State people

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The state people is the totality of the people united by the rule of a state . In addition to the national territory and state authority , it is one of the three elements in the sense of international law .

Concept and delimitation

Under state people are understood by Reinhold Zippelius the living in the territory of the people , which he not only nationals expects, but all who are subject to the control power of the state, including foreigners and stateless persons . As early as 1925, Hans Kelsen took the position that the foreigner also belonged to the people of the state, he simply did not have the rights of citizens. The constitutional lawyer Karl Brinkmann declares it to be irrelevant whether the people belonging to a state “belong to a people or not”, which is why he prefers the term population .

The prevailing opinion , on the other hand, defines the people of the state as the sum of the citizens who are legally related to their state and the persons who may in principle be equal to them under constitutional law. What is meant by this is no people in the ethnic sense or part of a people who live in a state ( ethnic group ) ; What is meant are people with common citizenship, i.e. citizens of a state (citizen), regardless of the nationality (ethnicity, origin) of the individual citizen. As a society , citizens have a special personal relationship with the state in addition to their regular subjection to state authority (at least when they reside in Germany ): Citizenship is a status that establishes reciprocal rights (at least in democracies) and obligations for citizens.

The concept of the state people is to be distinguished from

  • the concept of those subjected to violence : that means everyone who is in the national territory and is consequently subject to territorial sovereignty , d. H. the persons subject to the territorial rule of a state, i.e. also foreigners or travelers (regardless of citizenship and nationality);
  • the term of the citizenship : this means all those who participate in the status activus , in particular in the right to vote . This is determined by the respective national law; mostly domicile in Germany and always a minimum age is required (for Germany cf. Art. 38 Para. 2 GG and § § 12  ff. Federal Election Act ); corresponds to the demos , which forms the basis of popular rule , democracy .
  • the concept of the population (or regional society ): this is all persons with residence in the national territory (a certain area is populated by people = inhabited);
  • the concept of ethnicity : these are people with a common ethnic origin as the nationals, e.g. B. the " German people belonging to the people " within the meaning of Section 6 of the Federal Expellees Act (BVFG) - this includes foreign nationals and stateless persons.

The state people (all citizens of a state) as a constitutive element of the state is determined in international law via the formal link of citizenship. From the connection to citizenship it follows that even multiethnic states only have one nation. While the people of the state are only determined by their common affiliation to the ruling order of a state, the right of self-determination of the people is based on the ethnic, cultural and social characteristics of a people or an ethnic group.

Legal links to membership of the national people

The extent of the rights of the state people can vary greatly: in free democracies it is wide, in dictatorships it can shrink to nothing.

As a rule, the nationals retain their political participation rights (status activus) ( e.g. admission to public office; right to vote); however, this is not mandatory. In the meantime, due to European law, all citizens of a member state of the European Union have the right to vote in local elections in every other member state.

Also, positive entitlement rights (status positivus) are often reserved for nationals. So apply z. B. Legal entitlements from social assistance only partially (cf. for the Federal Republic of Germany, for example, Section 23, Book Twelve of the Social Code ). In particular, only nationals are entitled to consular assistance abroad .

Even freedom and defensive rights are partly reserved for members of the state's population. The Basic Law, for example, recognizes fundamental rights that everyone and those that only Germans have . However, this does not fundamentally rule out equal treatment under simple law. Citizens of an EC member state may be entitled to equal treatment, for example from the fundamental freedoms of European law.

Just as the above rights and obligations are typical, but not necessary, peculiarities of the legal status of nationals, nationals and foreigners are only regularly equal in terms of their general legal obligation (status passivus) .

The state people in federal German constitutional law

The term state people is not explicitly mentioned in the Basic Law for the Federal Republic of Germany . However, the Federal Constitutional Court uses the term German people (cf. preamble; Art. 56 , Art. 146 GG) or people (cf. Art. 20, Paragraph 2, Clause 1 GG: “All state authority comes from the people”) of the Basic Law legally the same as the term national people - although here we are dealing with differences - which in turn is principally determined by nationality; the Federal Constitutional Court also counts among the people of the state the status Germans who are equal to German nationals in Article 116.1 of the Basic Law (definition of the term German in the sense of the Basic Law) . This meant who " has found admission as a refugee or expellee of German ethnicity or as his spouse or descendant in the area of ​​the German Reich as of December 31, 1937 ".

