The German Constitutional Court (GCC) declared, in its ruling on May 19th, that the surveillance of non-German individuals outside of Germany was unconstitutional. The Court’s judgment on the German Act on the Federal Intelligence Service (Gesetz über den Bundesnachrichtendienst, or the BND-Gesetz) has not attracted enough legal commentary in the midst of the COVID-19 pandemic. Granted, the judgment is not as dramatic as that of the Karlsruhe-Luxemburg debacle. Yet, it is also a case where the GCC is interpreting an international treaty, which already has its authoritative interpreter: the European Convention on Human Rights. Significantly, unlike its decision on EU law, what the GCC offers may be a seen as a very welcome development by European and international human rights lawyers.
There is much to discuss beyond what the judgment says to Strasbourg. Two comments on Verfassungsblog here and here, as well as a post on Lawfare here discuss the reasoning of the GCC in this case and what the extra-territorial reach of fundamental rights under the German Constitution mean. But these comments have not looked at the judgment from the perspective of European human rights law. In particular, they did not look at extent to which the GCC went beyond the Strasbourg Court in its understanding of extra territorial jurisdiction and how in effect it is now closely aligned with the UN Human Rights Committee and the Inter-American Court of Human Rights. This is what I would like to offer in this post.
Where does the ECHR apply? A well-known entanglement
Where the ECHR (or indeed any civil and political rights human rights treaty) applies is one of the central structural questions of international human rights law. This is because states have duties to secure the rights protected under the ECHR only when those individuals come within the jurisdiction of a state party to the Convention – as per Article 1 of the Convention. This question has kept the ECtHR busy over many decades.
The answer to this question is largely obvious when individuals bring human rights claims against states in which they are present (but see, Djokaba Lambi Longa v. the Netherlands). The Convention applies in the territory of its state parties. This is the case even if states may not have full de facto control of their own territory (Ilascu and others v. Moldova and Russia). Yet, states are not (and perhaps have never been) only territorial actors. States ‘travel’ by becoming occupying powers within the terms of the laws of armed conflict (Al Skeini v. UK), by securing effective control over another territory (Cyprus v. Turkey), by sending their troops to join multinational forces abroad (Jaloud v. Netherlands), by sending military vessels into international waters (Hirsi Jamaa and others v. Italy), and also by sending their law enforcement agents (or intelligence services) abroad (Öcalan v. Turkey). Of course, states may also give direct instructions to other state or non-state actors who may act extra-territorially on their behalf.
Given the wide variety of extra-territorial actions that state agents undertake, the ECtHR has long held that whilst the jurisdiction of a state is ordinarily and primarily territorial, states can also exercise jurisdiction in other ways. For instance, this can be seen in effective control over another territory (control over territory jurisdiction, CoT) and by effective control over the citizen of another nation. This can be, for example, by detaining them in another territory (control over person jurisdiction, CoP) (Al Skeini v. UK).
Yet, these two inductively developed exceptions to the primarily territorial jurisdiction of states have not always covered all the odd ways and forms that state power travels and effects rights of individuals extraterritoriality. This first came to the forefront in the well known inadmissibility decision of Bankovic and others v. Belgium and others back in 2001. Strasbourg held that because the NATO aircraft that bombed a Belgrade television station killing civilians, including Ms Bankovic, did not control Serbian territory in 1999 there was no exercise of jurisdiction.
The recent Grand Chamber hearing in Hanan v. Germany, involving an airstrike order by a member of the German airforce in 2009 leading to more than 100 civilian deaths in the Kunduz province of Afghanistan, saw Germany plead this jurisdictional lacunae argument. Germany held that it did not have extra territorial jurisdiction in the Kunduz province of Afghanistan because it did not have effective control of the area where German military was present, Germany did not exercise powers of the Afghan government through their presence, and the air strike did not constitute state agent authority and control.
In this pending case, the applicants pleaded that there is something wrong with the doctrine of extra territorial jurisdiction exceptions formulated by the ECtHR, and held that jurisdiction has to be seen from one more level abstraction than controlling a territory, powers in a territory, or a person. What is at stake is a much fundamental question: At the time of the actual interference with the rights of a person, wherever that person may be, does the state have effective control over the enjoyment of the rights of persons? In other words, control over someone else’s territory or control over person are sub-themes of a more basic, but a more coherent idea: effective control over the rights of a person.
