GPIL – German Practice in International Law

Published: 10 January 2018 Author: Stefan Talmon

At the end of 2017, the research vessel “R/V Meteor”, owned by the Federal Republic of Germany, conducted marine scientific research with permission from the Greek Ministry of Foreign Affairs in the Aegean Sea. The research involved taking core samples from the seabed. On 29 December 2017, while the vessel was operating in the sea area between the Greek islands of Samothrace and Lemnos, two Turkish warships approached the “R/V Meteor” and warned the vessel that it was conducting research in Turkish waters without permission and asked it to leave or seek permission from the Turkish authorities in order to continue its research. While the details of the case are unknown, the Greek media speculated that in order to complete its research programme the master of the vessel requested permission from Turkey to continue research in the Aegean Sea. According to the official project plan the “R/V Meteor” was scheduled to conduct research, inter alia, in the sea area off Kythira from 6 January 2018.

On 3 January 2018, the Turkish authorities issued two navigational telex – Navtex 0020/18 and 0021/18 – which informed seafarers that the “R/V Meteor” would carry out scientific research until further notice in nine designated sea areas in the central and southern Aegean Sea within a triangle formed by the Greek islands of Lemnos, Carpathos, and Kythira. (more…)

Published: 6 January 2018 Author: Stefan Talmon

In his annual New Year’s Day Address, North Korean leader Kim Jong Un warned that the whole of the United States mainland was within the range of North Korea’s nuclear weapons and that “the nuclear button was always on [his] office desk all the time”. At the same time he signalled that he was open to talks with South Korea. He said:

“Now it is not time for the north and the south to turn their backs on each other and merely express their respective standpoints; it is time that they sit face to face with a view to holding sincere discussions over the issue of improving inter-Korean relations by our nation itself and seek a way out for its settlement in a bold manner.

As for the Winter Olympic Games to be held soon in south Korea, it will serve as a good occasion for demonstrating our nation’s prestige and we earnestly wish the Olympic Games a success. From this point of view we are willing to dispatch our delegation and adopt other necessary measures; with regard to this matter, the authorities of the north and the south may meet together soon.”

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Published: 4 January 2018 Author: Stefan Talmon

On 28 December 2017, protests over food price rises and corruption began in the north-eastern Iranian city of Mashhad. Protests quickly spread across the whole country and took on a wider anti-government sentiment. On 30 December 2017, protesters at Tehran University called for Supreme Leader Ayatollah Ali Khamenei to step down and there were violent clashes with police in multiple cities. On 1 January 2018, it was reported that protesters were attacking police stations and that at least 12 people, including a policeman, had been killed and hundreds had been arrested. In the evening on that day, Foreign Minister Sigmar Gabriel commented as follows on the protests:

“I am very concerned by the latest developments in Iran and by the reports of further deaths among the demonstrators and the large number of arrests. We call on the Iranian Government to respect the demonstrators’ freedom of assembly and their right to voice their opinions freely and peacefully.

Following the confrontations over the past few days, it is all the more important for all sides to refrain from taking any violent action.”

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Published: 03 January 2018 Author: Stefan Talmon

In 2017 Germany signed more than 60 bilateral agreements and undertook treaty action with regard to nine multilateral treaties. In addition, Germany signed numerous non-binding Memoranda of Understanding and Declarations of Intent. The following is an incomplete list compiled from public sources:

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Published: 31 December 2017 Author: Stefan Talmon

In response to a parliamentary question the Federal Government declared on 26 January 2018 that Germany maintains more than 220 diplomatic and consular missions abroad. In the following 43 countries the Federal Republic of Germany is not represented:

“Andorra, Antigua and Barbuda, Bahamas, Barbados, Belize, Bhutan, Cabo Verde, Central African Republic, Comoros, Cook Islands/Tokelau and Niue, Dominica, Fiji, Gambia, Grenada, Guinea-Bissau, Guyana, Kiribati, Lesotho, Liechtenstein, Maldives, Marshall Islands, Mauritius, Micronesia, Monaco, Nauru, Palau, Papua New Guinea, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Seychelles, Solomon Islands, Somalia, Suriname, Swaziland, Timor-Leste, Tonga, Tuvalu, Vanuatu.”

