Abstract
Federalism is one form of sub-state organization, but federal forms of organization are often dealt with in such a broad fashion that clear cases of non-federal entities are included in federalism. However, a distinction between territorial autonomy and federal forms of organization can be made by using institutional and material criteria and by considering the relevance of supremacy clauses and preemption doctrines of different sorts in relation to singular sub-state entities. By contrasting characteristics of classical federations with characteristics of territorial autonomy, it is possible to develop a definition of territorial autonomy that can be used as a yardstick for determining which of the six cases involved are truly autonomous and which are not.
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Notes
- 1.
Gamper (2004), p. 69, fn. 16.
- 2.
Gamper (2004), p. 57.
- 3.
Henig (2006), p. 4 f., describes the essence of federalism in the following way: “[T]he vital characteristic of federalism is that governmental institutions at each level ‘own’ certain powers and competences, and they can act independently in exercising them. If we take a simplified model of a two level structure with ‘A’ at the highest level and ‘B’, ‘C’ and ‘D’ at the lower level, then the governmental institutions of ‘B’ have the power to take certain decisions without reference to ‘A’ and without necessarily acting in the same manner as ‘C’ or ‘D’. Equally, whilst ‘B’, ‘C’ and ‘D’ may be represented at the higher level, ‘A’ can take decisions within its area of competence without any formal reference to the lower tier.” However, it seems that Henig is mainly describing the material dimensions of federalism, without paying sufficient attention to the institutional dimensions. However, it has been pointed out that there may also be a distinction between ‘federal’ and ‘federalism’, where ‘federal’ is a distinct form of institutional organization, whereas ‘federalism’ denotes a political principle of some kind that advocates the creation of federal governance. See, e.g., Burgess and Gagnon (1993).
- 4.
Domínguez García (2009), p. 411.
- 5.
Bogdanor (1999), p. 202, seems to think that the creation of exclusive law-making powers in a sub-state legislature denotes federalism, which also indicates a certain confusion concerning the forms of sub-state governance.
- 6.
Navaratna-Bandara (1995), p. 21 f.
- 7.
E.g., Kymlicka (2007), pp. 70–71, 144. However, Kymlicka is also clearly interested in the potential of federations to guarantee minority rights.
- 8.
Ghai (1999), pp. 182–184.
- 9.
Lapidoth (1997), p. 49.
- 10.
Benedikter (2007), p. 22.
- 11.
For instance, it seems that in Bogdanor (1997), pp. 65–87, Bogdanor is using federations as examples, not territorial autonomies, although much of what he is proposing is relevant also for territorial autonomies.
- 12.
Ruiz Vieytez (2004), p. 135.
- 13.
Ghai (2000b), p. 8.
- 14.
Ghai (2000b), p. 8 f.
- 15.
- 16.
See Elazar (1987), p. 152.
- 17.
Bartole (1998), pp. 184, 186.
- 18.
As explained in Amoretti (2011), pp. 66–69, the constitutional reforms in Italy in 1999 and 2001 reversed the distribution of powers between the central government and the regions so that they now are based on enumeration for the national level and residual powers for the regional level, but the importance of the state-regions conference has remained limited and cannot be regarded a federal chamber proper. The principle of subsidiarity established in the Italian Constitution distributes powers from the centre to the lowest possible level (even to the municipality), while each of the regions has the possibility to request more powers from the national and thus enhance the asymmetrical nature of the Italian state.
- 19.
- 20.
This, however, is not quite accepted by Domínquez García, who thinks that identifying particular characteristics of a federal state may cause the category of federations becoming futile, and proposes instead the over-arching concepts of composite or compound states to cover different sub-state existences, dividing the compound states into integral compound states, where the entire territory is divided into politically autonomous sub-states (Germany, Austria, Belgium, Spain, Italy) and into partially compound states (Portugal, Finland, the UK, etc.). See Domínguez García (2009), p. 413 f.
- 21.
Olivetti (2009), p. 777.
- 22.
Olivetti (2009), p. 778.
- 23.
