GPIL - German Practice in International Law

Violence against the Rohingyas in Myanmar’s Rakhine state

Published: 27 October 2017 Author: Stefan Talmon

The Muslim Rohingya are an ethnic minority who have lived for centuries in Myanmar’s western state of Rhakine. The Rohingya are denied citizenship in mainly Buddhist Myanmar and have been the object of repeated violent attacks by Buddhist nationalists and the State security forces. In a report released on 24 August 2017, the Advisory Commission on Rakhine State headed by former UN Secretary-General Kofi Annan identified the issue of citizenship rights as “a broad concern, and a major impediment to peace and prosperity in Rakhine.”

On 25 August 2017, Rohingya militants attacked police and army posts in the border region with Bangladesh killing several members of the security forces. These attacks led to a fresh outbreak of violence against the Rohingya in Rakhine state which caused hundreds of thousands of them to flee their homes and cross the border into Bangladesh. The government of Myanmar said it was fighting insurgents but those who fled said troops and Rakhine Buddhists are conducting a brutal campaign to drive them from their homes. They accused local Buddhist mobs, backed by government forces, of burning their villages. Myanmar’s government, on the other hand, claimed that the Rohingyas were burning their own homes.

Ob 6 September 2017, Germany condemned the violence in Myanmar and called for the repatriation of refugees as soon as possible. In a statement the Government said: (more…)

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…)

Abolition of the death penalty

Published: 12 October 2017 Author: Stefan Talmon

On 10 October 2017, the World Day against the Death Penalty, the Foreign Minister of Germany together with his colleagues from Austria, Liechtenstein, Luxembourg, Slovenia and Switzerland, published the following opinion piece:

“Today, on this World Day against the Death Penalty, we reaffirm our commitment to the universal abolition of the death penalty.

On the positive side, we have been witnessing a worldwide trend towards restricting and abolishing the death penalty for decades. Of the 193 UN member states, only 36, or just under 20%, still apply the death penalty. Whereas the death penalty was still the rule in the 1980s, today it is the exception. This cruel form of punishment is now almost banished from Europe – with one exception. It is time for Belarus to also cease executions and free all of Europe from the death penalty – forever.

We note with concern, however, that some countries in the world are seriously discussing the reintroduction of the death penalty and that executions are being resumed in other countries after longstanding moratoriums. This is contrary to the global trend and to some extent contravenes international law. We call on all states to comply with their international obligations and respect the spirit of the International Covenant on Civil and Political Rights, which provides for a progressive abolition of the death penalty. (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…)

Death penalty not generally incompatible with ICCPR

Published: 30 September 2017 Author: Stefan Talmon

On 22 September 2017, Germany together with 60 other States co-sponsored a draft resolution on “The question of the death penalty” at the United Nations Human Rights Council. The sixteenth preambular paragraph of the resolution read:

“Strongly deploring the fact that the use of the death penalty leads to violations of the human rights of the persons facing the death penalty and of other affected persons.”

The Russian Federation proposed an amendment providing that

“the use of the death penalty may in some cases lead to violations of the human rights of the persons facing the death penalty […].”

Rejecting the Russian amendment, the German representative stated in the Human Rights Council on 29 September 2017: (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.”

(more…)

Loss of refugee status by going on holiday to the country of persecution

Published: 29 August 2017 Author: Stefan Talmon

Responding to media reports that refugees had been “going on holiday” in the countries from where they fled persecution, Chancellor Angela Merkel said in an interview published on 27 August 2017:

“I can imagine difficult family situations where a return for a few days is understandable. Actually going on holiday in the country in which one is being persecuted is not on. If this is done anyway, this can be a reason to re-examine the asylum decision.”

This statement is in line with the position taken by the Federal Office for Migration and Refugees (BAMF). According to section 72, paragraph 1a, of the Asylum Act, recognition of refugee status shall cease to have effect if the foreigner “voluntarily returns to or settles in the country he left or stayed away from for fear of persecution”. However, a return to the country of persecution does not automatically lead to the cessation of refugee status. The Asylum Act has to be interpreted in line with European law which requires a decision on a case-by-case basis for the withdrawl of international protection. For the decision to withdraw refugee status, the BAMF distinguishes between the various reasons for the return to the country of persecution. The BAMF takes the position that (more…)

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…)