Details of the Territorial Structures

13.2.1 Unitary Systems

Unitary systems (see Table 13.1) are characterized by the assumption that the legal order derives from a central source rather than from different autonomous orders like in regionalized or federalized systems.^[896] Unitary states generally exist in two organi­zational forms, either as centralised or decentralized model.

Table 13.3 | | Symmetrical federal systems

Table 13.3 (continued)

Table 13.3 (continued)

Table 13.3 (continued)

Table 13.3 (continued)

Table 13.3 (continued)

Table 13.3 (continued)

^aThe term “symmetrical” refers to the distribution of competences (legislative and/or administra­tive), not to the bicameral representation in an “Upper House” (Senate, Bundesrat, Standerat etc.): This approach differs from the short report of the Venice Commission (1997), p. 10 which also includes the influence of bicameral parliaments in the law-making procedure which is a legitimate argument for additionally evaluating the strength of federal models

^bThe “homogeneity clause” assures compliance with the basic constitutional principles of a Federation, in the case of Argentina e.g. “principles, declarations and guarantees” which must be interpreted in accordance with the federal constitution and lastly by the Supreme Court; the competences are rather limited, cf. Venice Commission (1997)

^cIn more detail see Babeck (2017), pp. 9ss

^dTerritories are composite entities of Australia, but not federated states; three internal territories (Northern Territory and Australian Capital Territory/ACT and Jervis Bay Territory) however have de facto a similar status albeit the constitutional power of the Australian Parliament to repeal the laws, Babeck, ibid

^eSee for more details Weber (2019), p. 189

^fVienna, Lower and Upper Austria, Styria, Tyrol, Carinthia, Salzburg, Vorarlberg and Burgenland ^gA pre-war “federated system” in Yugoslavia prevailed and partially continued after 1992-2006, see Kupper (2018), pp. 414ss

^hThe federation also was pre-existent during the Serbian-Bosnian war

'The federal structure of competency is rather vague and extendible and was apparently misused by the federal Government in certain cases, see Kupper (2018), p. 421

^jSee ibid

^kThe “concurrent” type resembles more a type of basic legislation where general rules of the federation may prevail, otherwise the legislation of the states is primordial; art. 24 § 1, 3 Brazil Const; the repartition of competences in Brazil is an interesting model which can only be evaluated by examining the constitutional practice and jurisprudence

^lThe preamble and the text speak of “Nations, Nationalities and Peoples” which apparently is a concession to the pluri-diversity of the federal state

^mThe repartition of competences and the role of subsidiarity vis a vis “concurrent competences” (which are not expressly enumerated) is not quite clear as federal concurrent competences would prevail

ⁿThe concurrent legislative powers can only be exercised “so long and to the extent that the federation has not exercised its legislative powers by enacting a law” (art. 72 BL); this clause appears to be more transparent than e.g. the respective clauses in Brazil or Ethiopia, but even the increasing unitarisation of Germany caused by the exercise of the concurrent powers of the “Bund”

Table 13.3 (continued)

has led to a constitutional reform where the “Lander” may “deviate” from the federal laws in specific areas (art. 72 par. 3, e.g. environment); the rule of conflict is solved insofar as federal law becomes obsolete after 6 months at the earliest or by the rule of “lex specialis” “Preamble Basic Law

^p1st level territorial entities are only the states, but union territories may exercise legislative powers as well, e.g. Pondicherry, National Capital of Delhi ^qSee e.g. art. 116, par. II, IV (electoral law), IX

^rFrom a first reading it is questionable how competential issues which do not fall within the exclusive domains of the Federation may be solved ^sThis is different to the distribution of competences in India

'Pakistan’s Constitution presents itself as a “Federation” and divides its territories into 4 provinces; it may be doubtful whether it fulfils the essential criteria of a federal state in relation to constitutional and institutional autonomy ^uRule of displacement corresponding art. 30 BL; Weber (2019), p. 190