Wheare (1964), pp. 1, 15, 19 f. One particular method of flexibility accounted for on p. 232 ff. is the “temporary delegation of powers by regional to general government, or vice versa”. However, Wheare was criticized by Elazar for regarding federalism as nothing more than a “technique for political integration – occasionally useful, transitory in nature, and ultimately to evolve into a more simple form of decentralization within a strong unitary government”. See, e.g., Elazar (1987), p. 149. In the same vein, autonomy is often referred to as a technique of the opposite direction, that of secession. However, both federations (which is the point of Elazar) and autonomy arrangements have proven to be sturdier than the predictions of some observers.
- 24.
Wheare (1964), p. 20. On p. 223, he considers the importance of practice, conventions and custom as complementary to the formal constitution of the federation. Even more so, Friedrich (1968), pp. 7, 173, is not interested in defining federalism from a legal point of view that illustrates a static design regulated by firm and unalterable rules, but in dynamic terms that illustrate a process. According to Friedrich, “the development (historical) dimension of federal relationships has become a primary focal point, as contrasted with the distribution and fixation of jurisdictions (the legal aspect),” while our inquiry is more focused on the legal aspect, without leaving aside the dynamic side. Instead of what the structure of a federal relationship has Friedrich inquires into what function a federal relationship has, although he does not think that the legal dimension is unimportant.
- 25.
Wheare (1964), p. 2.
- 26.
According to Wheare (1964), p. 78, the simplest form of division of powers “is obtained by having one list only and that actually exclusive”. In the context, however, it seems clear that when talking about the exclusive list of competencies, he means the powers of the federation, while the powers of the sub-state level would be residual, something that he confirms on p. 80 that the “aim must be to get an exclusive list for the general government which contains as many as possible of the important subjects of general concern”, leaving the residual competences to the sub-state level. In the same context, he also considers the possibility that instead, the powers of the sub-state entities are enumerated while the residual powers would be vested in the federal government, but concludes that “objections of a different kind may be imagined”. Putting forward the example of Canada, which he has previously qualified as quasi-federal, he writes that the example suggests “that this need not mean that provincial powers will be by any means negligible or progressively whittled down”. On p. 96, he gives the powers of customs and excise as examples of exclusive federal competences, while revenue from property, commercial undertakings and monopolies, grants, loans and taxations could be placed among the concurring competences. However, on p. 126, he resigns before the difficulty of indicating at which level of governance different competences of an economic nature should be placed.
- 27.
Wheare (1964), pp. 10, 75 f. Wheare concludes that a mere reference to exclusive competences is misleading, because in practice, concurring competences of wider or narrower sort exist between the federal level and the state level. As a consequence, the existence of concurring competences necessitate, according to Wheare, provisions concerning which authority it is that shall prevail in situations of conflict. Normally, the rule should be that when, inside the concurring competences, there is a conflict, the federal norm prevails and the state law gives way.
- 28.
Wheare (1964), pp. 96, 169 f. Wheare is aware of the problems posed by treaty powers of the federation to the states, because ultimately, they may extend the legislative powers of the federal government “to any subject upon which it can make a treaty”. This is particularly so in regard of subject-matter which domestically is placed among the exclusive competences of the constituent states: “[D]oes not this mean that the general government is, through its use of the treaty power, entering the sphere of the regional legislatures? And does not this reduce the regional field considerably? And unexpectedly?”
- 29.
Wheare (1964), p. 59.
- 30.
Wheare (1964), p. 68. However, a supreme court of the federation should have the final say.
- 31.
Wheare (1964), pp. 21, 24. He therefore thought that, e.g., the 1891 Constitution of Brazil and the 1936 Constitution of the Soviet Union were not really federal. Wheare operated with the notion of the quasi-federal constitution, classifying the Weimar Republic, Federal Republic of Germany and the Soviet Union as quasi-federal. See Wheare (1964), p. 25 f.
- 32.
Wheare (1964), p. 20 f.
- 33.
Wheare (1964), p. 33. Although the two levels of government are supposed to be independent, they also have to stay in a relationship of co-ordination with each other. That relationship can take on several different forms, such as inter-governmental conferences, meetings of governors, etc., as pointed out in Wheare (1964), pp. 226–232.
