Overview: Terms and Definitions
Several arguments favour the organization of states into territorially divided entities. Constitutional reality shows a broad range of models of how to confer competences and tasks to lower levels of communities in towns and communes, districts, departments, regions, autonomous communities, “Communautees”, “cantons”, “Lander” and so forth.
Before intending to differentiate more precisely between the different state levels of self-government, it may be useful to remember the basic arguments in favour of autonomy of territorial subentities to better meet the tasks for the citizen in the relevant community.One basic assumption is the subsidiarity principle (originally stemming from the social doctrine of the Catholic Church),[888] i.e. the lower state level should compete with the tasks and duties which are closer to the inhabitant or citizen of the respective community. Subsidiarity—either directly mentioned or tacitly recognized -is a fundamental principle of state organisation. It is an underlying organisational principle in federal, regionalized as well as decentralized systems,[889] but also comprises
An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.
1See Encyclica “Quadragesimo anno” 1931.
2For federal systems and regional systems see Haberle and Kotzur (2016), No. 1125, 1180.
| 1. | Self Government of territorial entities(autonomy) | Autonomy | f |
| 2. | Limitation of state power via territorial distribution of powers | Separation of powers | f |
| 3. | Political participation of citizens on different levels | Democracy promotion | f |
| 4. | Political rights: right to vote; referenda | Human rights oriented function | f |
| 5. | Political stability | Constitutional practice and policy function | f |
Fig.
13.1 Objects and functions of territorial division
local self-government on the municipal level.[890] It is even a basic constitutional principle of supranational, composite organisations like the European Union (art. 5 par. 1TEU).
The theorem apparently satisfies various functions which in its entire combination may considerably promote democracy by enhancing participation on various political levels, strengthening autonomy and self-consciousness of the citizen and fostering the “we-feeling” in smaller communities.[891] Subsidiarity is an element of the separation of powers on the vertical level aiming at limiting and distributing powers on various state levels. In this aspect it may also be understood as an additional element of the rule of law.[892] Whether federal, regionalized or decentralized systems contribute to political stability depends on the flexibility of the constitutional setting, the role of bicameral parliaments representing the territorial subentities and amendment procedures;[893] the history of some recently federalized states (like e.g. Belgium) and regionalized states (e.g. United Kingdom) support this argument. See Fig. 13.1.
13.1.1 Typology
The following typology is a tentative proposal to categorize the various modes of territorial distribution of powers in nation-states (including minorities). The categorization is not based on extra-legal political or socio-economic parameters which may play an important role in the evolution of the constitutional setting as well as
| 1. | Unitary State | 4 |
| 2. | Regional State | 4 |
| 3. | Federal State | 4 |
| 4. | Local Government | 4 |
Fig.
13.2 Stuctural approach to territorial divisions
historical identities. Normative self-attributions in constitutional texts are not sufficient (e.g the “indivisibility” or “unity” of the Nation or Republic) because these are rooted in the legitimating source of the constituent power and only mark the ultimate limits of decentralisation or regionalization.[894]
Territorial distribution of state power may concern the legislative power, the executive power and the judicial power. As the formation of the judiciary has partially been described in Chapt 12.1ss the main focus lies on the distributions of legislative powers between the central state and territorial entities and distribution of executive powers. Local self-government is an additional constitutional element which does not fit entirely in the above distinction because municipalities exercise their autonomy by own rule setting in the local sphere which may amount to a “quasi-legislative” nature (statutes) and to delegated normative and/or executive functions.
For a normative typology the distinction of legislative action on different state levels (“legislative autonomy”) appears to be convincing but is true that a sophisticated typology should include a distribution of powers on the executive and judicial level as well. As such approach would complicate the overall comparison in different tables the author limits the distinctive criterion mainly to the legislative aspect which flows from the sovereign will of the people and corresponds largely to the objects and functions described above. On the other hand the author mainly accentuates the divisions of “first-level territorial division”, not on secondary or third level (except for local government).[895]
13.1.2 Structural Approach Relating to Territorial Structures
Starting from this premises the author distinguishes between three types of territorial distribution: unitary state, regionalized state and federalized state.
