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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 question
by 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 agoThanks! 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.
- chki 6y agoIf you speak German you might be interested in this article regarding the very similar case of the US Base Rammstein located in Germany, which is used for drone strikes in the middle east https://verfassungsblog.de/ramstein-deutschlands-mitverantwortung-fuer-voelkerrechtswidrige-drohnenangriffe/ https://verfassungsblog.de/ramstein-deutschlands-mitverantwo... It's difficult to give a complete summary but basically there already have been some judgments by courts in Germany regarding the air base. Those judgments state that there are certain obligations arising from the constitution and also from international law when it comes to supporting the US in coordinating drone strikes. Things get tricky because it's not even clear what the US army is doing exactly in Rammstein and also the German governments obligations under international law (in particular their contract with the US) have to be considered when restricting their duty not to allow targeted killings. I don't think you could argue that the current judgment "leaves a loophole" because the BVerfG might reasonably make a judgment in the future that the German government may not allow CIA monitoring in Germany. (Or it might not do this, but this judgement does not indicate anything in this regard)