Three-element teaching
After the three-element theory (also elements three teaching called) by Georg Jellinek is the state a social structure whose constituent features one of boundaries surrounded territory ( territory ), a fact-based as a core population of people ( a citizen ) and denote a state power ruling in this area .
term
In constitutional law no generally accepted definition of the term exists State . Georg Jellinek, in his legal definition, described the state as "the body of a settled people ( regional authority ) equipped with original rulers ". In the Jellinek Triassic , the state characteristics are based on three elements:
- a national territory ,
- a nation ,
- a state authority .
If one of these characteristics is not present, then according to the prevailing doctrine (among other things in the German legal system the general state doctrine ) is not spoken of a state.
criticism
In the literature, the three-element concept is criticized as inadequate. Various constitutional lawyers try to expand it with some additional elements.
According to Walter Maier, the fourth element is the requirement of a state constitution . Maier defines the state as "a unit of people endowed with original rulership, living in a certain area and linked and cooperating on the basis of a constitution." Maier also criticizes the fact that the three-element doctrine "is unable to explain in constitutional and political terms why the three basic elements lead to a state unity".
Furthermore, as a fifth element, external representation under international law is sometimes required as an essential feature of a state, since a state without such representation under international law can neither exist nor would be recognized in the international community (as a result of globalization ).
Hans Kelsen, in turn, saw the state's underlying norms as the most important prerequisite for its existence. In contrast to Jellinek and Carl Schmitt , he opposed purely power-political considerations, among other things, to the principle of constitutional jurisdiction and the control of norms .
Various other requirements for statehood are discussed in the literature. Third countries often impose additional requirements for recognition (e.g. the EC for the recognition of the successor states of Yugoslavia ), although it is unclear whether these are requirements relating to statehood or mere political claims for recognition.
According to the constitutive theory, recognition by third countries is a prerequisite for statehood, with the opposing declaratory theory being the dominant view in practice and teaching.
Finally, under Article 1 of the 1933 Montevideo Convention , an entity must have the ability to conduct external relations.
Application examples
Jellinek's three-element theory plays a special role in legal lectures in public law , as it enables the classic concept of the state to be defined. Maier explains that "the three-element doctrine [is] still usable for classification under international law, since it has the advantage of conceptual clarity".
The Sealand fortress off the coast of Great Britain is often chosen as the subsumption example for the three-element theory . The Cologne Administrative Court set using fixed the three-element theory of Jellinek that Sealand had neither a citizen nor territory.
See also
literature
- Walter Maier: State and Constitutional Law , Green Series, Erich Fleischer Verlag, Achim, ISBN 3-8168-1014-4 .
- Alfred Katz: Constitutional Law. Basic course in public law , CF Müller Verlag, Heidelberg, ISBN 3-8114-0811-9 .
Individual evidence
- ↑ Georg Jellinek: Allgemeine Staatslehre (= law of the modern state , vol. 1). Berlin 1900; 2nd ed. 1905, pp. 381-420 ( digitized version ); 3rd ed. 1914, pp. 394-434 ( digitized version ).
- ^ Alfred Katz, Constitutional Law. Basic course in public law , 18th edition 2010, p. 13.
- ↑ Walter Maier, Staats- und Verfassungsrecht , 2001, p. 29.
- ↑ Walter Maier, Staats- und Verfassungsrecht , 2001, p. 29.
- ↑ See a compilation z. B. in James R. Crawford, The creation of states in international law , 2007, p. 422 ff.
- ↑ Walter Maier, Staats- und Verfassungsrecht , 2001, p. 29.
- ^ VG Cologne, judgment of May 3, 1978, Az. 9 K 2565/77; printed in DVBl. 1978, 510 ff.
