Die österreichische bundesverfassungsrechtliche Grundordnung

Although the Austrian Constitution is a written one, the essentials of the constitutional order remain, to a large extent, in the dark. This is due to the fact that Art 44 Sec 3 of the Constitution (Bundesverfassungsgesetz, B-VG) states that fundamental changes of the Constitution have to be approved by the people, but lacks to specify what exactly could be a "fundamental change". Nevertheless, Austrian legal scholars had reached a consensus at least in so far that Art 44 Sec 3 B-VG indicates a separation of Austrian constitutional law into two different levels (the lower level of ordinary constitutional provisions on the one hand and the higher fundamental constituational order on the other one), and that the "fundamental constitutional order" consists of a number of "principles" (stating that Austria is a republic, a democracy, a state respecting the rule of law and a federal state). Looked upon whith scrutiny, however this famous fundamental constitutional order seems to create confusion about the concrete consequences of the assumed existence of this legal top level, especially concerning the question how far the author of constitutional provisions of the lower level (ie the 2/3 majority of Parliament) is actually bound by fundament restrictions. The submitted publication aims now to clarify First the exact normative basis of the material content of constitutional order (as which are regarded the first two articles of the B-VG, which state explicit that Austria is a democratic republic whose law derives from the people and that Austria is a federal state which consists of nine "Länder"). Second the content of the constitutional order, with emphasis to the content of the democratic principle (which is understood in the tradition of Rousseau as following rather the ideal of identary democracy than that of classic western representative system). This clarification as such implies - as legal analysis usually does - an interpretation of the relevant provisions. The relevant provisions, however, ranking on the very top of legal hierarchy, the result of their interpretation depends decisively of the theoretical concept used for interpretation of law (which, again, depends on the concept of the very nature of law). In the view of the author of this publication at least the interpretation of positive law has to refer to the concepts of the original law maker - the sovereign, whose will is the only source of law - and not to those of the interpreter or of the public of our days. Follows that f.e. the content of the term "democracy" (or, more exactly, "democratic") has to be defined according to the meaning this term had had in the eyes of the author of the constitution. It is not so easy, however, to identify the "author of the" actual Austrian "constitution": Of course, it is true that, historically, the B-VG had been decided by the Constitutional National Assembly in 1920. But everyone knows the the B-VG had been replaced 1934 by another Austrian constitution, which, in its turn, had to give way in 1938 to the German Government, and that the B-VG had, therefore, to be set again into force in 1945 by the Austrian Provisional Government, during Allied occupation. The author (of the publication) postulates (insofar in accordance with Walter) that not only historically but also legally there is not an uninterrupted tradition from the decision of National Assembly in 1920 up to our days; in the contrary, the actual legal order in Austria stems (and that is new) from the allied occupation, the four Allied Powers having assumed the role of as sovereign in Austria for the last time. Therefore, it ist necesarry to define the impact which this fact nowadays still might have: The author, in this respect, comes to the result, that the B-VG had, to a certain extent, not only from the point of view of international law, but also of national law, been overruled by the provisions of the Treaty of Vienna (Staatsvertrag von Wien 1955), by which the independence and sovereignty of Austria, after German and Allied occupation, was reestablished - but, and that it the curical point, not whithout any conditions and restrictions. It might, however, bet hat in the meanwhile the Treaty of Vienna has become obsolete or at least wholly inapplicable. Several Arguments in this direction are produced, the strongest one consisting in the fact that the partners of the Treaty themselves had welcomed, in the Treaty itself, a future membership of Austria in the UNO and that restrictions of sovereignty as are maintained in the Treaty would be in contradiction with the Statute of the UN. The - possible - escape of the restrictions of the Treaty thus depending on the membership of Austria to the UNO, the question arises wheter, and if so, to which extent the UNO-Statute itself is legally able to overrule the national legal constitutional order. The author tries to answer this question (which is, as such, of course one which has to be posed in the same way also with regard to all other states, and, therefore, answered generally) by analysis not only of the contents of the Statute itself, but of the theoretical implications of the assumption of the existence of any sort of international law as wll as of the actually accepted content of classical law. The author comes to the conclusion that one can - whith more justification than with regard to the EEC - really speak of the existence of legal precedence of the law of the UN. This precedence, however, shows its consequences not so much in the field of democracy itself (there is no direct obligation in the Statute concerning democracy), but in limiting the national range of activities, exactly insofar as the national decision - even if taken in an democratic way - would come into conflict with demands of the law of the UN (especially of binding resolutions of the Security Council). The mentioned precedence of UN-law might, finally, facilitate the understanding of the real nature of the EHRC (ie not only an ordinary international treaty, but, at least in part, a legal instrument reflecting the obligations of the UN-Statute concerning human rights and thus participating in the precedence of this Statute). This would mean that, at least in parts, the rank of the EHRC in Austrian law were not only that one of ordinary constitutional provisions, but one untouchable even for the national - democratic - sovereign.