There are no German diplomatic missions in these countries. Diplomatic relations with these countries are maintained through non-resident ambassadors based in neighbouring countries. The only country Germany does not maintain diplomatic relations with is Bhutan. (more…)

Published: 31 December 2017 Author: Stefan Talmon

In response to a parliamentary question on 26 January 2018 the Federal Government declared that German diplomatic and consular missions provided consular protection to 2,867 German nationals in prison, custody or detention in foreign countries in 2017. The right to provide consular protection to nationals in prison, custody or detention is enshrined in Article 36, paragraph 1(c) of the Vienna Convention on Consular Relations. The number of cases in which Germany provided consular protection has constantly risen over the years (2012: 2,459 cases; 2013: 2,636 cases; 2014: 2,720 cases; 2015: 2,633 cases; 2016: 2,694 cases). On the practice of providing consular protection the Federal Government declared:

“In addition to regular visits by consular officers and the arrangement for legal representation, consular assistance generally includes – if necessary and desired –  liaison with relatives, legal counsel and the authorities of the receiving State. The diplomatic and consular missions also observe whether the foreign authorities and courts adequately adhere to principles of the rule of law in criminal proceedings against German nationals and take up possible grievances with the local authorities.”

The Federal Government also declared that it does not maintain any statistics on Germans being detained abroad for political reasons.

The exercise of diplomatic protection always depends on the individual case. For example, in the high-profile case of German-Turkish journalist Deniz Yücel, who was held in Turkey in pre-trial detention without formal indictment for more than a year, diplomatic and consular officers visited the detainee eight times, that is, at intervals of every six weeks. The Federal Government, however, admitted that “this perhaps was not, so to speak, a classic case of consular assistance.”

Published: 29 December 2017 Author: Stefan Talmon

On 26 December 2017, Wu Gan, a Chinese blogger and human rights activist, was sentenced to eight years’ imprisonment for subversion of State power. In a separate case on the same day, human rights lawyer Xie Yang was found guilty of inciting subversion of State power but was exempted from punishment because he had previously pleaded guilty to the charges. The next day, the embassies of Germany and the United States of America in Beijing issued a joint statement on the sentencing of Wu Gan and Xie Yang which read as follows:

“The embassies of Germany and the United States are deeply disappointed that Chinese human rights defender and blogger Wu Gan and Chinese attorney Xie Yang have been convicted on vague charges of ‘subverting state power’, and that Wu has been sentenced to eight years in prison. We call on the Chinese authorities to release Wu immediately. As Xie has been exempted from punishment, we urge China to allow Xie to resume his professional activities without preconditions and be free of any restrictions.

For many years, Xie Yang has helped fellow Chinese citizens defend their rights under Chinese law. He was among those lawyers and other rights defenders, including Wu Gan, targeted by Chinese authorities in the so-called ‘709’ crackdown that began in July 2015. Wu was held in pretrial detention for more than two years and denied access to independent legal counsel until December 9, 2016. Xie was held incommunicado for six months before being charged, then was jailed for 18 months longer before appearing at an unannounced trial in May. During the trial, Xie read a scripted confession that directly contradicted his previous signed statement describing how he was treated while in detention. The court appointed an attorney to represent Xie and barred him from choosing his own counsel, after authorities detained his original attorney in May 2017.

In light of the allegations of serious mistreatment of Wu Gan and Xie Yang while in detention, and Xie’s public confession on state media, we call on the Chinese authorities to adhere to procedures established by law and respect China’s international human rights obligations and commitments. We urge Chinese authorities to view lawyers and rights defenders as partners in strengthening Chinese society through development of the rule of law.

We also continue to call for the immediate release of Wang Quanzhang, who has been held in detention and denied access to independent legal counsel for over two years.”

