to the scope of fundamental rights protection under the Basic Law. In any case, the
Convention does not rule out further-reaching fundamental rights protection by the
Contracting Parties (Art. 53 ECHR).
c) In the case at hand, it is also not necessary to seek a delimitation from and coordination with other states and legal systems, which is the only possible reason that
could stand in the way of the applicability of fundamental rights to German state authority abroad; this issue was discussed, and left unresolved, by the Federal Constitutional Court with regard to excluding the applicability of Art. 10 GG in relation to foreign matters (cf. BVerfGE 100, 313 <362 et seq.>).
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The binding effect of German fundamental rights entails accountability and responsibility solely on the part of German state organs. It only applies to autonomous political decisions made by the Federal Republic of Germany and solely limits Germany’s
own latitude. Accordingly, in other countries German fundamental rights – in their dimension as rights against state interference – are only applicable vis-à-vis German
state authority and are thus in line with the restrictions arising from the principle of
non-intervention under international law. Thus, the binding effect of fundamental
rights does not amount to a violation of the principle of non-intervention or to a restriction of other states’ executive or legislative powers. It neither imposes German
law on other states, nor does it supplant the fundamental rights of other states. In
particular, the binding effect of fundamental rights does not extend German state
powers abroad, but limits potential courses of action of German state authority.
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Thus, the applicability of fundamental rights (in this case Art. 10(1) GG) has no effect on the legal order of other states; authorisations to carry out surveillance measures that are tied to the applicability of fundamental rights are also not binding within
the legal systems of other states. It merely follows from the applicability of fundamental rights and the requirement of a statutory provision that a statutory basis must be
created for surveillance measures carried out by German bodies in relation to foreigners in other countries. This does not predetermine whether and to what extent
such powers are actually created and used. Nor does this say anything about the
justification of individual measures based on such powers with regard to their effects
vis-à-vis the targeted state.
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In light of the foregoing, the binding effect of fundamental rights as such does not
answer the question whether such measures are permissible under international law.
Other states are of course free to defend themselves against such measures – just
as Germany may, under domestic constitutional law, defend itself against surveillance measures of foreign intelligence services in Germany (see para. 249 below).
Therefore, the binding effect of fundamental rights on German state authority does
not place a burden on other states that could give rise to concerns under international
law ([…]). Internationally, it is quite common to create statutory bases for surveillance
measures targeting foreigners in other countries. Such statutes give rise to merely
domestic authorisations (cf. Gusy, in: Schenke/Graulich/Ruthig [eds.], Sicherheit-
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