Die Anwendbarkeit der EMRK in Zeiten komplexer Hoheitsgewalt und das Prinzip der Grundrechtstoleranz

Growing transnational integration leads to an incremental exercise of governmental functions abroad and to increasing transferrals of governmental authority to international organisations. The question arises where, for whom, and under which conditions the European Convention of Human Rights (ECHR) is applicable. This issue involves first the question of the scope of the Convention, second the problem of the attribution of potentially illegal acts to a member state of the convention, and third question of the Strasbourg Human Rights Court's jurisdiction. The starting point of reflections on scope, attribution and jurisdiction is the insight that the ECHR is a regional human rights instrument, and that some kind of coordination of multiple regimes is required in a polycentric and polyarchic world. Therefore the application of the ECHR outside the espace juridique of the Convention and in situations, in which international organisations are involved, should remain the exception. International legal coordination presupposes respect for foreign state sovereignty, but also respect for the autonomy of other autonomous political actors, such as the United Nations. On the other hand, a categorical non-application of the Convention in constellations of complex jurisdiction would run counter to the idea of effective human rights protection. The paper deals with that tension. Part I. analyses the ambiguous term »jurisdiction« as laid down in Article 1 ECHR. Part II. systematises the relevant Strasbourg case law in comparison to decisions of other national and international adjudicatory bodies. The paper distinguishes »territorial« cases (part I.1.), and cases involving international organisations (part I.2.). The latter constellation is governed by various, partly contradictory principles. On the one hand, member states are not allowed to escape their obligations under the ECHR by transferring powers to other organisations. On the other hand, the Strasbourg Court exercises judicial self restraint vis-à-vis the EU. Finally, the Court has introduced the criterion of »ultimate control« in order to determine the attribution of an act to an international organisation, which leads to an easy negation of responsibility of the involved ECHR member states. Part III. presents an alternative approach for the assessment of the applicability of the Convention and for attribution. Ultimately, the paper suggests a solution on the level of substantive law, not on the level of the Court's jurisdiction. This solution should be based on a rebuttable presumption of equivalent protection (principle of fundamental rights tolerance). Moreover, the possibility of modifications of human rights obligations should be acknowledged, in order to avoid an undue burden of the ECHR member states.