Definition and Legal Basis of Federal Territory
Das Federal territory is a legally central term in German constitutional and state law. It refers to the spatial extent within which the Federal Republic of Germany exercises its sovereign authority. The definition of the federal territory is fundamental for the area of application of German laws, the determination of statehood, nationality law, jurisdiction of German courts, as well as the demarcation from other territories. The term encompasses aspects of constitutional, international, European and administrative law.
Legal Foundations
The decisive normative basis for the federal territory is Art. 23 para. 1 sentence 1 and Art. 116 para. 1 Basic Law (GG). While the Basic Law originally had a provisional scope of application, Art. 116 para. 1 GG defined the areas that formerly belonged to the German Reich as relevant. The current legal status is primarily the result of the consequences of the Second World War and a unified Germany since 1990.
Art. 23 Basic Law (Versions before and after Reunification)
Before German reunification, Art. 23 GG was in force in a version that allowed the Basic Law to apply only to the “Länder united in the federal territory.” After the Unification Treaty and the entry into force of the Two-plus-Four Treaty, Art. 23 GG was amended in 1990. Since then, the spatial scope of the Basic Law has been the territory reunified as of October 3, 1990. In its current wording, Art. 23 GG defines the federal territory as that to which the Basic Law applies directly as the constitutional basis.
Distinction from Historical and International Law Territories
Historical Development
As a result of the outcome of the Second World War and the founding of the Federal Republic of Germany in 1949, the federal territory was initially limited to the West German federal states. With the accession of the five new Länder from the former GDR on October 3, 1990, the federal territory extended to the present-day area of the Federal Republic of Germany.
Border and territorial questions, particularly those concerning the so-called “German Eastern Territories” (formerly parts of East Prussia, Pomerania, Silesia, and East Brandenburg), were settled under international law by the Two-plus-Four Treaty (Treaty on the Final Settlement with respect to Germany, 1990) as well as bilateral treaties with Poland and the Czech Republic.
International Law Assessment
In terms of international law, the federal territory is identical with the territory of the Federal Republic of Germany. It includes the geographically defined mainland territory, German territorial waters (inland waters, territorial sea), German airspace as well as the land and subsoil beneath it. This is legally refined by the United Nations Convention on the Law of the Sea, which governs sovereign rights in the territorial sea and the exclusive economic zone.
Components of the Federal Territory
National Territory and Territorial Scope
The federal territory consists of the following elements:
- The areas of the 16 federal states, including cities, municipalities, and districts
- The inland lakes, rivers, and other inland waters
- The adjoining territorial sea, including islands in the North Sea and Baltic Sea
- The territorial waters up to the 12-nautical-mile zone in accordance with the Law of the Sea Convention
- The German airspace and the subsoil located beneath the national territory
According to § 2 BWG (Federal Election Act), certain rules apply specifically to the federal territory, notably in determining electoral districts.
Special Cases: Exclaves, Enclaves, Joint Areas
In connection with the federal territory, special areas require particular consideration:
- Enclaves/Exclaves: Germany officially has no exclaves or enclaves that exist independently outside the federal territory. However, there are enclaves of other countries on German soil (e.g., Büsingen am Hochrhein as a Swiss enclave).
- Joint Areas: Certain facilities (e.g., embassies) or areas under the NATO Status of Forces Agreement are subject to special international legal status; however, according to Art. 13 NATO Status of Forces Agreement, they remain on German territory, but are characterized by special rights and obligations within the context of international agreements. The sovereignty of the Federal Republic remains formally unaffected.
Federal Territory and Application of Law
Scope of Laws
The majority of German laws explicitly set their territorial scope to the federal territory. If there is no special provision, the entire federal territory is considered the area of application under the so-called territoriality principle.
- Criminal law: German criminal law (§ 3 StGB) applies to all acts committed within the federal territory (ubiquity principle, § 9 StGB).
- Tax law: German tax law distinguishes between unlimited and limited tax liability depending on residence or habitual abode within the federal territory (see § 1 EStG).
- Civil status law: The federal territory is also the main area covered for matters of civil status (§ 1 PStG).
National Territory, Sovereign Territory, and Area of Application
In German legal understanding, federal territory is often equated with national territory. The sovereign territory is the sphere in which German state authority is exercised. This includes the mainland, land and inland borders, islands within German sovereign territory, the 12-nautical-mile zone, and the airspace.
Special Provisions for Cross-Border Matters
While the federal territory is generally identical to the German national territory, there are cross-border rules in international private law and tax law that establish a connection to or from the federal territory. For example, activities abroad by Germans are subject to certain consequences under German law, such as in the determination of double taxation agreements.
Constitutional Aspects
Significance in State Organization Law
The federal territory is decisive for:
- The territorial structure of the federation (relationship between the federation, states, and municipalities)
- The distribution of competences in federalism (e.g., Art. 30 et seq. Basic Law)
- The conduct of elections and referenda (see Federal Election Act, Basic Law)
Term in Connection with Nationality
Art. 116 GG defines that persons born or living in the federal territory who possess German nationality or who have been admitted as refugees or displaced persons of German ethnic origin are regarded as Germans within the meaning of the Basic Law.
Border Regulations and Protection of the Federal Territory
The federal territory is also central to police, security law, and military protection tasks. The protection of territorial integrity falls within the remit of the police, customs, armed forces (in cases of defense), and other authorities.
Federal Territory and European Law
With accession to the European Union, the federal territory is also part of the Union territory under Art. 52 TEU, thereby making certain freedoms, rights, and obligations applicable to persons and enterprises in intra-EU activities.
