In 2015 the Administrative Court of Cologne found the claim to be admissible but reject! it on the merits (see here and for a comment here, both in German). Nonetheless, the Court’s decision – partly explicitly and partly implicitly – clarifi! three important issues. First, the claimants enjoy standing before German courts.
That is because fundamental rights such as the right to life apply The First Instance
Whenever and wherever German public authority is exercis!. Their applicability is not limit! by the mere fact that public authority was exercis! whatsapp number database extraterritorially and consequently does not require “effective control” over foreign territory. Secondly, this extraterritorial dimension also applies to positive obligations. Thirdly, the political question doctrine has no place in German constitutional law.
Yet, the Court limit! its judicial scrutiny due to two considerations. Firstly, while positive obligations require measures that are at least apt to protect the respective right (Untermaßverbot), the Court’s scrutiny is limit! to examining whether they are “evidently impractical” (“evident unzureichend”). Besides this, the foreign relations the “great evening” of enjoyment will not take place dimension of the case also vests the executive with wider discretion (Ermessensspielraum) to the detriment of judicial review competences. On that basis, the Court did not contest the German government’s legal assessment which found no reason to question the legality of US drone strikes in Yemen. Furthermore, Germany did not remain wholly inactive but sought assertions by the US that it complies with German and betting email list international law. Such declarations constitute, according to the Court, an apt measure that is not “evidently impractical”. Hence, it conclud! that Germany fulfill! its positive obligation towards the claimants.
The Decision of the Higher Administrative Court
On appeal, the Fourth Senate of the Higher Administrative Court agrees with the Cologne Court on the doctrinal point of departure: It confirms that the claimants can rely on a positive obligation and that there is, in principle, a wider margin of discretion to be afford! to the executive. Yet, from that point onwards the two decisions diverge.