ers. Such a notion would run counter to the Basic Law’s aim of ensuring that every
person is afforded inalienable rights on the basis of international conventions and beyond national borders – including protection from surveillance (cf. Art. 12 of the Universal Declaration of Human Rights, Art. 17(1) of the International Covenant on Civil
and Political Rights). Given the realities of internationalised political action and the
ever increasing involvement of states beyond their own borders, this would result in
a situation where the fundamental rights protection of the Basic Law could not keep
up with the expanding scope of action of German state authority and where it might –
on the contrary – even be undermined through the interaction of different states. Yet
the fact that the state as the politically legitimated and accountable actor is bound by
fundamental rights ensures that fundamental rights protection keeps up with an international extension of state activities.
b) The European Convention on Human Rights, which constitutes a guideline for
the interpretation of fundamental rights, also suggests such an understanding of the
scope of the fundamental rights of the Basic Law (cf. BVerfG, Order of the First Senate of 6 November 2019 - 1 BvR 16/13 -, para. 58 with further references – Right to
be forgotten I). It has not yet been comprehensively determined to what extent its
guarantees apply to actions of the Contracting Parties outside of their own territory.
The European Court of Human Rights is mainly guided by the criterion of whether a
state exercises effective control over an area outside its own territory; on this basis,
it has in many cases affirmed the applicability of Convention rights abroad (cf. in summary ECtHR [GC], Al-Skeini and Others v. the United Kingdom, Judgment of 7 July
2011, no. 55721/07, §§ 132 et seq. with further references; cf. also Aust, Archiv des
Völkerrechts 52 <2014>, p. 375 <394 et seq.> with further references). However,
there has been no final determination as to whether protection is afforded against
surveillance measures carried out by Contracting Parties in other states.
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In a decision that has not become final yet, the First Section of the European Court
of Human Rights measured the implementation of surveillance measures targeting
persons abroad against the standards of the Convention without any restrictions and
found such measures to be in violation of the Convention. The complainants in this
case included foreign nationals who were not present or resident in the state against
which the applications were directed (cf. ECtHR, Big Brother Watch and Others v. the
United Kingdom, Judgment of 13 September 2018, no. 58170/13 and others, § 271).
Similarly, a Swedish foundation challenged strategic foreign surveillance powers under Swedish law that exclude domestic communications. The European Court of Human Rights reviewed these powers without calling into question the Convention’s applicability abroad (cf. ECtHR, Centrum för Rättvisa v. Sweden, Judgment of 19 June
2018, no. 35252/08). Both proceedings are now pending before the Grand Chamber.
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Irrespective of the outcome of these proceedings, the European Convention on Human Rights does not stand in the way of the applicability of German fundamental
rights abroad. This is because the Convention is an international treaty with its own
separate scope of application; no direct inferences can be drawn from it with regard
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