- 34.
Wheare (1964), p. 36.
- 35.
Wheare (1964), p. 53 f.
- 36.
- 37.
Wheare (1964), p. 88.
- 38.
Wheare (1964), p. 180 f.
- 39.
- 40.
- 41.
Lijphart (1985), p. 11. For a comment from the point of view of autonomy concerning the idea of consociationalism proposed by Lijphart, see Lapidoth (1997), p. 173 f.
- 42.
Elazar (1987), p. 5 f. See also Elazar (1987), p. 12, where he expresses the simplest possible definition of federalism: “self-rule plus shared rule”, and thinks that federalism thus defined “involves some kind of contractual linkage of a presumably permanent character that (1) provides for power sharing, (2) cuts around the issue of sovereignty, and (3) supplements but does not seek to replace or diminish prior organic ties where they exist”.
- 43.
Elazar (1987), p. 7. See also Elazar (1987), p. 21: “If a political system is established by compact and has at least two “arenas”, “planes”, “spheres”, “tiers” or “levels” of government, each endowed with independent legitimacy and a constitutionally guaranteed place in the overall system and possessing its own set of institutions, powers and responsibilities, it is deemed to be federal.”
- 44.
See Elazar (1987), p. 184. In this context, Elazar thinks that the German federal chamber is most effective, while the US Senate is one of the least effective federal chambers because its members are elected ad personum and are not required to represent their states per se. He also adds that the decorative Canadian Senate does not even pretend to perform a serious federalist function.
- 45.
See, e.g., Elazar (1987), pp. 157, 166, 182, 185. See also Elazar (1987), p. 33, where he maintains that federalism has to do “with the need of peoples and polities to unite for common purposes yet remain separate to preserve their respective integrities”, that federal principles grow out of the idea that free people can freely enter into lasting yet limited political associations to achieve common ends and protect certain rights while preserving their respective integrities” and that the federal idea itself rests on the principle that political and social institutions and relationships are best established through covenants, compacts, or other contractual arrangements, rather than, or in addition to, simply growing organically”. Such voluntary association is often not present in autonomy arrangements.
- 46.
Elazar (1987), pp. 7, 55, 234–235. He also mentions associated state arrangements and common markets in the context.
- 47.
Elazar (1987), p. 253.
- 48.
See Nordquist (1998), pp. 59–77, about the low likelihood of autonomy arrangements to survive in authoritarian countries.
- 49.
Concerning Spain, Elazar (1987), p. 165, feels that the Spanish system denies the autonomous territories a major role as territories in the national government.
- 50.
Concerning Italy, Elazar (1987), p. 165, concludes that its constitution “comes closest to that of Spain with its system of regionalization, in which the regions are given certain autonomous powers of home rule without being involved qua regions in the general government”.
- 51.
- 52.
- 53.
- 54.
Elazar (1987), p. 237: “regionalism as a protofederal arrangement designed to build publics in a country that has suffered from political alienation on the part of individuals and families.”
- 55.
Elazar (1987), p. 238: “autonomy for national minorities and Spanish unity.”
- 56.
Elazar (1987), p. 238: “devolution of administrative powers and national rights to constituent countries inhabited by separate peoples.”
- 57.
Elazar (1994).
- 58.
Elazar (1994), p. xix.
- 59.
Elazar (1994), p. 89.
- 60.
Elazar (1994), pp. 255–257.
- 61.
This is somewhat surprising against the background that the etymological origins of the term ‘autonomy’ can be traced back to the Greek terms ‘auto’, meaning ‘self’, and ‘nomos’, meaning ‘law’ or ‘rule’. See Lapidoth (1997), p. 29, and Eide (1998), p. 251. Hence the autonomies in France, Georgia and Ukraine would not necessarily qualify in the core group of autonomies, that is, such entities which have law-making powers proper.
- 62.