This is not a novel idea. The effective control over the rights of a person doctrine has garnered significant support amongst those interpreting international human rights over the past few years. The UN Human Rights Committee’s General Comment no 36 on the right to life openly adopted the control over rights approach in its paragraph 63 where it stated:
‘In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. […]’
The Inter American Court of Human Rights, in its Advisory Opinion on “The Environment and Human Rights” of 2017 held that a jurisdictional link can be found:
"when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights” (para. 104(h))"
The BND Judgment of the German Constitutional Court: A Principled defence of control over rights of persons doctrine
The BND case involves the surveillance of non-German individuals outside of Germany by the German Intelligence Services. Before getting into whether the enabling legislation of such surveillance and its practice violated the rights protected under the German Constitution (the right to privacy, and freedom of the press), the German Constitutional Court had to tackle a preliminary question: do the fundamental rights protected under the German Basic Law extend beyond the actions of German authorities outside of their territory? In ECtHR parlance, this is the classic extra-territorial jurisdiction question.
Under the extra-territorial jurisdiction doctrines of the ECtHR I outline above, the answer to this question would have been no. Listening to non-Germans in far away lands involves neither control over territory, nor actual control of person. Indeed, only a few years ago, the UK Investigatory Powers Tribunal ruled that non-UK residents have no right to privacy under the ECHR using precisely such arguments.
Seen from the effective control over the rights of persons perspective, currently adopted by the UN HRC and the Inter-American Court of Human Rights, however, the answer is a clear yes. The German Intelligence Services’s actions listening to, collecting and sharing data about individuals outside Germany’s borders is indicative of control over the rights of persons at the time of interference with their rights.
In my reading of the judgment (or rather its unofficial translation), the GCC also said yes. It found that German fundamental rights bind all state authorities without the requirement of effective control over territory or person.
In so doing, and this is the most interesting part, the GCC relied on international human rights law, even though it mentioned neither the UN HRC nor the Inter-American Court.
The GCC’s reliance on international human rights law operated in three steps.
First it held (with reference to Article 1(2) of the German Constitution) that fundamental rights enshrined in the Constitution are based on human rights and they must be interpreted in the light of international human rights obligations of Germany (para 94 and para 95).
Second it held that fundamental rights in the Constitution cannot be read as only applicable within the territory of Germany because Germany is a public actor that has responsibility to German people in a united Europe and the World (para 94, para 95 also inter alia with reference to the preamble of the Constitution BVerfGE 101, 386).
Thirdly, and perhaps more significantly, the GCC held that the German public power must be bound by international human rights wherever it operates, in particular, in a world where state activities have expanded to include an international dimension. The GCC also held that to argue the opposite would lead to an accountability gap of German public power under the Constitution (para 96), echoing the arguments of the applicants in Bankovic v. Belgium and others. Significantly, the Court did not mention the two criteria which has preoccupied the ECtHR on establishing extra-territorial jurisdiction. Instead, it underlined that the capacity to interfere with the human rights of persons is the paramount consideration to bring the extra territorial exercise of German public power within the jurisdiction of the Constitution.
What is curious in the GCC judgment is its validation of the effective control over rights doctrine (albeit not calling it this) with explicit reference to the ECHR. In paragraph 97 of the judgment, this is specifically asserted. The judgment in the same paragraph, however, also nods to the uncertainties in the case law of the ECtHR on the interpretation of extra-jurisdiction, but holds that the ECtHR is ultimately also guided by the criterion of ‘effective control over action’ with specific reference to Al-Skeini and others v. United Kingdom. The GCC then points to two pending cases before the Grand Chamber of the ECtHR — Big Brother Watch and others v. United Kingdom and Centrum för Rättvisa v. Sweden. Both of these involve surveillance measures with targets abroad (para 98). Whilst recognising that the Grand Chamber of the European Court of Human Rights may go in a different direction in these pending extra territorial surveillance cases, the GCC is careful to point out that Article 53 of the ECHR does not exclude a more extensive protection of fundamental rights by the Convention states (para 99).
It remains to be seen is that whether the ECtHR will respond to this nudging with regard to its pending extra territorial surveillance cases before the Grand Chamber. Perhaps more curious is whether the ECtHR Grand Chamber will align itself with Geneva, San Jose and Strasbourg in Hanan v. Germany, a case where German state authorities have argued a position that now quite clearly is not in line with the extra-territorial jurisdiction outlook of their Constitutional Court.
This piece first appeared on 21 July on the EJIL:Talk!