Territorial principle

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The principle of territoriality (also known as the principle of territoriality ) relates to the application of the law and deals with the question of which law is applicable to which people, when and where. In general, the principle of territoriality says that all persons are subject to sovereignty , i.e. the laws of the state on whose territory they are located. The principle of territoriality can also determine which political rule is applied in a place, for example in language politics.

The opposite is the so-called personality principle .

General

It makes sense that a state can and must legally influence its own citizens and shape societal and social coexistence accordingly. Even in earlier times, in most cultures a member of a tribe was also considered to be subject to the law and customs of that tribe. This so-called personality principle is linked to the person, while the territorial principle is linked to an area in which a right applies.

Problems arise when a state wants to influence people who are not its citizens but are the legal subjects of another state.

In criminal law in particular, the question of the law to be applied always arises in the event of contact abroad . Which law applies in extra-territorial areas (ships in international waters, aircraft over international waters, embassy buildings), for military personnel on missions abroad, for diplomats , on the Internet ?

  • In criminal law , it regulates the scope of the criminal law of a certain country over the offenses on its territory, usually regardless of whether the perpetrator is a citizen of the country or not.
  • In civil law , the applicability of the law of a country to the relevant legal subjects and circumstances is initially determined in particular by the lex rei sitae, i.e. the law of the documented object. (The location of a thing is then the starting point for the applicable law).
  • The applicability of German social law is based  on the place of residence or habitual abode of the person concerned in accordance with Section 30 of Book I of the Social Code, unless supra- or international law or national law stipulates otherwise.
  • In tax law , it regulates in which state (country, canton, municipality, etc.) an income, an asset or an inheritance is taxed, depending on the place of purchase and the main residence of the taxpayer. The principle of territoriality is strictly applied to real estate ; it is taxed where it is located.
  • For the acquisition of citizenship , the territorial principle is sometimes used as a synonym for ius soli (the place of birth and not the nationality of the parents - ius sanguinis - determines the nationality of a child)

In cases with international contact, regulations are required as to which law should apply. Such collision cases are u. a. regulated by private international law and international civil procedural law.

The admissibility of extraterritorial effects of national laws based on the effects principle is controversial. The extraterritorial application of the law also unfolds its effect on its respective addressee through the pressure that arises from the fact that access to the person, the assets or other interests of the addressee may exist. In this context, regulations such as Regulation (EC) No. 2271/96 serve the aim of setting limits to this application of law within one's own territory.

The principle of territoriality in Swiss language policy

In Switzerland , the principle of territoriality is mainly used in language policy . Freedom of language is guaranteed in the Swiss Federal Constitution , but case law grants the cantonal authorities the right to take into account the traditional linguistic composition of the country (principle of territoriality). The cantons and communes can therefore take measures to preserve the traditional boundaries of the language areas and their homogeneity, even if this restricts the freedom of the individual to use his or her mother tongue .

In practical terms, this means that in most areas of Switzerland there is only one recognized language for dealing with the authorities, the judiciary and in public schools. Only in a few districts and communities along the language borders is there a right to freely choose the language in these areas. The Swiss principle of territoriality has no influence on the use of languages ​​in other private or public areas, in business, in newspapers or in culture.

The principle of territoriality is an important contribution to language peace in Switzerland and is generally supported by all parties. Problems with its application exist mainly in the following areas:

  • German - French language border in the cantons of Bern and Friborg
  • Italian-speaking areas with high levels of immigration from German-speaking Switzerland (Locarno in Ticino , Bergell in Graubünden )
  • In many affected areas, Romansh is not at all protected by the territoriality principle . The linguistic integration of German-speaking newcomers is often limited to children of primary school age, provided that there is a Romance school at all.

Questions of the territorial principle in large developing countries

Difficult legal questions can arise when far-reaching development projects in large developing countries have to be decided. As a rule, national infrastructure projects are initiated by the central government, but often bypassing the regional structures and the affected population. Holistic decision-making processes or an environmental impact assessment are not always used.

The Amazon jungle in Brazil is a typical example of this problem area . The federal government endeavors to promote infrastructure and economic development and awards z. B. Licenses to large corporations and for large-scale clearing. The regional structures are not adequately included because they are often politically too weak. As a result, residents are being resettled to a large extent and the area of ​​the primeval forest is rapidly decreasing, without the local economy benefiting in return or climate policy goals being taken into account.

This problem is particularly evident in the Brazilian region of Xingu , where Bishop Erwin Kräutler campaigns - often in vain - for the rights of indigenous people and the preservation of the rainforest. However, due to its origins in Austria, it has a strong media presence in Europe, which has given the threatened region greater weight for several years. This came u. a. 2010 through the presentation of the Right Livelihood Award to Kräutler.

See also

Individual evidence

  1. ↑ Eberhard Eichenhofer,: Social law . 10th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155320-2 , Rn. 83 .
  2. ^ Frank Schorkopf : Basic Law and Supreme State: Conflict and Harmony in the Foreign Relations of Germany , Mohr Siebeck, 2007, ISBN 978-3-16-149480-2 . Pp. 113-114
  3. ↑ Kräutler receives alternative Nobel Prize. In: oesterreich.orf.at. September 30, 2010, accessed November 19, 2018 .