Right to a home

from Wikipedia, the free encyclopedia

Right to a home refers to a derived contentious right of the individual to live in his home country . This right was derived from the prohibition of banishment and the arbitrary withdrawal of citizenship as well as the right to return migration ( Universal Declaration of Human Rights ) and is found above all in the charter of the German expellees from the expellees associations . It has not yet been generally recognized in international law .

In the international legal literature there are no explicit references to the existence of a “right to a home” in the sense of protection against having to leave it by having to emigrate to another state outside of the German legal system . There are individual efforts to derive such a claim from the partial international regulations. Furthermore, an ethnic group's legal right to return to their ancestral territory is only affirmed in theory and would create considerable problems in practice, for example through “re-nationalization” and immigration. The United Nations has recognized the right of return in connection with the right of self-determination of the peoples, in particular Palestine , Cyprus , Cambodia and Afghanistan .

In the constitutional law of the Federal Republic of Germany , a “right to a home” is occasionally derived from the civil right to freedom of movement according to Article 11 of the Basic Law . Accordingly, Art. 11 GG protects the right to stay and domicile at any place within the federal territory and thus implies a constitutionally protected “right to home” with the content of being allowed to remain at the chosen place of residence. An independent “right to a home” that goes beyond this area of ​​protection cannot be inferred from the constitution. The Federal Constitutional Court , among others, takes this view . The state constitutions of Baden-Württemberg (Art. 2, Paragraph 2 BWVerf) and Saxony (Art. 5, Paragraph 1, Sentence 2, SächsVerf) expressly provide for the right to a home.

Occasionally, the “right to a home” is also understood in the sense that a person's “home” must be protected from “ foreign infiltration ” through immigration and gainful employment “ foreigners ”. Practices that can be derived from such views can in Germany violate the prohibition of discrimination in Article 3 (3) of the Basic Law, according to which no one may be favored or disadvantaged because of their “home and origin”. In addition, if they are directed against EU citizens , they violate EU law.

Discourses in Germany

Displacement for political and ethnic reasons

Photo of a monument with an inscription
Home right as a human right: Monument to expellees in Unterretzbach in Lower Austria

The charter of German expellees published on August 5, 1950 postulated a “right to home” and tried to justify it on a natural law basis. The “right to home” did not become a generally recognized concept of international law .

In the 1950s, in the Federal Republic of Germany, the propagation of a return of the expellees was established on the basis of an allegedly guaranteed right to a home under international law , in order to dispel mutual resentment of locals and immigrants in domestic politics and to present the expellees' stay as a temporary measure. In terms of foreign policy, it was used by almost all parties to legitimize territorial claims. In the political conflict of the Cold War , the proclamation of a right of home by the organized expellees and the resulting claims for the return of the homeland of the expellees were criticized by their political opponents as " revanchism ". With the exception of the KPD , all parties had the phrase “right to home” or the compound home right in their election manifestos.

The term was later used as a catchy political catchphrase , especially by right-wing extremist parties such as the DVU and the NPD . The political scientist Karl Dietrich Bracher stated in 1980: "Nowhere did the slogan 'Right to a home' and the demand for border revision sound more strongly than in the NPD."

The political demand for a “right to a home” in the sense of a right to return to former German settlement areas is not very widespread today outside of the associations of expellees, and most of its members are not very interested. According to its own statements, only a numerical minority of two of the 15 million displaced persons belong to the Federation of Expellees . Critics consider these membership numbers to be far too high.

The thesis of the right to the home is mainly due to the German international law Kurl Rabl , Rudolf Laun , Otto Kimminich and Dieter Blumenwitz worn, and the Austrian international law experts Felix Ermacora and the American international lawyer, historian and winner of the Human Rights Award of the Sudeten German Alfred de Zayas also explained in connection with the " ethnic cleansing " in Yugoslavia . Blumenwitz, Dietrich Murswiek , Herbert Kraus , Theodor Veiter and Frans du Buy postulated a right to a home as an expression of the right to self-determination . The federation of expellees and its subdivided country teams are based on z. Some of the expertises prepared by these legal scholars on their behalf .

These experts also sit on the committees and working groups of the associations of expellees and occasionally publish in the publishers and series of publications they are responsible for. De Zayas, Ermacora and Blumenwitz represent a minority position in assessing the expulsion of the Sudeten Germans as genocide , which is particularly supported by the national-conservative spectrum of opinion. Christian Tomuschat , for example, rejects the genocidal character of the expulsion of the Sudeten Germans . The classification as genocide and its prohibition is the basis of the construction of a “right to a home”. This right is based on an ethnically conceived collective, in which some critics see the continued attempt to break up Czechoslovakia with a division of Bohemia and Moravia according to ethnic criteria.