^vThe Swiss wording is recommendable in its succinctness and precision: art. 3 reads: “The cantons are sovereign except to the extent that their sovereignty is limited by the federal constitution. They exercise all rights that are not vested in the Confederation ” ^wE.g. health, culture roads, police ^xWeber (2019), p. 190

^yThe term “federation” was not used at the pronouncement of US Constitution when it passed from “confederation” to federation. However, the passage from the confederal to the federal type was the underlying premises of the debate of the “Federalists” against the Anti-Federalists, see Federalist Papers

^zAmong which the inter-state clause “To regulate commerce with foreign nations, and among the States...” was the most important federal competence for the extension of federal powers, see e.g. US Supreme Court regulating wages and hours of workers, US v. Darby, 312 U.S. 100 (1941) and many others; but for a recent reverse trend see e.g. NY v. United States, 505 U.S.144 (1992); Jackson and Tushnet (1999), p. 792 ^aaSee also New York v U.S. 505 U.S. 144 (1992)

^abThere are a number of recently “federalised” states which additionally may be listed in the above enumeration but which are difficult to evaluate in constituional practice (Comoros, Iraq, Micronesia, Nepal, South Sudan, Sudan)

initial constitutional design “regions” may evolve to territorial entities which share relevant legislative competences and limited budgetary and fiscal powers.^[900]

Generally speaking, the representation of the regional level on the central state level in bicameral parliaments is less accentuated than in federal systems but regions may also be represented in Second Chambers.^[901] The conferral of competences may be successive and often is asymmetrical. However, also federal states demonstrate an asymmetrical conferral of competences (e.g. Canada; Brazil). The proposed distinc­tive criterion is the assumption that regional systems do not have any constituent power to elaborate and decide upon any “constitution” without prior approval of the central state Parliament (e.g. Spain: ‘Comunidades Autonomas’).

Federal systems share the constituent powers of the federal and “infra-federal” level within the frame of the federal constitution. However, the primacy of federal

Table 13.4 | | Asymmetrical federal systems

Table 13.4 (continued)

^aThe Belgian federal model is exemplary for the process of devolution of central powers since 1962 in 5 major steps to “communautes and regions” in contrast to the “contractual model” of pre-existing states forming a federal union (e.g. Switzerland, Germany, USA). “Asymmetry” mainly results from the distinctive attribution of competences to the two large linguistic groups (Flemish and French) and the smaller German speaking community (art. 127, 130) and in the regional division (art. 3), not in the linguistic sense; thus the Belgian model may be defined as a “linguistic biased” federal system

^bThe absence of concurrent powers is filled by the assumption of subsidiary or parallel competences, see Delperee (2000), p. 596

^cThe complex federal structure is complemented by 4 linguistic regions (art. 4) and provincial subdivisions (art. 5)

^dAlberta, British Columbia, Manitoba, Newfundland, Prince Edward Island and Saskatchewan ^eNorthwest Territories, Nunavut and Yukon

^fThis resembles apparently the “concurrent/shared powers” model but can only be evaluated in practice

^gFor the atypical inhomogeneous example of Russia see for more details Venice Commission (1997), p. 11, underlining the formal equality of state subjects but pointing at differing powers of entities of Autonomous Regions, participation in the federal council and different treaties concluded between the Federation and the states ^hAnnexed by Russia in 2014

law is recognized (“paramountcy”, “supremacy” of the federal constitution).^[902] Territorial entities enjoy budgetary and- to a certain extent—also fiscal—autonomy; administrative competences of their own and frequently delegated administrative competences for the execution of federal laws. ‘Dual’ or ‘monistic’ systems of jurisdictional competences appertain to the central and/or state level.

