GPIL – German Practice in International Law

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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Published: 20 December 2017 Author: Stefan Talmon

Germany rejects the death penalty under all circumstances and actively campaigns for its worldwide abolition. As part of its campaign for the abolition of the death penalty, the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office issued several statements on the execution of the death penalty on minors. On 9 August 2017, the Commissioner for Human Rights Policy took up the case of the 20-year old Iranian Alireza Tajiki who had been convicted of murder and rape and faced imminent execution. She stated:

“The news that the execution of young Iranian Alireza Tajiki could be imminent fills me with great concern.

He was only 15 years old at the time of the crimes of which he stands accused, and there are considerable doubts as to whether his trial was conducted in accordance with the principles of the rule of law.

Should Alireza Tajiki be executed, this would be an unacceptable violation of international law. Iran has ratified not only the UN Convention on the Rights of the Child, but also the International Covenant on Civil and Political Rights, both of which prohibit the execution of individuals who were minors at the time of an offence.

I urgently appeal to the Iranian judicial authorities to refrain from carrying out this planned execution. Alireza Tajiki must be given a fair trial under the rule of law B and without the imposition of the death penalty.

The German Government opposes the death penalty, whatever the circumstances.”

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Published: 15 December 2017 Author: Stefan Talmon

In response to U.S. President Trump’s recognition of Jerusalem as the capital of Israel, pro-Palestinian demonstrators took to the streets of Berlin burning Israeli flags and chanting anti-Semitic slogans. Prompted by these events Foreign Minister Gabriel discussed the issue of anti-Semitisms among Muslims in Germany with representatives of Berlin’s Muslim community. During the meeting on 14 December 2017, Foreign Minister Gabriel made it clear that there was no place for anti-Semitism in Germany and that Germany had a special responsibility for Israel. That being said, it obviously must also be possible on this basis to criticise Israeli policy B as regularly happened, for instance in relation to Israeli settlement activities. In this context, he mentioned that some years ago, after visiting Hebron in the Israeli-occupied Palestinian territories, he had said that what he saw there reminded him of apartheid. On 14 March 2012, after a visit to Hebron Gabriel had posted the following statement on his Facebook wall:

“I was just in Hebron. There’s a legal vacuum there for Palestinians. This is an apartheid regime, for which there is no justification.”

He later clarified the reference to “apartheid regime” in a follow-up post saying: (more…)

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…)

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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