Christian Graf von Krockow warns against overstretching the term “home”. In particular, the idea that the “right to a home” could be “bequeathed to children and grandchildren” is absurd. “Home is reborn with every person, just as it dies with every person,” von Krockow states. The "right to a homeland is turned into an injustice, a threat, if it is declared hereditary and such an inheritance is made a claim against others."

Loss of home due to lack of usability

People whose place of residence has become uninhabitable or is threatened by natural disasters or human intervention can also be regarded as (potentially) “displaced persons”. In 2002, the Federal Office for Radiation Protection supported the thesis that there is a “right to a home” in its approval of the on- site interim storage facility at the Grohnde nuclear power plant . However, this “right to a home” does not mean that residents of an interim storage facility for fuel elements have the right to have the operation of this facility prohibited.

Opponents of the Garzweiler II open-cast lignite mine sued the project at the Federal Administrative Court on the grounds that the demolition of entire villages violated their “fundamental right to a home”. This view was rejected by the court in 2008. The reasoning:

The approval of the general operating plan does not affect the scope of protection of freedom of movement because this fundamental right is to be understood as the right to a home and insofar it secures connections that are not covered by the property guarantee (but see: Baer, ​​on the “right to home” - Art. 11 GG and resettlements in favor of open-cast lignite mining, NVwZ 1997, 27). Home is understood here as a voluntarily chosen, identity-creating, territorially-related and secured context (Baer, ​​NVwZ 1997, 27 <30>). The importance of the homeland understood in this way may justify the desire to stay at the residence once chosen. Nevertheless, this identity-creating context is not as such a protected asset of the fundamental right to freedom of movement. The fact that, as a result of the approval of a framework operating plan, the mining company will try to acquire the required land, be it by hand or by way of land assignment, makes the loss of the opportunity to live in the location chosen one of the fate of many. However, this does not change the fact that, for the individual holder of basic rights, remaining in their home country depends on ownership of a plot of land suitable for living (or on a right of use derived from ownership). The dissolution of a place perceived as home is a consequence of the property acquisition by the developer.

As early as 1983, in connection with the construction of the Negertal dam , through which the village of Brunskappel was supposed to disappear under the surface of the water, the “right to home” was brought before the court as an argument.

Worldwide discourses

The Catholic Bishop of Banja Luka , Franjo Komarica , who campaigns primarily for displaced people in the former Yugoslavia , also speaks of a “right to a home” . He justifies this right theologically: “Every human being was created as Adam , from earth and from the earth, and from that earth where he is born. The earth is a necessary part of every human existence. The place of birth is not only the room in which the person arose, but also the room from which he is composed. "

A right to a home is propagated by the Society for Threatened Peoples (GfbV). This also included the request of the STP international to include this right in the Charter of Fundamental Rights of the European Union in 2000.

Greenpeace warns that residents of low-lying areas that are threatened by the rise in sea levels due to climate change also have a “right to a home”.

Generalizing Anne Peters , Professor of International and Constitutional Law at the University of Basel , states: “Environmental degradation [...] in principle undermines all human rights recognized in international legal texts. For example, freedom of establishment and residence or the right to a home in low-lying and atoll states can be jeopardized by rising sea levels. In particular, the rights to private life, health and fresh water, and to a limited extent the right to life, are only effective in a natural environment that is not excessively polluted. "

Scientific assessment

The political scientist and migration researcher Rainer Bauböck criticized the demand for a “right to a home” in the sense of a right to live in the country in which one was born or grew up as one-sided. According to Bauböck, this requirement presupposes that migration and emigration are phenomena that can only be assessed negatively: on the one hand for the people who left their original homeland (and thus "lost"), on the other hand for the societies that would have to accept these immigrants thus endangered their own culture if the immigrants were “ strangers ”.

The “right to home” is also used as a justification to restrict and select further immigration by claiming that the further influx of “foreigners” means that “home” ceases to be home by the country in which one lives, being “foreigned”.