Decisive for belonging to the German people within the meaning of the Federal German Basic Law is primarily the legal status as a citizen and not belonging to a people or tribe , for example in the ethnic or sociological sense. Naturalized migrants of non-German nationality therefore belong to the German people and can therefore take part in political elections , among other things , without contradicting the Basic Law.

The state people in Austrian law

As in the Federal Republic of Germany, the concept of the state people is not explicitly mentioned in the Austrian Federal Constitution or the Austrian federal laws, but is reflected in the concept of citizenship. Citizenship in Austria is a legal status that is independent of the citizen's ethnicity.

Austrian citizens are also citizens of the federal state in which they have their main residence ( Art. 6 B-VG). All Austrian citizens are treated equally before the law ( Art. 7 B-VG).

In contrast to the absolute number of Austrian citizens, the concept of the federal people denotes the subset of Austrian citizens entitled to vote ( Art. 26 B-VG). With elections, referendums and referendums, the federal people exercise an essential function in the legislation of the Republic of Austria. In particular, an overall amendment to the Federal Constitution requires a vote by the federal people ( Art. 44 Para. 3, Art. 45 B-VG), most recently when Austria joined the EU .

Provisions regarding the acquisition and loss of Austrian citizenship as well as related procedures are the subject of the Citizenship Act of 1985. In 2005, the Austrian National Council passed an amendment to the law claimed by the Austrian Federal Council , with which the provisions regarding the granting of Austrian citizenship to foreigners (foreigners) were tightened. Among other things, the amendment provides that foreign citizenship applicants, as a prerequisite for being granted Austrian citizenship, demonstrate sufficient knowledge of the German language as well as “basic knowledge of the democratic order as well as the history of Austria and the respective federal state” Have to provide evidence ( Section 10a Paragraphs 1 and 5 StbG).

See also

Web links

Wiktionary: Staatsvolk  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Reinhold Zippelius: Allgemeine Staatslehre. A study book . 16th edition, CH Beck, Munich 2010, p. 63 f.
  2. ↑ Hans Kelsen: Allgemeine Staatslehre , 1966, p. 160.
  3. ^ Karl Brinkmann: Constitutional theory. 2nd, supplemented edition, R. Oldenbourg Verlag, Munich / Vienna 1994, ISBN 978-3-486-78678-1 , p. 7 (accessed via De Gruyter Online).
  4. ^ Josef Isensee / Paul Kirchhof (eds.): Handbook of the constitutional law of the Federal Republic of Germany , vol. X: Germany in the community of states , CF Müller, 3rd edition, Heidelberg 2012, pp. 47 , 226 ; to the HM Ulrich Vosgerau : The right to self-determination in the world community . In: Josef Isensee / Paul Kirchhof (eds.), Handbook of Constitutional Law of the Federal Republic of Germany , Vol. XI: Internationale Bezüge , 3rd edition 2013, p. 95; see. for the Federal Republic of Germany, for example, Article 116 (1) GG ; see. also BVerfGE 83, 37 (51) - Right to vote for foreigners I.
  5. ↑ Werner Freistetter, People groups and ethnic minorities as a question of the image of man , in: ders., Rudolf Weiler (Ed.): The unit of cultural ethics in many forms of ethos , Duncker & Humblot, Berlin 1993, p. 107 f. ; Christoph Schnellbach, Minority Policy in East Central Europe in the Process of EU Enlargement , Wiener Verlag für Sozialforschung, Bremen 2013, p. 33 f.
  6. ^ Eva-Maria Tieke, The Subject of Democratic Legitimation in the European Union , Tectum Verlag, Marburg 2016, p. 132 .
  7. ↑ See Hermann Heller , Staatslehre , Tübingen 1983 [1934], p. 230.
  8. ↑ Marcel Kau: The state and the individual as subjects of international law . In: Wolfgang Graf Vitzthum and Alexander Proelß (eds.): Völkerrecht . 7th edition, de Gruyter, Berlin / Boston 2016, ISBN 978-3-11-044130-7 , p. 199, Rn. 77 (accessed via De Gruyter Online).
  9. ↑ BVerfG, judgment of October 31, 1990, BVerfGE 83, 37 (50 f.)
  10. ^ Republic of Austria, Parliament ( Memento from September 29, 2007 in the Internet Archive )
  11. ↑ Federal Law Gazette I No. 37/2006