13.2.2 Remarks Relating to Unitary Systems

The empirical overview on “unitary models”- of which France was a classic example following the French Revolution based on the sovereignty of the “Nation”- illustrates that the often mentioned “unity” or “indivisibility” of the state (or sometimes “nation” in the French revolutionary sense) mainly refers to the legitimation of the sovereign will of the people as an ethnic, linguistic and cultural community.^[903] The processes of decentralisation are apparently rooted in two main elements: one is the sensitivity for subsidiarity, i.e. to share the central state power with lower units of territorial powers which are closer and better well known to the people living in the respective communities; the second element is the recognition of the fact that “nation states” are rarely based on monoethnic populations in the ideal sense but comprise “national” minorities with different linguistic, historical and cultural backgrounds. Decentralisation then takes into consideration the need for “regional identity” (in the wider sense of the word) which primarily may be based on historical and cultural self-attributions of the minorities concerned. However, this does not necessarily mean the entire divisibility of the state territory along cultural or linguistic minorities, but may be complied with the special status of regional autonomy (illustrated above for several European and Asian Countries.)

The model of “deconcentration” in the sense of transfer of certain administrative functions to lower territorial units rather appears to be an exception in the modern state and is foremost applicable to smaller states but also states adhering to the unitary model for long historical traditions (e.g. Japan).

The model of “decentralisation” (for which France is a well-known example) normally flows from a process of devolution of regulatory powers to lower units (like “departments”, “regions” and the like). The transfer of powers—at least from a comparative legal perspective—is not limited to the administrative execution of state competences but is endowed with autonomous regulatory powers and normally supervised by a representative of the central state (like the “prefects”, “governors”; “intendants” and so forth).^[904] The terms of regional or local autonomies in the constitutional texts differ considerably; the self-attribution of “regions” is not self- evident but must carefully be scrutinized along the definitional elements proposed above. The listing of autonomous administrative division in international nomenclatures again is somehow misleading because they are made for statistical purposes;^[905] none of the “decentralised” or “regionalised” entities are completely exempt from state supervision.^[906]

One of the common essential elements for decentralised territorial units is the democratic representation of the people in elected “councils” based on the general suffrage. The mode of elections may differ from country to country but should be based on equal vote for both sexes and members belonging to minorities. In general, autonomous entities enjoy a certain financial autonomy within the state budget;^[907] this can be regulated in more detail by the constitution or by-laws.

13.2.3 Regionalised Systems

Lastly the model of a unitary state (deconcentrated or decentralised) with regional autonomy for special territories having a separate geographic or historical tradition may be an adequate solution for distinct evolution or historical identities between mainlands and archipelagos (e.g. Portugal). It can guarantee a special status of autonomous self-government including legislative competences within the constitu­tional frame which normally are found in regionalized models, (Table 13.2).

13.2.4 Remarks Relating to Regional Systems

Following the above proposed model of regional systems which are characterised not only by devolution processes within untitary states,^[908] but by the devolution of legislative powers to parliaments representing the territorial entities (“regions”) one becomes aware that this type of distribution of powers is relatively rare in constitu­tional reality. As pointed out above the term “region” is universally used in interna­tional studies but often a simple copy of the internal usage of administrative divisions which also may be usual in “unitary decentralised” and even “federated” states.

The statistical distinction of 3-level administrative levels (NUTS: Nomenclature of territorial units for statistics; ISO: International organisation for standardisation) may be helpful for policy researches and practice but do not adequately reflect the constitutional and infra-constitutional context of the vertical distribution of powers. If the list of countries presented in Table 11.21 were correct there are only 4 regional models actually present in Europe^[909] and possibly two other examples (Azerbaijan and Pakistan) where the legal situation is difficult to evaluate in practice.^[910]

The fact that even regional or federal systems may comprise subterritorial divisions on the “third” administrative level sometimes called regions^[911] does not hinder to focus mainly on the second level of self-administration where essential legislative competences are conferred.

The vertical distribution of legislative and administrative competences is depen­dent on the constitution of the central state; it appears rather flexible as new regional autonomous regions may be created (e.g. Italy; Spain). The “regional model” may therefore be seen as a type of a “flexible constitution” in contrast to a more “rigid constitution” where constitutional amendments are rather limited. However, the “regional” constitutional type may provide for itself the establishment of new regions with legislative powers without amending the constitution. The example of the UK is significant in this sense as Parliament in Westminster is still “sovereign” to recall or modify the statutes for the new autonomies in Scotland, Wales and Northern Ireland.