This distinction is completed by the autonomy of the local level appearing in all types of territorial distribution (Fig. 13.2, Tables 13.1, 13.2, 13.3 and 13.4).Table 13.1 | Unitary systems
| Unitary deconcentrated | |
| Europe | |
| Albania: art. 110 par. 2: “the region is the unit in which regional policies are constructed and implemented...” | Albania: artt. 108,110 par. 2; par. 4; 111 par. 1; 112; 114; regulatory power (art. 10, par. 4); legal entities (art. 111, par. 1); supervision by Prefect (art. 114) |
| Armenia: art. 122 p.3: “Autonomous bodies may be authorized to issue sub-legislative normative acts” | Armenia: “marzes and communities” as admin. territorial units (art. 121); “autonomous bodies” also for public tasks (art. 122) |
| Croatia | Croatia: “counties” as units of regional self Government (art. 129par. 2; 129 a; b; 130) |
| France: art. 1: “La France est une Republique indivisible...Son organisation est decentralise”a | France: principe de libre administration des collectivitesb; subsidiarite: municipalties, departements; regions (art. 72par. 3: “pouvoir reglementaire”); art. 72 par. 6: supervision by Prefects of departments (100) and regions (13) |
| Greece: art. 101 (“principle of deconcentration”)c with special autonomous status of Mount Athosd | Greece: 13 regions as administrative units (“peripheriae”) |
| Netherlands: Provinces | Netherlands: art. 132; organisation regulated by lawe |
| Latvia: (art. 1 par. 3: 4 regions); 110 districts | |
| Poland: art. 15 par. 1: “The territorial system shall ensure the decentralisation of public power” | Poland: regulated 1999 by statute law on “voivods” (16)f; districts (“powiats”) |
| Romania: art. 20,-122 counties and cities; special autonomy may be granted to minority regions by “organic law” | |
| Slovakia: (art. 64); 8 “higher self-governing districts” with representative organs (“zupan”); 7 districts (“okres”) | |
| Czech Republic: (art. 99: Regions as higher territorial selfgoverning units | |
| Latin America, e.g. Colombia: Departments exercise administrative function and have regulatory power (artt. 298 par. 2; 300, No2); details regulated by “Organic law on territorial organisation” | 32 “departamentos” |
| Chile: chap. XIV: “regions; provinces communes”; regions are autonomous | 16 “regions”; 54 “provincias” |
Table 13.1 (continued)
| Unitary deconcentrated | |
| administrative units “with normative, decision making and inspective character” (art. 113 par. 1); supervision by “intendant”; details regulated by organic law. | |
| Honduras: Chap. IX decentralized Institutions”; art. 262: “functional and administrative autonomy; regulatory power | 18 departments |
| Peru art. 188 p.1: “Decentralization is a form of democratic organization and a mandatory, continued policy of the state...”g | Peru: regional level:26 former departments, since 2002 25 regions and capital of Lima (art. 189 par. 1) |
| Asia e.g. Taiwan; Provinces: art. 113 (legislative powers of provinces) | |
| Africa e.g. | |
| Algeria art. 16,17: decentralized units | 48 provinces (“wilayas”) |
| Benin: art. 151ss: self-administration of "territorial units” | Benin: 12 “departements” |
| Cameroon: art. 55: Regions with “administrative and financial autonomy” | Art. 61: 10 regions |
| Democratic Republic of Congo: art. 208ss; art. 211:“decentralised local collectivities” | Congo: 12 “departements” |
| Ghana: art. 4, par. 1: regions and districts; art. 240:“... which shall be, as far as practible decentralized” | Ghana: 10, now 16 regions (Referendum 2017) |
| Gabon: art. 112: “local collectivities”; defined by law | Gabon: 9 provinces; 50 departements |
| Mali: art. 97, 98: local self administration | Mali: 10 regions |
| Senegal: no constitutional regulation | Senegal: collectivites locales: 14 regions and communes |
| Togo: art. 141 “collectivites locales” (regions; prefectures communes) par. 1: “... sur la base de principe de decentralisation dans le respect de l'unite nationale” | Togo: 5 regions |
| Unitary decentralised with partial regional autonomy | Denmark: Farber Islands (1948), Greenland (1979) |
| Finland: Aland since 1921 with directly elected Parliament | |
| Portugal: Archipelagos Azores and Madeira as autonomous regions: |
Table 13.1 (continued)
| Unitary deconcentrated | |
| (art. 5;6; 225 ss); own regulatory power; supervised by central state representative | |
| Georgia: art74 par. 2, “self-governing units”; autonomous Republics Abhkazia and Adjarah | |
| Moldova. artt.109, 111,112: “autonomous territorial unit of Gagauzia”; Transnistriai (independence declared 1991) | |
| Ukraine: art. 32: “based on a combination of centralisation and decentralisation” | bgcolor=white>Ukraine: art. 132|
| Serbia: art. 172 ss: provinces | Serbia: “autonomous province sec. of Voivodina and Kosovo (art. 182 par. 2)k; an “autonomous province” has a limited const autonomy, own legislative competences and own parliament |
aLconst No2003-276, 28 March 2003
bThe French Constitutional Council has attributed the principle constitutional rank (“valeur constitutionnelle”, see Dec79-104 of 23/3/1979) comprising the general election of the advisory organs
