GPIL – German Practice in International Law

Published: 02 March 2021 Author: Stefan Talmon

Recent years have seen an increase in the practice of arbitrary arrest and detention of foreign nationals by States in order to influence the conduct of the State of their nationality. Persons living, working, or travelling abroad are being detained and falsely charged and sentenced simply because of their nationality in order to gain leverage in inter-State relations. Quite often these are thinly veiled exercises of extortion. Germany considered itself at the receiving end of such practices. In response to the arrest of several German nationals (both single and dual nationals) in Turkey, Federal Foreign Minister Sigmar Gabriel said on 20 July 2017 that “German citizens are no longer safe from arbitrary arrest in Turkey” and that “arbitrary politically motivated expropriations [of German corporate investments in Turkey] are not only a threat but have actually occurred.” In an interview three weeks later, he stated with regard to Turkey that there “are now nine Germans who have no idea what crimes they are being accused of or who are having to fight far‑fetched accusations.” (more…)

Published: 25 February 2021 Authors: Stefan Talmon and Anneliese Quast Mertsch

The provisional application of treaties is a long-established legal mechanism that is often used by States and international organizations to give immediate effect to all or some of the provisions of a treaty prior to the completion of all internal and international requirements for its entry into force. The question of whether a treaty should be provisionally applied usually arises already at the negotiating stage allowing for a clause on provisional application to be included in the text of the treaty. However, provisional application may also be agreed upon at a later stage in some other manner. The provisional application of treaties is dealt with in Article 25 of the 1969 Vienna Convention on the Law of Treaties (1969 Vienna Convention), and in the corresponding provision of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986 Vienna Convention). The provisional application of treaties is a complex matter involving a number of legal questions that merit in-depth analysis. The International Law Commission (ILC) has studied the topic since 2012 and requested States to provide it with information on their position and practice on the topic. Germany responded twice to these requests.

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Published: 23 February 2021 Author: Stefan Talmon

On Lunar New Year’s Eve on 7 February 2016, violent riots took place in Hong Kong’s Mong Kok district. During the riots, protesters hurled bricks prised from pavements at police and set fire to cars and rubbish bins. Police fired two warning shots into the air. More than 130 people were injured in the clashes, including some 90 police officers, and 64 protesters were arrested. In May 2018, nine of the protesters were sentenced by a Hong Kong Magistrates’ Court to up to four years and three months in prison. In Hong Kong, rioting carries a maximum sentence of 10 years imprisonment. (more…)

Published: 19 February 2021 Author: Stefan Talmon

One of the important and demanding tasks of the elected members of the UN Security Council is to chair the Council’s sanctions committees. During its tenure on the Council in 2019-2020, Germany chaired, inter alia, the Libya Sanctions Committee, sometimes also referred to as the “1970 Committee” because it was established on 26 February 2011 pursuant to resolution 1970 (2011). The Committee is tasked with overseeing the implementation of the panoply of restrictive measures imposed by the Security Council on Libya. In particular, the Committee was to monitor compliance with the two-way Libyan arms embargo. It was to report to the Security Council on its work. The Committee comprises all 15 members of the Security Council and makes its decision by consensus. If consensus cannot be reached, the matter may be referred to the Security Council. The Committee is supported by a Panel of Experts which assists the Committee in carrying out its mandate. Its members are appointed by the UN Secretary-General in consultation with the Committee. The Panel of Experts gathers, examines, and analyses information regarding the implementation of the sanctions measures and provides to the Security Council interim reports and final reports with its findings and recommendations. (more…)

Published: 16 February 2021 Authors: Stefan Talmon and Philip Wimmer

The Kurdistan Workers’ Party or PKK (Partiya Karkerên Kurdistanê) is a Kurdish organization operating mainly in Turkey. It was founded in 1978 by a group of students around Abdullah Öcalan, dedicated to the creation of an independent, communist Kurdish State in south-eastern Turkey. With between 25 and 35 million Kurds living in the border regions of Turkey, Iraq, Syria, Iran and Armenia, the Kurds make up the fourth largest ethnic group in the Middle East but have never succeeded in establishing their own nation State. In order to achieve its goals, the PKK launched an armed struggle against the Turkish Government in 1984, targeting Turkish military and security personnel but also civilians. Since the start of the conflict, over 40,000 people have been killed. (more…)