The listed examples on the other hand illustrate clearly that the devolution of competences is limited to the legislative and administrative sphere (possibly also to the judicial sphere) but does not comprise the “constitutional autonomy”. Statutes (which are near to constitutions in federated entities) must be approved by the central parliaments (e.g. Italy, Spain or Belgium) within the framework of the constitution. The constituent power thus is still reserved to the central level even if the initiative may start from the regional level or the autonomy was a pre-constitutional fact (like in Spain).

It is self-evident that the differences to federal systems become more and more blurred and the distribution of competences in regional and federal systems are rather similar or the former may be even wider according to the statute approved by the central Parliament (e.g. Spain or Italy).

13.2.5 Federal Systems

The Tables 13.3 and 13.4 distinguish between symmetrical and asymmetrical federal systems.

In Table 13.4 some asymmetrical federal systems are outlined.

13.2.6 Remarks Relating to Federal Systems

Federalism is the most sophisticated form of Government and of distribution of powers on the vertical level combined with the “traditional” horizontal separation of powers.

It may originate from a contractual model between different states (e.g. United States, Canada, Switzerland, Austria and Germany), be the result of pre-existing colonial structures (Australia, Argentina, Brazil, India,^[912] Malaysia and Nigeria), or the result of a gradual evolutionary process (e.g. Belgium); it may originate from a basic constitutional reform (South Africa; Ethiopia;^[913] Somalia)^[914] or -like the example of Bosnia-Herzegovina- is the outcome of an international treaty securing peace and order for minority-majority populations.^[915]

The contractual model (“from confederation to federation”)^[916] consequently is not the only legitimate model for considering the attribution of constitutional, legisla­tive, administrative and (possibly) judicial powers to lower (independant or depen­dant) territorial entities; textual constitutional reality shows a panoply of federal solutions to be proven in constitutional practice.

Generally speaking, federal models mention the legislative autonomy of the states, provinces or independent territories, more rarely the constitutional autonomy within the constitutional framework of the federation. However, constitutional autonomy flows from the limited or “shared” sovereignty of the state which can (and should) be regulated in more detail in the constitutional text.^[917]

The constitutional wording of the oldest federation (USA) according to the debate between “Federalists” and “Anti-Federalists” is too vague and ambiguous as to serve as a model for constitutional writing and had to be completed and interpreted by almost two centuries of constitutional adjudication of the Supreme Court.

Most federal constitutions contain a ‘homogeneity clause’ in order to best secure “compliance” with the general or directive principles of the federal constitution (democracy; rule of law; elective principles; social state et al.)

The vertical distributions of competences either follows the principle of exclusive enumeration of federal and state competences (e.g. Australia or Canada), or is combined with rules of “concurrent” or “shared” competences (which is not identi­cal); or follows the “rule of subsidiarity” (U.S., Switzerland, Germany or South Africa), or even combines “double exclusive lists” with the subsidiarity principle (e.g. Brazil, Mexico, Venezuela or Nigeria). Generally, subsidiarity plays in favour of the lower level of Government and legislature which is the original, persuasive understanding and should be kept in mind and observed as far as possible in the constitutional wording.

Where there exists an assumption in favour of the federal state this may be explained by historical evolution and colonial tradition (India;^[918] Malaysia) but does not correspond to the idea of conferring powers to the lower territorial entities. Federalism is generally popular throughout Asia whilst some countries have more recently embarked on the debate such as Nepal or Sri Lanka^[919] often as a means to deal with multi-ethnicity. South Asia may be more driven by symmetric federalism, whilst South East Asia with Indonesia and the Philippines^[920] in particular have opted for asymmetric models.^[921]

Older constitutions (like U.S., Canada or Australia^[922]) adhere to general clauses which guarantee the federal intervention (e.g. “peace, good order and government”, Canada) or competential clauses permitting federal intervention in certain areas (U.S.: “inter-state commerce”) or specific competences (e.g. emergency) which must be interpreted by the constitutional/supreme courts.

