4 ms·

"The ruling said that non-Germans were also protected by Germany's constitutional rights" That's a pretty big task if it's not heavily caveated. I'm curious ho

"The ruling said that non-Germans were also protected by Germany's constitutional rights" That's a pretty big task if it's not heavily caveated. I'm curious how they manage conflicts around citizenship and constitutional reach then. I'd love to hear a German Constitutional scholar weigh in. If their constitution protects non-citizens does that mean that German police/military are required constitutionally to protect non-Germans from acts by non-German states or individuals? Are there any positive rights in the German constitution (like a right to be provided legal counsel) that a non-German citizen could "charge" the government for so to speak? It seems based on this interpretation that someone from - say Nicaragua - could claim that the Nicaraguan government is in violation of German constitution and the German government would be obliged to provide counsel to the Nicaraguan citizen.

DasIch 6y ago
The German constitution explicitly distinguishes between humans and citizens. So no, this is not a big task. It’s not a task at all.
mytailorisrich 6y ago
Indeed, as I mentioned in another comment, many of these human rights issues are pandora boxes.
KarlKemp 6y ago
The US constitution, and really any constitution, also offers some protections for non-citizens. To wit: the word 'citizen' does not appear once in the first ten articles of the Bill of Rights. Morally, and really from a PR standpoint as well, anything else would have been impossible even at the time of the framers. If you are known for your declaration of "all men being created equal" and possessing "certain inalienable rights" you can't really turn around and say "no, sorry, you're an alien". Voting or residing in the United States isn't generally among the universally recognised human rights and can be separated from, for example, the right to a (fair) trial. Without that, foreigners on US soil, and you everywhere else on earth, would have absolutely no protection and could literally be executed on the whims of some Sheriff or prosecutor. The use of drones for targeted executions is a strangely useful example showing this: only because non-citizens are protected in general did the US need to come up with the fantasy that is its "unlawful combatant" construction.
Tomte 6y ago
> If their constitution protects non-citizens Only some basic rights are afforded to non-citizens. Others are so-called "German basic rights" and only apply to citizens. (And by some legal machinery these rights are extended to EU citizens.) > protect non-Germans from acts by non-German states or individuals Obviously not. How on earth could you even think that? This ruling is about what the BND, a German government authority, does. It does not apply to foreign secret services like the CIA, it does not apply to foreign civil entities like Amazon, it does not apply to imagined entities like the Illuminati. > It seems […] When your reasoning leads to prima facie faulty results, you should examine your premises.
- chki 6y ago
  See also my other comment but to add something: Actually a lot of fundamental rights in the German constitution are also granted to non-EU nationals via Art. 2 I GG. It's not always clear how far these rights go, but it's definitely not as clear cut as you make it seem. That being said there are limits to these rights and the ruling issued today does not go as far as to give non-Germans protection outside of German jurisdiction that go beyond so called "Abwehrrechte".
  - Tomte 6y ago
    That's one fundamental right, not "lots of". You're only right insofar as that is the "default catchall" that is used when no specific other basic right is there and the courts find it proper to allow something also for non-citizens.
    - chki 6y ago
      I think I was not specific enough, what you're saying is of course correct. The BVerfG (GCC) uses other fundamental rights issued to German citizens as an aid to interpret Art. 2 I GG. I guess we could argue whether that means that there are multiple rights enshrined in Art. 2 I GG or whether it's already one extremely far-reaching right that's already a catch-all.
      - 6y ago
chki 6y ago
I'm not really a German constitutional scholar but I study German law and am somewhat specialized in constitutional and international law. I think the questions you are touching upon are very interesting. There are definitely a lot of "positive rights" in the German constitution, that is to say rights, that do not simply protect an individual from action by the state but actually require the state to act in a certain way. That being said, the German Constitutional Court (GCC) is very careful not to "over-interpret" the constitution in such a way that the state only has one legal way of handling an issue, which is especially true in these constellations of so called Schutzpflichtverletzungen (violations of the duty to protect). Regarding the ruling issued today this explicitly only concerns "Abwehrrechte" (rights against actions by the state). Two key provisions from the judgement read: >Der Schutz der einzelnen Grundrechte kann sich im Inland und Ausland unterscheiden. (The protection of fundamental rights can differ regarding their application inside or outside German sovereignty.) >Jedenfalls der Schutz des Art. 10 Abs. 1 und des Art. 5 Abs. 1 Satz 2 GG als Abwehrrechte gegenüber einer Telekommunikationsüberwachung erstreckt sich auch auf Ausländer im Ausland. (At least the protection of Art. 10 I and Art. 5 I 2 GG as rights __against actions by the state__ in relation to the Surveillance of Telecommunication also protects foreigners outside German territory) (translations very roughly by me) This is more speculative but this shows in my opinion that the Court sees the problem you're referring to and is very careful in stating that there can be differences between inside and outside jurisdiction AND that the current judgement only concerns Abwehrrechte against the state.
- AndrewKemendo 6y ago
  Thanks! This is exactly what I was wondering if they called out or addressed and it seems as if they did.
- fit2rule 6y ago
  .. so, please correct me if I'm wrong, but this leaves open a loophole for the CIA/NSA monitoring stations within Germany - which are not possessions of the sovereign government - to continue to spy on anyone they like, as the German government has just washed its hands of any responsibility for that.
nelaboras 6y ago
not Germany specific, but 'universal jurisdiction' is a thing: https://cja.org/what-we-do/litigation/legal-strategy/universal-jurisdiction/ https://cja.org/what-we-do/litigation/legal-strategy/univers... I can't find much information on this in English, but I believe it was Spain that also put in place an explicit law that you can use Spanish courts for human rights cases that have no very direct link to Spain.

