1. GENERAL

The eminent constitutional law scholar Georg Jellinek (1851–1911) developed a fundamental definition of the state (political theory) through his theory of the three elements. According to this theory, an entity qualifies as a state if three elements are present: (i) state territory, (ii) the people of the state, and (iii) state authority. All these elements must be present cumulatively; if even one of these elements is missing, then according to Georg Jellinek no state.

2. “ON THE INDIVIDUAL ELEMENTS’
2.1. National territory

The national territory is the area within which the state’s legal system applies (see 6. Knowledge Bite on the – territorial – scope of application) and within which the state exercises its corresponding sovereign power (the state’s monopoly on the use of force; see 4. Trivia). The national territory generally comprises (i) the land area, i.e. the earth’s surface within the state’s borders; (ii) the water area, comprising inland waters and the (usually internationally regulated) portions of boundary waters; the (iii) airspace above the relevant land and water areas, and (iv) the subsoil beneath the earth’s surface of the relevant national territory.

A state may be organised as a unitary state: in this case, a single, centrally organised state authority exists across the entire territory of the state („centralised state“, such as France or Italy). Alternatively, however, a state may also be organised federally into several constituent or member states, which are united by a constitution to form a single state (federation) – this is therefore also referred to as a federal state (such as Austria). In this case, both the federal state and the respective constituent or member states exercise state authority (however, unlike in a confederation, for example, the constituent or member states are not independent subjects of international law).

„Austria is a federal state“ (Article 2(1) of the Federal Constitutional Law). This federal state is composed of the autonomous provinces (member states or constituent states) of Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria, Tyrol, Vorarlberg and Vienna (Article 2(2) of the Federal Constitutional Law). “The federal territory (= national territory) comprises the territories of the federal states” (Article 3(1) of the Federal Constitutional Law).

2.2. The people of the state

The population of a state comprises all persons who are within its territory and are therefore subject to its legal system. It makes no difference whether they are citizens, foreign nationals or stateless persons.

Certain rights are, however, linked to citizenship (e.g. Article 26(1) of the Federal Constitutional Act, according to which the National Council is elected by the „Federal People“ – understood to mean all Austrian citizens).

2.3. State authority

State authority is the state’s power of rule over its territory and encompasses both the enactment of legal norms and their enforcement within the framework of the state’s monopoly on the use of force. It is – according to a concept put forward by the French philosopher Montesquieu (1689–1755) – divided into three branches of government, which is why the term ‘separation of powers’ is also used: (i) the legislature, (ii) the executive and (iii) the judiciary.

The executive branch encompasses both the administration and the judiciary.

The separation of powers serves to prevent the concentration of power and to ensure that the different branches of government keep each other in check („checks and balances“).

3. TO PUT IT INTO A NUTSHELL

In summary, it can be said that, from the perspective of political theory, three elements are required for a state to exist: territory, a people and state authority. (Of course, there are also other concepts of the state – such as those of a legal, ethnic or sociological nature.). Hans Kelsen For example, he has defined the state from the perspective of legal positivism as the „sum of its legal norms“; the state is therefore equivalent to the legal system).

The following examples illustrate that the question of when an actually existing entity constitutes a state is not at all easy to answer:

a. In 1967, a private individual declared the naval platform Sealand in the North Sea to the „Principality of Sealand“ – a case covered in episode 302, „Sealand and the Founding of a Micronation“, of „Stories from History“.

b. Another example is Spherical mug in Vienna, a micronation founded in 1984 by the artist Edwin Lipburger was erected on a spherical building 8 metres in diameter in the Wurstelprater and fenced off with barbed wire.

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