The Changing Role of Nationality in International Law

Serena Forlati, Alessandra Annoni, Serena Forlati, Alessandra Annoni

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136752193
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

The book explores the current role of nationality from the point of view of international law, reassessing the validity of the 'classical', state-centered, approach to nationality in light of the 'new' role the human being is gradually acquiring within the international legal order. In this framework, the collection assesses the impact of international human rights rules on the international discourse on nationality and explores the significance international (including private international) law attaches to the links individuals may establish with states other than that of nationality. The book weighs the significance of the bond of nationality in the context of regional integration systems, and explores the fields of international law in which nationality still plays a pivotal role, such as diplomatic protection and dispute settlement in international investment law. The collection includes contributions from legal scholars of different nationalities and academic backgrounds, and offers an excellent resource for academics, practitioners and students undertaking advanced studies in international law.

1 Staatsvolk and homogeneity

From Weimar to the Maastricht decision of the German Federal Constitutional Court and beyond

Holger P. Hestermeyer¹

Introduction

What is it that makes a people? What is the identity of a nation? These questions have been asked by philosophers, sociologists, and lawyers alike ever since the birth of the modern nation-state in the eighteenth and nineteenth century.² As Italy celebrates its 150th birthday,³ spoiled by a movement that is oscillating between separatism and decentralization, and Europe proceeds on its path towards an ‘ever closer union’⁴ that demonstrates an annoying resilience to all attempts at attaching the comfortingly familiar labels of ‘state’, ‘federalism’, and ‘citizenship’ to it, the debate about identity – European, national, or regional – has been renewed. Advocates for nation-states over the European project couch their arguments in terms of identity, as do advocates of the contrary.

This contribution does not pretend to present the debate in all its complexity. Instead, it will highlight a tiny aspect of it: the debate about homogeneity of the Staatsvolk (or people), popular in the Weimar republic and still referred to by the Federal Constitutional Court in its Maastricht judgment. Homogeneity in this meaning alleges that there is some sociological tie, a common language, history, or common traditions, uniting the Staatsvolk. This contribution will recount the discussion about homogeneity of the Staatsvolk both during the Weimar Republic and today, and then draw on studies in behavioural and cognitive sciences to argue that it is not the absence of such a tie, as some state, but its arbitrariness that makes homogeneity a meaningless criterion. It is reasonable to assume that the German Constitutional Court would agree, as it seems to have laid the criterion of homogeneity of the Staatsvolk to rest in the Lisbon decision.

Jellinek and the Staatsvolk as an element of the state

Georg Jellinek, writing in 1900, as a professor of the University of Heidelberg, identified the Staatsvolk as one of three elements defining a state: territory, government, and Staatsvolk.⁵ His account of the state was the subject of much debate and criticism in the Weimar period. Over time, however, his description became, and today still is, the standard definition of a state,⁶ with others diverging in detail only. Thus, Dionisio Anzilotti would have added independence from a superior power to the three elements⁷ and Article 1 of the 1933 Montevideo Convention on Rights and Duties of States adds the ‘capacity to enter into relations with other states’.⁸

Identifying the Staatsvolk as a necessary element of a state seems obvious to the point of being a truism. Long before Jellinek formulated the now standard definition of the modern state, philosophers had discussed the importance of the people in and for the state. But the identification of the people as at the core of what makes a state raises the question of what exactly constitutes that people. Intuitively, it would seem that not just any random group of people could form a Staatsvolk. But what is the tie binding a group of people into such a Staatsvolk? Jellinek's answer pointed towards another of his elements of the state: government. He postulated that the people are simultaneously the subject of the government and its object. A people's identity as the subject of government binds that people together as a collective, and as such, members of the people are the subjects (and beneficiaries) of public rights recognized by the state.⁹

Staatsvolk and homogeneity

Many writers did not find this to be a satisfactory description of a Staatsvolk. Since antiquity, writers have invoked the need for close relations among the citizens of a state. Plato argued that there was nothing more important for a state than unity and nothing more dangerous than division. He proposed drastic methods,¹⁰ such as dissolving traditional families and imposing communal relationships with women and children, to achieve a state in which citizens could rightly think of each other as relatives.¹¹ Aristotle regarded closer ties among the Staatsvolk as necessary for forming a fully functioning society and state. He wrote:

[A] state is a community of households and families leading a good life together, i.e. a community for the purpose of complete and autarkic life. That cannot be realized if the members do not live in one and the same place and do not intermarry. That is why in states family bonds, tribal alliances, common sacrifices and communal events are formed. Only friendship can achieve this, as the decision to live together is characteristic of friendship.¹²