DasIch 6y ago

The German constitution explicitly distinguishes between humans and citizens. So no, this is not a big task. It’s not a task at all.

mytailorisrich 6y ago

Indeed, as I mentioned in another comment, many of these human rights issues are pandora boxes.

KarlKemp 6y ago

The US constitution, and really any constitution, also offers some protections for non-citizens. To wit: the word 'citizen' does not appear once in the first ten articles of the Bill of Rights. Morally, and really from a PR standpoint as well, anything else would have been impossible even at the time of the framers. If you are known for your declaration of "all men being created equal" and possessing "certain inalienable rights" you can't really turn around and say "no, sorry, you're an alien". Voting or residing in the United States isn't generally among the universally recognised human rights and can be separated from, for example, the right to a (fair) trial. Without that, foreigners on US soil, and you everywhere else on earth, would have absolutely no protection and could literally be executed on the whims of some Sheriff or prosecutor. The use of drones for targeted executions is a strangely useful example showing this: only because non-citizens are protected in general did the US need to come up with the fantasy that is its "unlawful combatant" construction.

Tomte 6y ago

> If their constitution protects non-citizens Only some basic rights are afforded to non-citizens. Others are so-called "German basic rights" and only apply to citizens. (And by some legal machinery these rights are extended to EU citizens.) > protect non-Germans from acts by non-German states or individuals Obviously not. How on earth could you even think that? This ruling is about what the BND, a German government authority, does. It does not apply to foreign secret services like the CIA, it does not apply to foreign civil entities like Amazon, it does not apply to imagined entities like the Illuminati. > It seems […] When your reasoning leads to prima facie faulty results, you should examine your premises.

chki 6y ago
See also my other comment but to add something: Actually a lot of fundamental rights in the German constitution are also granted to non-EU nationals via Art. 2 I GG. It's not always clear how far these rights go, but it's definitely not as clear cut as you make it seem. That being said there are limits to these rights and the ruling issued today does not go as far as to give non-Germans protection outside of German jurisdiction that go beyond so called "Abwehrrechte".
- Tomte 6y ago
  That's one fundamental right, not "lots of". You're only right insofar as that is the "default catchall" that is used when no specific other basic right is there and the courts find it proper to allow something also for non-citizens.
  - chki 6y ago
    I think I was not specific enough, what you're saying is of course correct. The BVerfG (GCC) uses other fundamental rights issued to German citizens as an aid to interpret Art. 2 I GG. I guess we could argue whether that means that there are multiple rights enshrined in Art. 2 I GG or whether it's already one extremely far-reaching right that's already a catch-all.
    - 6y ago

chki 6y ago

I'm not really a German constitutional scholar but I study German law and am somewhat specialized in constitutional and international law. I think the questions you are touching upon are very interesting. There are definitely a lot of "positive rights" in the German constitution, that is to say rights, that do not simply protect an individual from action by the state but actually require the state to act in a certain way. That being said, the German Constitutional Court (GCC) is very careful not to "over-interpret" the constitution in such a way that the state only has one legal way of handling an issue, which is especially true in these constellations of so called Schutzpflichtverletzungen (violations of the duty to protect). Regarding the ruling issued today this explicitly only concerns "Abwehrrechte" (rights against actions by the state). Two key provisions from the judgement read: >Der Schutz der einzelnen Grundrechte kann sich im Inland und Ausland unterscheiden. (The protection of fundamental rights can differ regarding their application inside or outside German sovereignty.) >Jedenfalls der Schutz des Art. 10 Abs. 1 und des Art. 5 Abs. 1 Satz 2 GG als Abwehrrechte gegenüber einer Telekommunikationsüberwachung erstreckt sich auch auf Ausländer im Ausland. (At least the protection of Art. 10 I and Art. 5 I 2 GG as rights __against actions by the state__ in relation to the Surveillance of Telecommunication also protects foreigners outside German territory) (translations very roughly by me) This is more speculative but this shows in my opinion that the Court sees the problem you're referring to and is very careful in stating that there can be differences between inside and outside jurisdiction AND that the current judgement only concerns Abwehrrechte against the state.

AndrewKemendo 6y ago
Thanks! This is exactly what I was wondering if they called out or addressed and it seems as if they did.
fit2rule 6y ago
.. so, please correct me if I'm wrong, but this leaves open a loophole for the CIA/NSA monitoring stations within Germany - which are not possessions of the sovereign government - to continue to spy on anyone they like, as the German government has just washed its hands of any responsibility for that.

nelaboras 6y ago

not Germany specific, but 'universal jurisdiction' is a thing: https://cja.org/what-we-do/litigation/legal-strategy/universal-jurisdiction/ https://cja.org/what-we-do/litigation/legal-strategy/univers... I can't find much information on this in English, but I believe it was Spain that also put in place an explicit law that you can use Spanish courts for human rights cases that have no very direct link to Spain.