Only in the second instance does the demand for a “right to a home” serve to improve the living conditions in the countries of origin of those who wanted to leave them or who were considering whether they wanted to return there voluntarily, and only last but not least the “right to home” becomes Understood in the sense of an obligation to take in refugees who could not return to their homeland, that is, as an obligation to provide a “new home” for refugees. Accordingly, immigrants could not claim that the “right to a home” implies a right to stay after immigration. Even less a person who is not privileged (e.g. through EU citizenship ) can invoke a “right to a home” in a country in which he has never lived: “Nobody can lay claim to a home where he is not grew up. ", says Rainer Bauböck.

In 1989 Ralf Dahrendorf protested against deriving a right to a homeland in the sense of the creation of states or regions in which each “own” ethnic group forms a majority from the peoples' right to self-determination . Shortly before the dissolution of the Soviet Union , he proposed the thesis: "There is no right of Armenians to live among Armenians" and not as a national minority together with other ethnic groups in a multiethnic state . By invoking the right of peoples to self-determination , politicians generally wanted to make not only changes to national borders but also the ethnic composition of the population in an area appear legitimate. So it was already Woodrow Wilson , who spoke first excessively from a "self-determination" gone primarily about the destruction of Austria-Hungary to justify. “The so-called right to self-determination has served as an alibi for homogeneity , and homogeneity always means the expulsion or suppression of minorities,” says Dahrendorf.

A statement by the then Federal Minister of Labor , Norbert Blüm , speaks against the thesis that talking about the “right to a home” is not about helping people who came to Germany as (economic) migrants : “Our care accompanies them Returnees. Your home countries should be helped. Because only then is the world in order when the right to work is not separated from the right to a home. The jobs have to go to the people and not the other way around. The world is upside down as long as this is different. "

See also

literature

  • Rainer Bauböck: Is there a right to immigrate? Series: Political Science 18th Institute for Advanced Studies, 1994.
  • Karin Böke / Frank Liedtke / Martin Wengeler: Key political vocabulary in the Adenauer era . Walter de Gruyter, Berlin / New York 1996.
  • Gilbert H. Gornig / Dietrich Murswiek (ed.): The right to the home. Constitutional and international law treatises of the study group for politics and international law . Cultural Foundation of the German Expellees , Duncker & Humblot, Berlin 2006, ISBN 978-3-428-12063-5 (review) .
  • Otto Kimminich : The right to the homeland , 3rd revised and expanded edition, Kulturstiftung der Deutschen Vertaufenen, Bonn 1989, ISBN 3-88557-066-1 .
  • Kurt Rabl (ed.): The right to home. Lectures. Theses. Criticism (= studies and discussions about homeland and homeland law, 2), ed. in the order d. Evang. Akad., Arnoldshain; d. Albertus Magnus College, Königstein and in conjunction with d. Research center for nationalities and Language issues, Marburg / L., Munich 1965.
  • Walter Doskocil: Right to Home , Munich 1964.
  • Frans du Buy: The Right to Home in the Historical-Political Process. VZD-Verlag for Contemporary Documentation, Euskirchen 1974.
  • Dieter Blumenwitz (ed.): Right to the home in Europe that is growing together. A basic right for national minorities and ethnic groups (series of publications by the West-Ost-Kulturwerk e.V., Bonn), Frankfurt am Main 1995.
  • Rudolf Laun: The Right to Home , 1951.
  • Alfred de Zayas : Right of home is a human right. The arduous path to recognition and realization. Universitas, Munich 2001.
  • Dieter Radau: The right to a home in the law of the European Union. In: Blumenwitz / Gornig / Murswiek (eds.): The European Union as a community of values, cultural foundation of the German expellees (= treatises on constitutional and international law by the study group for politics and international law; 22), Berlin 2005, pp. 159–168.
  • Dieter Radau: The right to a home helps build bridges. Lübeck 1990.
  • The right to the home . Symposium, lectures and debates, ed. on behalf of the Albertus Magnus Kolleg, Königstein, and the Evangelical Academy Arnoldshain, as well as in connection with the Research Center for Nationality and Language Issues, Marburg / Munich 1958–1960.
  • Timeline and bibliography on the problem of displaced persons , ed. from the Federal Ministry for Expellees, Refugees and War Victims. In: Federal Ministry for Expellees, Refugees and War Victims (Ed.): Displaced Persons Problem, Right to Home and Self-Determination in the German Parliament (from 1949 to mid-1960) , Vol. 2, Bonn 1960. (Minister responsible: Theodor Oberländer )

