 Author: Stefan Talmon

Jiang Tianyong was a prominent Chinese civil rights lawyer who took on politically sensitive cases before being disbarred to practice law in 2009. He then became a legal activist advising dissidents and activists and publicizing the plight of lawyers detained in China. Jiang was detained on 21 November 2016. In March 2017, he apparently gave an interview to a State newspaper and was shown on state TV saying that he had made up a story about a lawyer, Xie Yang, being tortured in custody. On 22 August 2017, he was put on trial in a local court in Hunan province on charges of incitement to subversion of State power.

On 25 August 2017, the German ambassador to China made the following statement on the trial of Jiang Tianyoung:

“We are closely following the trial of Chinese human rights lawyer Jiang Tianyong, the hearings of which took place in Changsha this week. For years, Jiang Tianyong has campaigned with great commitment for human rights and the rule of law in China, including the lawyers and activists affected by the so-called ‘709 crackdown’.

We are concerned that throughout the proceedings Jiang Tianyong has not been allowed access to the lawyers of his own choosing and that he was obviously prejudged before his trial had even begun by means of a ‘confession’ aired by Chinese media. Under these circumstances, a fair trial is impossible. We call on the Chinese institutions to ensure proceedings are conducted with due process and in adherence with relevant United Nations conventions, and to enforce the stated objective of the Chinese leadership of strengthening the rule of law.

Ever since his arrest in November 2016, the Federal Government has raised Jiang Tianyong’s case in high-level meetings with Chinese officials. Germany will continue to take an active interest in his fate.”

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Suing Germany over the genocide in Namibia in U.S. courts: the pitfalls of serving a summons on the German Government

Published: 23 November 2017 Author: Stefan Talmon

On 5 January 2017, representatives of several Ovaherero and Nama organizations filed a class action complaint against Germany in the United States District Court for the Southern District of New York. They requested the court to award damages for genocide carried out more than a century ago by German colonial troops in today’s Namibia more than a century ago, and to declare that the exclusion of the plaintiffs and other lawful representatives of the Ovaherero and Nama people from the ongoing talks between the governments of Namibia and Germany about an official apology by Germany for the genocide and potential payments by Germany to Namibia constituted a violation of international law. The summary of complaint read in part:

“Plaintiffs bring this action on behalf of all the Ovaherero and Nama peoples for damages resulting from the horrific genocide and unlawful taking of property in violation of international law by the German colonial authorities during the 1885 to 1909 period in what was formerly known as South West Africa, and is now Namibia. Plaintiffs also bring this action to, among other things, enjoin and restrain the Federal Republic of Germany from continuing to exclude plaintiffs and other lawful representatives of the Ovaherero and Nama people from participation in discussions and negotiations regarding the subject matter of this Complaint, in violation of plaintiff’s rights under international law, including the U.N. Declaration on the Rights of Indigenous People to self-determination for all indigenous peoples and their right to participate and speak for themselves regarding all matters relating to the losses that they have suffered.”

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Non-recognition of Catalonia’s unilateral declaration of independence

Published: 29 October 2017 Author: Stefan Talmon

Catalonia is an autonomous region within Spain with a strong independence movement. On 1 October 2017, the Catalan regional authorities held an independence referendum which had been declared illegal by the Spanish constitutional court. The Catalan authorities claimed that 90 percent of voters supported independence, but turnout was only 42.3 percent and there were reports of irregularities. On the evening of the referendum, Catalan regional President Carles Puigdemont, declared:

“With this day of hope and suffering, the citizens of Catalonia have won the right to an independent state in the form a republic. My government, in the next few days will send the results of today’s vote to the Catalan parliament, where the sovereignty of our people lies, so that it can act in accordance with the law of the referendum.”

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Immunity of German diplomats in the United States

Published: 19 October 2017 Author: Stefan Talmon

German diplomat‘s daughter stabs boy at school

On 5 September 2017 an incident in the Washington D.C. area attracted a fair bit of attention in the United States. The 12-year-old daughter of a member of the staff of the German embassy in the United States stabbed a 13-year-old boy twice in the shoulder with scissors at the British Independent School in Georgetown. The boy had to be rushed off to hospital but the injuries were not life-threatening. A spokesperson for the Metropolitan Police Department declared:

“The suspect has been identified, however, because of her diplomatic status, there’s going to be no arrest at this time. Any questions regarding the diplomatic status can be referred to the State Department.”