Inter alia, Tibet and Xinjiang in China, Faroe Islands and Greenland in Denmark, Åland Islands in Finland, Jammu and Kashmir in India, Azores and Madeira in Portugal, Basque Country, Catalonia and Galicia in Spain, Zanzibar in Tanzania and Puerto Rico in the United States.
- 63.
Watts (2008), p. xv.
- 64.
Elazar (1987), pp. 5, 12.
- 65.
Watts (2008), pp. 1, 8. According to Watts, this definition results in a spectrum of more specific non-unitary forms of government, ranging from “quasi-federations” and “federations” to “confederacies” and beyond.
- 66.
Watts (2008), p. 8.
- 67.
Watts (2008), p. 9.
- 68.
Watts (2008), p. 83.
- 69.
Watts (2008), p. 9. Watts does not, however, claim that all these defining characteristics necessarily have to be present in a case for it to be qualified as a federation, but concludes, e.g., on pp. 18–21, that federations may be differently organized and at times even asymmetrical so as to result in a relatively great variation of forms inside the category of federal organization. As Watts points out on p. 18, there is no single “ideal” or “pure” form of federation.
- 70.
As concluded by Watts (2008), pp. 84 f. and 92 f., in a manner which is relevant also for autonomy arrangements in their relationship with the national level, it is important to “find a balance between the independence and interdependence of governments within a federation”. As concerns the relationship between legislative and executive powers in federations, it seems that often, legislative competence imply executive powers in the area of those competences, but in some federations, the federal level also uses the state level for executive purposes within the sphere of federal legislative competence. See Watts (2008), p. 86 f.
- 71.
See also Watts (2008), pp. 147, 150, who concludes that the “principle of bicameralism has been incorporated into the federal legislatures of most federations”, the only exceptions among 25 federations currently in existence being the United Arab Emirates, Venezuela, Comoros, Micronesia and St. Kitts and Nevis. At least as concerns last of the exceptions, the case could be made that Nevis actually is an autonomous territory in the state (see below, Sect. 3.5.3). As concerns Spain, the chamber of the legislature where there is regional representation is partly elected, partly appointed. The 208 elected representatives are not elected from the autonomous communities, but from provinces, which is an administrative layer below the autonomous territories. However, 51 representatives are appointed by the parliaments of the 17 autonomous communities. The representation of sub-state units in federations is, according to Watts (2008), p. 152, not even in half of the cases based on an equality of state representation at the federal level, but may instead favor smaller sub-state entities or significant minorities, although sub-state units with larger populations tend to get more seats.
- 72.
See also Watts (2008), pp. 157–170.
- 73.
Watts (2008), p. 19.
- 74.
However, as pointed out in Watts (2008), p. 76, a number of federations contain constituent units marked by different linguistic, ethnic or religious majorities and refers in this respect to, inter alia, Belgium, Canada, Ethiopia, India, Nigeria, Russia and Switzerland as evidence for the opening offered by federalism to “accommodate ethnic, linguistic and regional groups by establishing regional units within which they may form a majority with the power to protect and promote their distinctiveness through a measure of self-government”.
- 75.
Although most federations are symmetrical, some asymmetrical federations also exist, such as Canada, the Russian Federation. See Watts (2008), pp. 32 f.
- 76.
This is supported by the data concerning the constituent units of federations in Watts (2008), pp. 71–76. See also Davis (1978), p. 121 f., who says that in a federation, the business of state is “divided between two popularly elected governments, a national government embracing the whole territory of the nation and a “regional” government for each of the lesser territories”, which means that the lesser territories are multiple and cover the entire territory of the country.
- 77.
For examples, see Watts (2008), pp. 31 (Switzerland), 33 (Australia), 34 (Austria), 38 (Mexico), 39 (Malaysia), 40 (Pakistan), 43 (Brazil), 44 (Belgium), 47 (Argentina), 50 (Nigeria), 59 (Bosnia and Herzegovina), 61 (the Democratic Republic of Congo). Canada, India and Belau are apparently exceptions that confirm the rule, because the major residual powers are vested with the federal government in a division of powers which is based on enumeration both concerning the competences of the federation and the constituent states (or provinces, as the sub-state entities are called in Canada). See Watts (2008), pp. 32, 37. In addition, some federal states (such as the Russian Federation, Comoros, St. Kitts and Nevis, Micronesia, South Africa, Ethiopia and Venezuela) have such distributions of competences which are difficult to place in any of the categories.