Published: 11 February 2021 Author: Stefan Talmon

Under Article 12(2)(a) of the Rome Statute of the International Criminal Court (Rome Statute), the International Criminal Court (ICC) may exercise its jurisdiction if the “State on the territory of which the conduct in question occurred” is a State Party to the Rome Statute. On 2 January 2015, the State of Palestine deposited its instrument of accession to the Rome Statute with the Secretary-General of the United Nations pursuant to Article 125(2) of the Statute. On 22 May 2018, Palestine referred the “Situation in the State of Palestine” to the Prosecutor pursuant to Articles 13(a) and 14 of the Statute. Palestine requested the Prosecutor to investigate crimes within the Court’s jurisdiction, “committed in all parts of the territory of the State of Palestine” since 13 June 2014. In its referral the State of Palestine specified that its territory comprises “the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.” As both the accession of the State of Palestine to the Rome Statute and the referral of the situation to the Prosecutor were controversial, on 22 January 2020 the Prosecutor sought a ruling from the Court under Article 19(3) of the Rome Statute on the Court’s territorial jurisdiction in Palestine. (more…)

Published: 09 February 2021 Author: Stefan Talmon

On 5 October 1929, the three Jewish-owned Frankfurt-based art dealer firms of J.&S. Goldschmidt, I. Rosenbaum, and Z.M. Hackenbroch formed a consortium to purchase a unique collection of 82 medieval relics and devotional objects known as the Welfenschatz, or Guelph treasure, from the Duke of Brunswick-Lüneburg. The treasure of the German Guelph dynasty dates back to the early days of the Holy Roman Empire and occupies a unique position in German history and culture. The consortium intended to resell the Welfenschatz for a profit. However, several weeks after the consortium had bought the treasure, the U.S. stock market crashed leading to a worldwide economic depression which, in turn, caused a fall in art prices. Giving up its initial hope of selling the collection as a whole, the consortium began to sell off pieces to individual collectors. By 1931, about half the treasure had been sold to museums and individuals in Europe and the United States. The rest of the Welfenschatz was stored in Amsterdam. In 1934, about a year after the Nazi party rose to power in Germany, the Dresdner Bank approached the consortium with an offer for the remaining pieces on behalf of the German state of Prussia, which was headed by Nazi leader Hermann Göring – Adolf Hitler’s designated successor. The consortium and the bank negotiated for over a year before agreeing on 14 June 1935 on a price of 4,250,000 Reichsmark, about halfway between the two sides’ initial offers. (more…)

Published: 04 February 2021 Author: Stefan Talmon

One of Germany’s priorities for its two-year stint as a non-permanent member of the UN Security Council in 2019-2020 was the strengthening of the humanitarian system. Its focus was to be “on improving the application of international humanitarian law, protecting humanitarian aid workers, ensuring humanitarian access and improving the protection of civilian populations in armed conflicts.” It was thus no coincidence that Germany devoted the first day of its Council presidency on 1 April 2019 to the respect for international humanitarian law and humanitarian principles. In the morning of that day, it convened an Arria-formula meeting on the protection of humanitarian and medical personnel in armed conflict which was co-chaired by Germany’s Federal Foreign Minister and his French counterpart. This meeting collected testimonies and proposals for concrete actions from UN agencies and NGOs. This was followed in the afternoon by an open Council meeting which heard a briefing on international humanitarian law and safeguarding the humanitarian space: that is, the ability of those who provide assistance to victims of armed conflicts to carry out their mission safely and effectively. At the meeting, Federal Foreign Minister Heiko Maas identified three points with regard to humanitarian space: (more…)

Published: 02 February 2021 Author: Mirjam Reiter

As a consequence of growing nationalist and populist tendencies in several countries in recent years, Germany identified a “worldwide crisis of multilateralism”. To counter this development, in the summer of 2018 Germany’s Federal Foreign Minister, Heiko Maas, held talks with his counterparts in several countries, including Canada, France and Japan, on what could be done to prevent the disintegration of the international order. This gave rise to the idea of “an alliance for multilateralism” – a network of partner countries who stand up together for the preservation and further development of the rules-based order and who defend multilateralism. Foreign Minister Maas defined multilateralism as follows: (more…)

Published: 28 January 2021 Author: Christian Richter

On 18 October 2019, the German Federal Foreign Office presented a diplomatic note to the Greek Ambassador to Berlin, formally rejecting Greece’s demands for the payment of war reparations and compensation for the First and Second World Wars. The Federal Government thereby responded to a note delivered by the Greek Ambassador on 4 June 2019, requesting the opening of negotiations on the Greek demands. In a statement to German news agency dpa on the same day, a spokesperson for the Federal Foreign Office explained: (more…)