However, under Union law, particular areas of the federal territory can be excluded from certain regulatory frameworks, e.g. tax or customs rules (free ports, special zones, or overseas territories of other EU states).
Conclusion
Das Federal territory is a key rule-of-law term that defines the spatial sphere in which the sovereign authority of the Federal Republic of Germany exists and is exercised. The precise demarcation and definition affect diverse legal issues and are of crucial significance for constitutional and administrative law, tax law, criminal law, nationality law, and international law. Changes or exceptions are always based on constitutional and international law principles, making the federal territory one of the fundamental pillars of the German legal order.
Frequently Asked Questions
Are there exceptions to the territorial scope of the federal territory under German law?
German law generally stipulates that the state authority of the Federal Republic extends to the federal territory according to Art. 20 and 23 GG. Nevertheless, there are exceptions to the territorial scope. For example, certain German laws or regulations apply due to international agreements, such as the NATO Status of Forces Agreement, on particular premises or to members of foreign armed forces, with differing legal consequences — for instance, limited German sovereignty on military training grounds. In addition, bilateral or multilateral treaties may lead to the temporary or permanent regulatory exclusion of small areas from the area of application (so-called extraterritoriality), for example for embassy premises, without affecting the federal territory as such from a legal perspective. Another exception is the implementation of international treaties when German law exceptionally applies extraterritorially, i.e., outside the federal territory, for example in consular protection or as part of legal assistance.
How is the legal demarcation of the federal territory from foreign national territories made?
The demarcation of the federal territory from foreign national territories is based on principles of international law and border treaties. The federal territory is precisely delineated by internationally recognized borders, which have essentially been established by intergovernmental agreements. Changes to these borders — for example through exchange of territory, redrawing of borders due to political developments, or as the result of court decisions (e.g. international courts) — require the consent of the federal government and often an approval law in accordance with Art. 59 GG. Border conflicts or cooperation are resolved on the basis of bilateral treaties and international arbitration. The sea boundaries of the federal territory essentially correspond to the stipulations of the United Nations Convention on the Law of the Sea, such as the twelve-mile zone, contiguous zones, and Exclusive Economic Zone (EEZ); the determination of these zones is subject to strict international legal procedures and the consent of neighboring states.
What role does the federal territory play in the application of German law?
The federal territory defines the spatial scope of almost all German federal laws. The majority of legal norms, especially in the areas of criminal law, administrative offenses, administrative law, and civil law, claim applicability within this area (§ 3 StGB: territoriality principle). However, acts with extraterritorial effect are also performed from the federal territory, e.g. certain offenses with a foreign connection (principle of universal jurisdiction) or in diplomatic representation. In addition, affiliation with the federal territory is decisive for tax identification, reporting requirements, social insurance law, and access to state benefits. Municipal responsibilities and agency competencies are also always determined by the defined boundaries of the federal territory.
Do foreign nationals have the same rights within the federal territory as German nationals?
Legally, the federal territory does not, in terms of personal rights and duties, distinguish between Germans and foreign nationals with regard to the applicability of the laws: Anyone who is present within the federal territory is generally bound by German legal orders (personality principle, territoriality principle). However, there are restrictions arising from the principle of nationality, particularly regarding political participation (e.g. the right to vote), access to certain professions, or security-relevant state activities which are reserved exclusively for Germans. Immigration law provisions, entry bans, and special protective regulations for minors or refugees also show that distinctions are made within the area of application of the federal territory, without, however, generally exempting foreigners from German law. International law provisions, such as diplomatic immunity, can create special rights in particular for members of embassies or consular posts.
How is the federal territory taken into account in the conduct of federal elections?
The federal territory provides the spatial basis for the conduct of Bundestag elections and other national referenda. The division into constituencies, state lists, and the organizational responsibilities of federal and state election authorities is based on the administrative and legal boundaries of the federal territory. Germans living abroad who reside outside the federal territory must register on the electoral roll according to specific regulations if they still wish and are entitled to vote, subject to deadlines and a link to previous residence in the federal territory. If there are changes to boundaries, measures are taken to ensure the correct allocation of residents from border regions. The Federal Election Act explicitly governs who is entitled to vote based on a residence in the federal territory.
Is the federal territory subject to special international law obligations?
The federal territory as the area of sovereignty of the Federal Republic of Germany is subject to a variety of obligations under international law. These include the observance of human rights, the protection of minorities, the internationally recognized inviolability of borders, as well as obligations under international treaties such as the Geneva Conventions, the NATO Statute, or the European Convention on Human Rights. International organizations and contracting states recognize the federal territory as the legal point of reference for control and arbitration mechanisms. Violations of international obligations on the federal territory may result in legal proceedings before international courts (e.g., ECtHR, ICJ). Stateless persons or refugees are protected in the federal territory by German asylum law and international agreements.
Can parts of the federal territory be ceded to other states?
The cession of parts of the federal territory to other states has occurred only very rarely in German history and is now strictly regulated under constitutional law. According to Art. 29 and Art. 23 of the Basic Law, any territorial change affecting the federal territory is subject to strict requirements and generally requires an international treaty, which domestically needs approval through a federal law pursuant to Art. 59 para. 2 of the Basic Law. In addition, such a cession often requires a corresponding referendum, provided that the constitution or specific implementing laws so mandate. The Basic Law thus offers strong protection of the federal territory against arbitrary or unilateral changes. Well-known exceptions have only arisen as a result of peace treaties or overarching developments in international law, such as after World War II by the Two Plus Four Treaty.