cThe English term deconcentration (“apokentrotiko systema”) is not precise, see Kupper (2018), p. 403
dInsofar Greece may also be listed under the category of “decentralised states with partial autonomy”, see also Kupper (2018), p. 404
e12 povinces since Grondwet 1814 as subconstitutional entities, Weber (2019), p. 180
fThe Voivod has a dualistic character as self-governing entity and being part of the central state administration and thus resembles the French regions; Weber (2019), p. 180
gThe article illustrates well the devolution process of decentralisation in a unitary state
hThe territorial status is partially disputed since the Russian-Georgian war 1998 and 2008; the Georgian Const of 2018 only mentions indirectly the autonomous republics (e.g. art. 2 par. 3) iThe Republic of Transnistria declared its independence 1991 by de facto regime of insurgents backed by Russia, but was not recognized internationally; since 1997 exists a modus vivendi between Moldavia and Transnistria; proposal for a federalisation by OSCE failed in 2002, see Kupper (2018), p. 407
JThe autonomous republic of Crimea is annexed by Russia since 2014 and is not recognized by the international community: see UN Res 68/262; Res of HRC 2016, for details of the referendum; chapt 17 in Writing Constitutions or also Peters (2014), p. 1 ss
k“Autonomous province of Kosovo” in Serbia exists only “on paper”, since the unilateral declaration of independence of Kosovo on 17/2/2008 and subsequent far reaching recognition of Kosovo’s independence by the international community; for the complex questions of the right of selfdetermination of the Serbian Kosovars see Kupper (2018), pp. 183ss.; Falk (2011), pp. 50ss.; Hilpold (2011), Das Kosovo-Gutachten des IGH vom 22. Juli 2010
Table 13.2 | Regionalised systems
| Countries | Legislative autonomy | Symmetrical legislative autonomy | Asymmetrical legislative autonomy |
| Azerbaijan: | Art. 134 | (Art. 134: Nakhichevan Rep) | |
| Italy: art 5 (principle of “unity and indivisibility” of Republic) art 117 par. 4 (principle of subsidiarity), organisation of regions with special status and ordinary status is based on direct general elections | Art. 14: Municipalities, cities with special status and provinces are “autonomous entities”; legislative “concurrent” powers of provinces (art. 117), administrative powers (art. 18); art. 117 par. 6: “regulatory powers in all other subject matters” (pr. of subsidiarity) art. 119: “revenue and expenditure autonomy” | Art. 116: 5 autonomous regions (“regioni a statuto speciale”) 1948: Friuli- Venezia; Sardinia; Sicily, Trentino-Alto- Adige; Valle d'Aosta (1963); autonomous provinces of Bolzano and Trento in Trentino- Alto Adige (art. 116 par. 2)b | |
| Spain: art 2 (principle of unity and indivisibility of state and recognition of the right to the autonomy of nationalities and regionsc) | 17 Autonomous Communities (“Communidades Autonomas”: CCAA): art. 143,147: own “statutes” and autonomous institutionsd; demarcation of legislative and administrative competences based on “exclusive” or “shared” competences between the central state and CCAAe | “asymmetrical autonomy”: (a) historically: the CCAA of Catalonia; Basque Country and Galicia gained earlier transitional autonomy (art. 151) (b) statutes are different as to competences approved by the central parliament | |
| United Kingdom: UK is a “asymmetrical regionalized country” based on the devolution “statutes” since 1998 for Scotland, Wales, Northern Irelandf | Devolution of legislative competences: Scotland Act (2012; 2016) except “matters reserved” to Westminster; Government of Wales Act (1998; 2006; 2014;m2017) now similar to the Scottish model; Northern Ireland Act 1998 (transferred | Devolution process has led to a significant regionalisation but differences between the respective Acts remain; especially compared with the largest “region” of Englandg |
Table 13.2 (continued)
| Countries | Legislative autonomy | Symmetrical legislative autonomy | Asymmetrical legislative autonomy |
| matters but Westminster may still legislate) |
aRegions with ordinary status (“Regioni a statuto ordinario”) have a derivative legislative and administrative power conferred by the central state; Weber (2019), p. 185
bAccording to art. 116 par. 3 Italian Const further provinces may gain the special status of autonomy in special legislative matters (in conjunction with art. 117 par. 2, 3)
c“La Constitution se fundamenta y garantiza en la indissoluble unidad de la nation espanola, patria comun e indivisible de todos los espanoles y reconoce y garantiza el derecho a la autonomia de las nacionalidades y regiones que la integran y la solidariedad entre todas ellas” dHowever, the CCAA are not endowed with original constituent power, Weber (2019), p. 183 eThe demarcation between central and autonomous competences (art. 148 par. 1 and art. 149 par. 1) remained one of the most controversial issues, Weber (2019), p. 183; Segado (1992), pp. 924ss fThe general assumption is an “executive” and “legislative devolution” without giving up the legislative competence of Parliament, see Kilbrandon Report (1973), par. 543 gWeber (2019), p. 182
13.2