Web links

Individual evidence

  1. ↑ Lexicon entry right to home  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. in Wissen.de , Wissen Media Verlag@1@ 2Template: Toter Link / www.wissen.de  
  2. ↑ Peter Pernthaler , Allgemeine Staatslehre und Verfassungslehre , 2nd edition, 1996, pp. 58–59 .
  3. ↑ Federal Office for Radiation Protection: Approval for the storage of nuclear fuels in the on-site interim storage facility in Grohnde of the Gemeinschaftskernkraftwerk Grohnde GmbH, the Gemeinschaftskraftwerk Weser GmbH and the E.ON Kernkraft GmbH . December 20, 2002 (PDF, p. 146; 1011 kB) ( Memento of the original from January 12, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2Template: Webachiv / IABot / www.bfs.de
  4. ↑ BVerfG, 1 BvR 3139/08 of December 17, 2013, paragraph no. 250.
  5. ↑ Karin Böke / Frank Liedtke / Martin Wengeler, Political Leitvokabeln in der Adenauer-Era , 1996, p. 185 .
  6. ↑ Archived copy ( memento of the original dated November 11, 2010 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.dvu-thueringen.de
  7. ↑ http://www.npd-krefeld.de/flugblaetter/heimat.pdf  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.npd-krefeld.de  
  8. ^ Karl Dietrich Bracher, The German dictatorship. Origin, structure, consequences of National Socialism , 5th edition, Kiepenheuer & Witsch, Cologne 1976, ISBN 3-462-01143-X ; Unabridged edition based on the 7th edition, Ullstein, Berlin 1997, ISBN 3-548-26501-4 , p. 527.
  9. ↑ Do Grandma a Favor, in: Der Spiegel 21/1996, May 20, 1996.
  10. ↑ BdV website ( Memento of the original from October 31, 2013 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bund-der-vertrieben.de
  11. ^ Controversy over the number of members: BdV defends itself against allegations ( Memento from January 10, 2010 in the Internet Archive ), tagesschau.de from January 7, 2010.
  12. ↑ Interview with Alfred de Zayas, Junge Freiheit, June 9, 2006, p. 6 .
  13. ↑ WDR "Expulsion Crimes Against Humanity" ( Memento of the original from December 3, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2Template: Webachiv / IABot / www.clicc-coaching.de
  14. ^ Hans Henning Hahn: Sudeten Germans. Where is their home? , Spiegel Online from June 1, 2002.
  15. ↑ Christian Graf von Krockow: Vom Recht und Unrecht auf Heimat , trade union monthly issue 4/1988, p. 223 (PDF; 64 kB).
  16. ↑ Federal Office for Radiation Protection: Approval for the storage of nuclear fuels in the on-site interim storage facility in Grohnde of the Gemeinschaftskernkraftwerk Grohnde GmbH, the Gemeinschaftskraftwerk Weser GmbH and the E.ON Kernkraft GmbH . December 20, 2002, p. 146 ( Memento of the original of January 12, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 1011 kB). @1@ 2Template: Webachiv / IABot / www.bfs.de
  17. ^ Judgment of the Federal Administrative Court of September 29, 2008
  18. ↑ Construction of a dam. A village disappears. A millennium of local history is drowned in the floods. Die Zeit , No. 14/1983.
  19. ↑ God gives the right to a home. Bishop Komarica at the 3rd International Congress Meeting Point World Church of “Church in Need” , 2008 ( Memento from December 6, 2015 in the Internet Archive ) (DOC file; 44 kB).
  20. ^ Society for Threatened Peoples: For the protection of minorities in the EU Charter of Fundamental Rights. Bolzano, April 21, 2000 .
  21. ↑ /index.php?id=3920 Before the Flood . greenpeace magazine 5/2000
  22. ↑ Expert panel: Anne Peters: Is there a human right to a clean environment? Human rights and environmental protection: On the synergy of subregimes under international law. University of Basel, 2008  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. .@1@ 2Template: Toter Link / ius.unibas.ch  
  23. ↑ Rainer Bauböck: Is there a right to immigrate? Political Science Series 18. Institute for Advanced Studies, Vienna 1994, p. 23.
  24. ↑ Ralf Dahrendorf: Only people have rights. The right of peoples to self-determination is a barbaric instrument. Die Zeit, No. 18/1989.
  25. ↑ Georg Gruber: Foreign unemployed people are offered a return bonus . Deutschlandradio, November 10, 1983 ( Memento of the original from November 28, 2009 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.dradio.de
  26. ^ Alfred de Zayas : The right of home is a human right. In: alfreddezayas.com. Retrieved January 26, 2019 (speech on Danziger Day , Lübeck August 22, 2004).