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Published online by Cambridge University Press: 06 March 2019
The status and range of human rights in international relations is a politically delicate and legally contested topic. In a recent decision the Federal Constitutional Court was forced to concretize the relation between international human rights obligations, domestic constitutional rights laid down in the Grundgesetz and international duties following from extradition contracts between the Federal Republic and other UN member states. More precisely, in the “Extradition to India”-case the FCC had to deal with the crucial question of human rights adjudication: can an accused be handed over to a country where the police force is accused of “using torture as a regular instrument during the interrogation of apprehended persons” and whose correctional institutions are described as “keeping prisoners and detainees in custody under conditions which resemble a cruel, inhuman and humiliating treatment or punishment”?
1 Case no. 2 BvR 685/03. The court's decision is published on its website www.bverfg.de (under Entscheidungen). Quotations from and references to the decision relate to the paragraphs of the internet version.Google Scholar
2 Koskenniemi, Martti, From Apology to Utopia, Helsinki: Lakimiesliiton Kustannus, 1989.Google Scholar
3 Bentham, Jeremy, Anarchical Fallacies, reproduced in Waldron, Jeremy (ed.), Nonsense on Stilts: Bentham, Burke and Marx on the Rights of Man, London and New York: Methuen, 1987, 53.Google Scholar
4 The examples are well known, and the list is long: Governments in China and Indonesia claim their own interpretations of human rights, while Russia, for example, is frequently accused of using “terrorism” as an excuse for acts of extreme brutality against people in Chechnya. The treatment of the Guantanamo prisoners or the intentional killings of suspected Hamas terrorists by Israeli military forces in the West Bank and Gaza strip could also be mentioned here. For a critique of the definition of the Guantanamo detainees as “unlawful combatants”, see Luisa Vierucci, What judicial treatment for the Guantanamo detainees?, German Law Journal Vol. 3 No. 9–1 September 2002. For a further analysis on the contemporary role of the US in the international legal order, see Martin F. Byers/Georg Nolte (eds.), US Hegemony and the Foundations of International Law, Cambridge: Cambridge University Press, 2003. See, the review of this volume by Miia Halme in: 4 German Law Journal No. 12 (1 December 2003) – this issue.Google Scholar
5 Hannah Arendt, Elemente und Ursprünge totaler Herrschaft, Munich: Hanser 1986 (The Origins of Totalitarianism, New York: Harcourt Brace Jovanovich 1951), 455.Google Scholar
6 BVerfG (n.1), 2-4.Google Scholar
7 Paragraph 73 IRG states: „Co-operation in legal matters is unlawful if it were in contradiction to fundamental principles of the German legal order“Google Scholar
8 BVerfG (n. 1), 5-8.Google Scholar
9 BVerfG (n. 1), 12-13.Google Scholar
10 BVerfG (n. 1), 19-20.Google Scholar
11 BVerfG (n. 1), 16. – The German extradition procedure consist of two parts: First, an upper state court (Oberlandesgericht) has to declare the extradition admissible, and in a second step the German Foreign Office approves the extradition in a diplomatic note (“Verbalnote“) addressed to the country asking for the extradition of the accused. The Foreign Office may deny the extradition of an accused, e.g. for political reasons, even if the Oberlandesgericht declares the extradition admissible. It cannot, however, override a negative decision of the Oberlandesgericht.Google Scholar
12 BVerfG (n. 1), 22-26.Google Scholar
13 Article 25 GG reads: “The fundamental principles of the international legal order are part of the Federal legal order.”Google Scholar
14 BVerfG (n. 1) 33-34.Google Scholar
15 BVerfG (n. 1) 35. In the FCC's daily practice this is a popular technique to save judgements where the reasoning is obscure, opaque, or contradictory, but where the findings can be defended on other grounds, from the verdict of being arbitrary and thus unconstitutional.Google Scholar
16 Upon ratification of the convention, Germany has made the following reservation: “This provision prohibits the transfer of a person directly to a State where this person is exposed to a concrete danger of being subjected to torture.”Google Scholar
17 BVerfG (n. 1) 36-37.Google Scholar
18 BVerfG (n. 1) 40-41.Google Scholar
19 BVerfG (n. 1), 43.Google Scholar
20 BVerfG (n. 1), 43-45.Google Scholar
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24 Dissenting opinion, BVerfG (n. 1), 61-62.Google Scholar
25 Dissenting opinion, BVerfG (n. 1), 62.Google Scholar
26 Dissenting opinion, BVerfG (n. 1), 63-67.Google Scholar
27 Soering v UK (1989), case no. 1/1989/161/217, decision of the ECHR from 26 June 1989, Neue Juristische Wochenschrift 1990, p. 2183. In paragraph 87 of the decision the ECHR holds that the provisions of the Convention and especially its article 3 must “be interpreted and applied so as to make its safeguards practical and effective”. In paragraph 100-111 the Court argues that degrading or inhuman prison conditions can represent a violation of article 3 of the Convention. – Judgements of the ECHR are available on its website: http://www.echr.coe.int.Google Scholar
28 Dissenting opinion, BVerfG (n. 1), 68.Google Scholar
29 Dissenting opinion, BVerfG (n. 1), 70.Google Scholar
30 Case no. 2 BvR 1430/00, decision from 24 August 2000 (temporary injunction), reprinted in NJW 2001, 3110. The decision can also be found on the website of the Court (www.bverfg.de). Referrals and quotations relate to the paragraphs of the internet version.Google Scholar
31 BVerfG (footnote above), 11.Google Scholar
32 ECHR (footnote 27), paragraph 87.Google Scholar
33 BVerfGE 53, 30.Google Scholar
34 Nollkaemper, Andre, Concurrence Between Individual Responsibility And State Responsibility In International Law, 52 International and Comparative Law Quarterly 2 (2003), 615.Google Scholar
35 France, Selmouni v, ECHR Reports V (1999) 29 EHRR 403, para 87.Google Scholar
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