GPIL - German Practice in International Law

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…)

Banning campaign rallies by Turkish government officials in Germany

Published: 03 July 2017 Author: Stefan Talmon

For many years, foreign government officials and politicians were allowed to address the electorate of their own State at events in Germany. For example, in recent years Turkish President Recep Tayyip Erdogan and other Turkish government officials on several occasions addressed compatriots living in Germany, home to an estimated 1.4 million eligible Turkish voters and a 3 million-strong ethnic Turkish community.

Visits by foreign government officials and politicians were usually notified in advance by the foreign country’s embassy in Berlin but the Federal Government took the view that such visits did not require prior approval. On 17 February 2017, the spokesperson for the Federal Foreign Office explained: “There is no request for approval. But that is also not required by law.” According to the Foreign Office, no decisions were taken at the federal government level. Campaign rallies by foreign politicians and government officials were seen as a matter purely of the German Assembly Act and administrative law more generally which were administered by the federal states and local authorities. That Germany, like any other sovereign State, could decide on who enters or leaves the country, was seen in this context more as a theoretical possibility. In response to a parliamentary question, the Federal Government replied that since the year 2000 (the date referred to in the question) it had never denied entry to a foreign politician or government official who wanted to speak at a campaign rally or other political event. (more…)

Abstention from vote on Chagos Archipelago advisory opinion

Published: 28 June 2017 Author: Stefan Talmon

Prior to 1965, the Chagos Archipelago had been administered as a dependency of the then British colony of Mauritius. On 8 November 1965, the Archipelago was detached from the colony to be administered separately by the United Kingdom as the British Indian Ocean Territory (“BIOT”). Beginning in 1967 the Archipelago was evacuated to allow the United States to use the islands for defence purposes under a lease from the United Kingdom. Mauritius, then without the Chagos Archipelago, became independent on 12 March 1968. Since at least 1980 it has asserted that the detachment of the Chagos Archipelago was unlawful and that it has sovereignty over the archipelago. The United Kingdom has always rejected these claims.

Mauritius tried to raise the question of sovereignty over the Chagos Archipelago before an Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea and before the European Court of Human Rights. However, none of these courts and tribunals was competent to rule on the question of sovereignty.

After the United Kingdom announced that none of the Chagossians who had been expelled in the 1960s to make way for military bases would be allowed to return to live on the Archipelago, the Government of Mauritius declared on 17 November 2016 that: (more…)