Rules of solving conflicts between federal and state law are generally entrenched but often leave room for interpretation; thus more precise definitions and conditions - like in the South African constitution - appear to be recommendable.

Administrative autonomy may be organized in several ways, either by separated administrative execution of federal and state law; by federal and state administrations with clear mandatory tasks of state execution in certain administra­tive areas, either as own execution of federal law (“executive federalism”; e.g. Germany, Austria or Switzerland) or /and delegated administrative autonomy in favour of states (e.g. “Bundesauftragsverwaltung”). Clauses of cooperation between the federal and state level may be helpful but cannot not substitute mutual consensus between the different levels which often is mingled in a multi -partite level cooperative federalism and bicameral representation which may not always mirror the party composition on the federal level (e.g. Germany, Spain).

The protection of historical, cultural, ethnical or linguistic minorities may best be solved by organizing “asymmetrical models”, which can better protect the collective identities and individual liberties of the minority groups concerned. Outstanding examples are Canada and Belgium which—following historical traditions—have found a type of “consensual federalism” notwithstanding repeatedly heated debates between the linguistically separated groups and the inherent danger of secessionist movements.^[923]

It is self-evident that a strong composite federal structure must be accompanied by constitutional guarantees for budgetary and financial autonomy for the states, provinces etc.

Most constitutions contain basic principles, guidelines and some indicate more detailed rules for the distribution of financial competences between the federation and the states (esp. Mexico, Brazil; India), but also in Austria or Germany (‘com­posite federalism’—‘Verbundfoderalismus’) or Switzerland (‘tax federalism’)^[924] The Federal model however cannot exhaustively be understood without the immanent principles of “federal loyalty”(Bundestreue), “federal cooperation'¹ and mutual respect and understanding. The more these are entrenched and developed by consti­tutional jurisprudence the more federalism will be effective. It can serve as a model based on the separation of powers, promoting freedom and civil liberties and may even better protect cultural and linguistic minorities in a well-balanced multi-level system.

13.2.7 Local Government

The topic of local government can fill many volumes. Table 13.5 is therefore confined to the local autonomy in the narrow sense of municipalities, communes, cities, municipal districts.

13.2.8 Remarks Relating to Local Government

Local self-government is an essential principle of the “condition humaine”, i.e. to freely decide on local affairs^[925] concerning housing, local environment; urban planning or local education and safety, to elect freely and democratically its own representatives;^[926] to decide on the distribution of local taxes, duties, revenues and the percentage of central or regional taxes and incomes to be shared by the respective territorial units.^[927]

As the Venice Commission has repeatedly underscored, also contained in the ECLSG (European Charter of Local Self-Government), the principle of subsidiarity especially applies (even if not exclusively) for the lower levels of self-government which are closer to the people. It may be helpful to mention the term in the constitutional text as several constitutions do, but much more important—due to the inherent indeterminacy of the term—is to circumscribe the principle in more detail (see e.g. Germany, Poland or South Africa): Many constitutions contain similar clauses as illustrated above. Furthermore, the principle of free representation by the local population must be guaranteed by free, equal and secret voting.^[928] It may also encompass rules for non-discriminatory voting (e.g. South Africa or Namibia).

Elective bodies and mayors must be accountable according to general democratic accountability rules; the supervision by upper levels (region, states, central state and so on) should be limited^[929] Financial resources should be adequate (or “commensurate”) to fulfill the tasks independently; this implies a conferral of

Table 13.5 | | Local Government

Local autonomy: democratic self-government; statutory power in own affairs

Armenia: art. 121; 122 par. 3 (“Communities”)²¹

Azerbaijan (art. 124 par. II; 142, 146; 148)^b

Denmark (§ 82: regulation by statute)

Croatia: art. 128, 129 (“municipalities and towns”; self-organisation); own revenues (proportional to tasks) 131 (own revenues)