The close ties among the Staatsvolk discussed by Plato and Aristotle are inspired by, and can only be understood in the context of, the type of state the Greeks considered to be exemplary: the Polis, the Greek city-state. Even though many translators today translate the word as state, the comparison is somewhat forced: only three Poleis had a population of more than 20,000 citizens. A Polis of 1,000,000 amounted, for Aristotle, to a self-evidently absurd suggestion.¹³

With the growth of states beyond the proportions imaginable to Greek philosophy, the ties among members of a modern Staatsvolk must be weaker than those aspired to by Plato or Aristotle. Modern cognitive and anthropological research seems to indicate rather strict limits of the number of people with whom close social relationships can be maintained.¹⁴ The alternative proposed by many writers was that a people must, in some shape or form and to some extent, be homogenous. The proposition obtained powerful jurisprudential support when the German Federal Constitutional Court considered homogeneity a characteristic of a Staatsvolk in its Maastricht judgment. In the decision, the Court examined the compliance of the Maastricht Treaty on European Union (TEU) with German constitutional law. It argued that Europe's indirect legitimization via the population of nation states, the Staatsvölker, imposes limits on integration:

States require their own fields of competencies of sufficient importance, in which the respective Staatsvolk can develop and articulate itself in a process of political decision-making both legitimized and controlled by itself and thus give legal expression to those things that unite it, relatively homogenously, spiritually, socially and politically.¹⁵

The statement sparked much controversy in German legal academia. One of the reasons was that it was referenced to an article by Hermann Heller,¹⁶ a German-Jewish legal scholar of the Weimar era,¹⁷ who had only called for social homogeneity of a Staatsvolk. The Federal Constitutional Court's ideas about homogeneity rather seemed to stem from another source, Carl Schmitt,¹⁸ whose history of anti-Semitism and arguments in defence of Nazi policies¹⁹ in the 1930s made him an authority that could not be quoted.

Homogeneity and Methodenstreit

To avoid any possible confusion it must be pointed out that German constitutionalists use the term ‘homogeneity’ in two entirely different contexts. As the ‘principle of homogeneity’, the term refers to the requirement of structural similarity of different levels of government in federal states or integration systems. Thus, the German Basic Law in Article 28(1) demands that ‘[t]he constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law.’²⁰ This Article discusses a different use of the term, namely homogeneity as a sociological requirement of some commonality among the citizens of a state.

Weimar era scholars remain central to that concept of homogeneity. As one of their fundamental disagreements was about the correct methodology, their discussions entered history under the buzzword Methodenstreit, or literally a conflict about methods. The historic backdrop of the debate was the politically instable Republic of Weimar. Having lost the First World War at an enormous cost (1.8 million dead, 4.2 million injured, 0.6 million prisoners of war, not to speak of economic costs) Germany's monarchic government was swept into history. Germany became a republic, and was declared so twice – by the social democrat Philipp Scheidemann and the socialist Karl Liebknecht. Wedged between right-wing and left-wing radicals, the Weimar Republic experienced upheaval and instability entirely unknown to today's Germans. That upheaval is vital for understanding the period and its intellectual debates.

The instability can be illustrated by a short overview of events in the early years of the Republic. January 1919 saw the army and right-wing paramilitaries break up a left-wing attempt at revolution, as well as the murder of the socialists Rosa Luxemburg and Karl Liebknecht. In February, the minister president of Bavaria, Kurt Eisner, was shot to death and a communist government seized power illegally, executing its political enemies. The military intervened, having already subdued uprisings in the Ruhr, Berlin, and other areas of Germany. The new Constitution, adopted in July 1919, did not stabilize the situation and the 1920 coup attempt by military officers, known as the Kapp-Putsch, forced the government to flee. Even after the failure of the Putsch, the Republic remained in crisis, as demonstrated by the use of troops in the Ruhr area to fight a Red Army formed by left-wing militants; the assassination of the former Finance Minister Matthias Erzberger in 1921, and of the Foreign Minister Walther Rathenau in 1922 by rightwing radicals; the occupation of the Ruhr by France and Belgium in 1923, to enforce reparation claims; and Adolf Hitler's failed coup in Munich in 1923.²¹

Traditional legal positivism fared poorly in this environment and Jellinek's understanding of the state came under severe attack. Hans Kelsen favoured purging legal methodology from other (e.g. sociological) influences²² and regarded the state merely as a system of laws.²³ Offended by the dissociation of the state and reality in the works of Kelsen, and influenced by the philosophical thoughts of Theodor Litt,²⁴ Rudolf Smend characterized the state as an intangible, but real, structure in a constant process of renewal that he called integration. Integration can be achieved by three means: through persons, through acts aiming at social synthesis, and through material goals of the state, such as rights.²⁵

Schmitt also advocated a more sociological approach. He regarded positivism and the validity of norms as limited to normal situations,²⁶ and thought of decisions as a better theoretical basis for the legal system than norms.²⁷ His Verfassungslehre, published in 1928, further developed his thinking on the state a...