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Published: 28 December 2017 Author: Stefan Talmon

Increased Chinese espionage activities in Germany and curbs on the use of virtual private networks (VPNs) by German companies in China led to irritations in otherwise close and intense bilateral relations between China and Germany. On 10 December 2017, the Federal Office for the Protection of the Constitution (BfV) – Germany’s domestic intelligence agency – warned that China was trying to recruit German informants for intelligence services notably via the professional social media network LinkedIn. The head of the BfV commented that this was “a broad-based attempt [by Chinese intelligence] to infiltrate in particular parliaments, ministries and government agencies.” On the other hand, German companies with business activities in China were concerned that the new Cybersecurity Law, which entered into force on 1 June 2017, would limit the use of VPNs which allowed them to communicate securely with their office outside China and to access any of the approximately 3,000 websites and online services currently blocked in China by the “Great Firewall” system.

Asked about the BfV’s report on social media profiles which were allegedly faked by Chinese intelligence to gather personal information about German officials and politicians, the German Ambassador to China, Michael Clauss, said in an interview with the newspaper South China Morning Post, published in Hong Kong on 22 December 2017: (more…)

Published: 21 December 2017 Author: Stefan Talmon

On 14 July 2015, Iran, the P5+1 countries B the United States, the United Kingdom, France, Russia, China, and Germany B and the European Union concluded an international non-binding political agreement, the Joint Comprehensive Plan of Action (JCPOA), that sought to ensure that Iran’s nuclear programme was peaceful. Under the agreement, Iran agreed to eliminate its stockpile of medium-enriched uranium, cut its stockpile of low-enriched uranium by 98%, and reduce by about two-thirds the number of its gas centrifuges for 13 years. For the next 15 years, Iran was to enrich uranium only up to 3.67%. Iran also agreed not to build any new heavy-water facilities for the same period of time. Uranium-enrichment activities were to be limited to a single facility using first-generation centrifuges for 10 years. Other facilities were to be converted to avoid proliferation risks. To monitor and verify Iran’s compliance with the agreement, the International Atomic Energy Agency (IAEA) was to have regular access to all Iranian nuclear facilities. The agreement provided that, in return for Iran verifiably abiding by its commitments, United Nations Security Council, European Union and United States nuclear-related economic sanctions would be lifted.

The JCPOA was subsequently endorsed by the United Nations Security Council in resolution 2231 (2015). The Security Council, acting under Article 41 of the Charter of the United Nations, lifted all nuclear-related sanctions which it had previously imposed on Iran. However, the Council also decided that upon notification by a “JCPOA participant State” of significant non-performance by Iran of its commitments under the JCPOA, the United Nations sanctions would automatically be reinstated unless the Security Council adopted another resolution to continue in effect the lifting of the sanctions within 30 days of the notification (“snap back mechanism”). Upon verification by the IAEA of the implementation of Iran’s commitments under the JCPOA, the European Union on 16 January 2016 lifted its nuclear-related economic and financial sanctions. On the same day, U.S. President Obama signed an executive order lifting U.S. sanctions imposed against Iran for pursuing a nuclear weapons programme. (more…)

Published: 21 December 2017 Author: Stefan Talmon

Climate change policy is not generally seen as a traditional domain of the United Nations Security Council. Nevertheless, Germany seems convinced that the Council should take up this topic. Since 2011, Germany has consistently worked to bring the security implications of climate change to the attention of the Security Council. On 10 April 2017, in an Aria-formula meeting on the security implications of climate change and sea level-rise, the German representative stated:

“No one can ignore the challenges posed by rising temperatures, increasingly extreme weather phenomena and their devastating consequences. Germany would like to build on previous discussions in the Council and to reinforce an important message: the effects of climate change pose a threat to global security. We believe strongly that this issue should be on the Council’s agenda.

One of the clearest threats is the impact of sea-level rise on the securityCand even survivalCof many Member States. […]

We all know that climate change is already making low-lying islands and coastal areas uninhabitable. And as extreme weather events become more frequent and severe, the safety of millions of people and much critical infrastructure will be at risk. Sea-level rise may also dramatically increase the numbers of displaced persons in densely populated coastal areas as people are forced from their homes. Such developments may even erode state capacity and legitimacy, damaging national and international security. […].

Climate change is a fact. So is sea-level rise. And the security implications are clear to see. It is high time that the international community and its leading organs fully recognize them as such. German policy has been consistent. In July 2011, when we chaired the Security Council, this august body reached a consensus on a presidential statement regarding climate change and security. […].”

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