Estonia (Sec. XIV: Local Self Government), Municipalities and towns (art. 155)

Finland (art. 121: Communal and regional self-administration)

France: art. 72 par. 1 (“communes”), “principle of free self-administration”; subsidiarity

Germany: art. 28 par. 2 BL: “Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by law”

Greece: art. 102, par. 1, sent 2: “presumption of competence” (subsidiarity); art. 102 par. 4: legal supervision by state on “legality”; link between transfer of competences and transfer of funds expressly guaranteed (art. 102 par. 5)

Italy: art. 114 “Municipalities... Metropolitan cities... are autonomous entities having their own statutes; powers and functions in accordance with the principles laid down in the constitution” Ireland: art. 28 A

Lithuania: (art. 119: Local self-government of municipalities)

Montenegro: (art. 22 principle of self-government), 113ss “municipalities”

Poland: (art. 163-172 very detailed and exemplary regulation) art. 163: “Local government shall perform public tasks not represented by the constitution or statutes to the organs of the other public authorities”

Republic of Srspka, art. 101^c

Slovakia: (artt. 64)

Slovenia: (artt.138)

Switzerland (art. 50: short guarantee of local autonomy of municipalities referring to cantonal constitutions)

Czech Republic: (artt. 99)

Russia: Chap 8, art. 130: “issues of local importance...art. 132 par. 2: conferral of state powers by law; art. 133: judicial protection, compensation by additional expenses

Serbia: art. 188: municipalities, towns and City of Belgrade

Spain: art. 140 sent 1, 2: “municipal autonomy”

Turkey: art. 117 “local administrations”

United Kingdom: no constitutional guarantee; but Local Governments Act: 1888; 2007 revised^d Latin America e.g.

Colombia: detailed regulation of functions, self-government and supervision of municipalities (artt. 311-322)

Chile: detailed regulation of tasks and elective bodies (artt 118-122)

Peru: Local Level: provinces, districts and villages (art. 189 par. 2) with administrative self­government

Mexico: division in municipalities with legal status (art. 115 par. I-II; “local constitutions” (art. 116 par. VIII);

“municipal public administrations”: (art. 115 par. II,a)

Venezuela: “Municipal Public Power” (art. 168 ss): detailed regulations of status; elections et al

Table 13.5 (continued)

Local autonomy: democratic self-government; statutory power in own affairs

“(1) Each Province shall by law, establish a local Government system and devolve political, administrative and financial possibility and authority to the elected representatives of the local governments ”

India: Part IX A: “The Municipalities”

metropolitan areas; municipalities; “panchayat” (art. 243 P, a-f); constitution prescribes municipal representation in council; but maintains seats for Casts and Tribes: art. 243 Q-R

State legislature may endow municipalities with functional powers including taxes, duties etc. (art. 243 W)

Indonesia: no constitutional regulation; only reference to the unitary state with archipelagos South Korea: Chap. VIII: Local Autonomy; art. 117: local welfare and management of properties; art. 140A par. 1: provincial competence to establish Local government

Taiwan: Chap. XI: System of Local Government: provinces and counties (art. 121)^e

^aPositive evaluation of art. 11.2. Draft of clause of local Government by Venice Commission (2001), p. 18

^bSee critical appraisal of Venice Commission (2009), concerning proposed amendment of art. 146 ^cSee critical evaluation by Venice Commission (2008), concerning proposed amendment creating a ‘right to local self-government’ ^dThese Acts imply self-rule of local governments by elected representatives in local councils ^eThe counties may come close to municipalities

certain local taxes on the municipal level and a fair and adequate share in regional or central state taxes:

The right of municipalities and communes to freely associate in order to better fulfill local services should be guaranteed^[930] and is often expressly enshrined in constitutional texts:

The right to legal protection of the self-governing entities must be secured and is often expressly mentioned.^[931] The legal personality of the latter may additionally be guaranteed but is not mandatory; however, for the purpose of filing claims to a Constituional or Supreme Court the legal standing the legal personality may be recommendable.