There were also no criminal charges brought against the girl. A spokesperson for the German embassy stated that the embassy would conduct its own review. If it were discovered that the parents had contributed in any way to the stabbing, they could be subject to disciplinary action. (more…)

Arbitration between Croatia and Slovenia

Published: 01 October 2017 Author: Stefan Talmon

Croatia and Slovenia have been engaged in a territorial and maritime dispute since 1991, when the two States seceded from the Socialist Federal Republic of Yugoslavia. On 4 November 2009, the governments of the two States signed an Arbitration Agreement by which they submitted their dispute to arbitration. As part of the agreement, Slovenia, which had been a member of the European Union since 1 May 2004, lifted its blockade of Croatia’s membership of the EU. Croatia joined the organization on 1 July 2013. The parties exchanged three rounds of written submissions and oral hearings were held in June 2014. During the deliberation stage of the proceedings it emerged that the arbitrator appointed by Slovenia and one of the two agents of Slovenia had colluded to influence the outcome of the arbitration. As a consequence, both the arbitrator appointed by Slovenia and the Slovenian agent resigned.

On 30 July 2015, Croatia notified Slovenia of the termination of the Arbitration Agreement in accordance with Article 60, paragraph 1, of the Vienna Convention on the Law of Treaties on the ground that Slovenia had engaged in one or more material breaches of the Arbitration Agreement. The next day, Croatia informed the Tribunal that it would no longer participate in the arbitration, as the arbitration process had been totally and irreversibly compromised. As a consequence, the arbitrator appointed by Croatia resigned. (more…)

The genocide in Namibia: genocide in a historical-political or in a legal sense?

Published: 23 September 2017 Author: Stefan Talmon

In 1904, the Herero and Nama tribes revolted against German colonial rule in the territory of today’s Namibia. The revolt was brutally crushed by imperial German troops. It is estimated that, between 1904 and 1908, some 65,000 Herero (80 percent of the tribe’s population) and some 10,000 Nama (50 percent of the tribe’s population) were killed, starved to death or died in camps. The events have been referred to as “the first genocide of the 20^th century”.

While Germany acknowledged its “moral and historical responsibility to Namibia”, it has tried to avoid referring to the events as “genocide”. The German government has been fulfilling this responsibility through particularly close development cooperation. Thus, the amount of development aid received by Namibia from Germany has been the highest per capita in Africa.

On 29 June 2017, the German federal parliament, with the votes of the governing parties, rejected a motion which read, inter alia: (more…)

Venezuela protests German interference in internal affairs

Published: 21 September 2017 Author: Stefan Talmon

Amid a political crisis marked by almost daily demonstrations and clashes between protesters and the security forces, which have seen more than 100 people killed so far, President Nicolás Maduro ordered elections for a national constituent assembly to draft a new constitution – a move rejected by the opposition. The opposition, who blamed President Maduro for an economic crisis that caused shortages of food, medicine and basic supplies, instead demanded new elections to remove Maduro from power. Despite a boycott by the opposition, a vote for the national constituent assembly was held on 30 July 2017 amid violent protests. President Maduro argued that the new constitution would bring peace to a divided country, while the opposition called it an assault on democracy. Several opposition leaders were detained. The newly constituted National Constituent Assembly removed the country’s chief prosecutor, Luisa Ortega Diaz, from office and assumed the legislative powers of the opposition-controlled National Assembly, thus, as a matter of fact, neutralizing the parliament that had been democratically elected in 2015. The opposition accused President Maduro of a constitutional coup d’état.

On 2 August 2017, the German Government criticized President Maduro for the escalation of violence and called for the immediate release of several opposition politicians in Venezuela. During a press conference the deputy government spokesperson said: (more…)

Towards an agreement to combat marine litter

Published: 13 September 2017 Author: Stefan Talmon

Germany considers marine litter to be one of the most pressing global environmental problems of our time. An estimated 140 million tonnes of waste are found in the oceans, with plastic packaging and plastic residues accounting for up to 75 percent of ocean waste. The Pacific Ocean is the most affected by marine litter with a “garbage patch” of some 700,00 km², twice the size of Germany. Over 80 percent of marine litter has land-based sources. Plastic particles in the oceans affect all forms of marine life, from fish, cetaceans, corals, zooplankton, to sea birds. In addition, plastic waste affects cooling water and filtering systems in thermal power plants and desalination plants.

Germany has been one of the driving forces in combatting marine litter. Under Germany’s presidency, the Group of Seven countries (G7) in June 2015 adopted the “G7 Action Plan to Combat Marine Litter”. In their Summit Declaration the leaders of the G7 acknowledged that “marine litter, in particular plastic litter, poses a global challenge, directly affecting marine and coastal life and ecosystems and potentially also human health.”

On 30 March 2017, the Federal Parliament called upon the Government

“to agree measures against marine litter within the group of G20 countries. In addition, [the federal government] is to pursue the conclusion of an international convention which will regulate the flow of materials under national legislation within the framework of a recycling-based economy, in order to prevent the uncontrolled introduction of plastics into the environment.”

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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…)