- 78.
According to Watts (2008), p. 43, this distribution of competencies is the case in Spain.
- 79.
Watts (2008), p. 145.
- 80.
Watts (2008), p. 145. For independent party formations and organizations at sub-state level, Canada and Belgium are presented as examples, while those in Australia, Germany and India show somewhat stronger ties to the party organizations at the federal level.
- 81.
Watts (2008), p. 151.
- 82.
Gamper (2004), p. 57.
- 83.
Gamper (2004), p. 57. Because the Federal Assembly has never vetoed a federal bill because of its centralizing tendency at the expense of the Länder and because of some other characteristics, Gamper feels that the Austrian form of federalism is one of the most centralized of its kind.
- 84.
Gamper (2004), p. 58.
- 85.
Gamper (2004), p. 58.
- 86.
Gamper (2004), p. 58.
- 87.
Gamper (2004), p. 60.
- 88.
Gamper (2004), p. 60.
- 89.
See Gamper (2004), p. 58 f.
- 90.
Gamper (2004), p. 59.
- 91.
Gamper (2004), p. 62.
- 92.
Gamper (2004), p. 59.
- 93.
Weiss (2004), p. 76.
- 94.
Tarr et al. (2004), p. 90.
- 95.
- 96.
Burgess (1993), p. 5.
- 97.
- 98.
Galligan (2007), p. 293.
- 99.
Anderson (2008), p. 4.
- 100.
Anderson (2008), p. 5.
- 101.
Anderson (2008), p. 3 f.
- 102.
Anderson (2008), p. 65: “The party regime is critical. In federations where the political parties are integrated between the two orders of government, the national party leaders may have great influence over candidates and leaders in the constituent units; alternatively, regional barons, with their power bases in the constituent units, may be king makers for the party at the centre.”
- 103.
Anderson (2008), p. 45, makes the point that the “central legislatures of federations usually have some balancing of representation by population with representation by constituent units. This federal dimension of representation is usually embodied in upper houses, but it can be present in lower houses as well”. Anderson (2008), p. 46, also puts forward the view that the “prevalence of such upper houses in federations is associated with the idea that both the population and the constituent units are part of what makes a federation, and both dimensions need to be reflected in the central institutions”. Hence the institutional dimension of sub-state representation may be understood as central to federations.
- 104.
Anderson (2008), p. 21.
- 105.
According to Anderson (2008), p. 21, in this model, “each order of government normally delivers programs in its area of responsibility, using its civil service and departments; the federal government’s departments are thus present throughout the country”.
- 106.
Anderson (2008), p. 21.
- 107.
Anderson (2008), p. 21.
- 108.
Anderson (2008), p. 26.
- 109.
Hannum (1996), p. 4.
- 110.
Hannum (1996), p. 333.
- 111.
Hannum (1996), p. 458.
- 112.
Hannum (1996), p. 467 f.
- 113.
Hannum (1996), p. 474.
- 114.
Hannum (1996), p. 41.
- 115.
Lapidoth (1997), p. 3.
- 116.
Lapidoth (1997), pp. 5, 10.
- 117.
Lapidoth (1997), p. 23. She concludes that “[m]ore and more authors seem to consider autonomy as a valid means of self-determination in a world where there is a trend toward federalization and regionalization”.
- 118.
Lapidoth (1997), pp. 29–33. The opinions of the authorities on the matter and the categories are not completely exclusive in relation to each other, and therefore the same person may appear in two categories.
- 119.
Lapidoth (1997), p. 33.
- 120.
Lapidoth (1997), pp. 33–35.
- 121.
Lapidoth (1997), p. 49. She, however, excludes the term ‘devolution’ from the analysis, because it denotes the mere act of transferring powers and does not indicate the content or nature of those powers.
- 122.
Lapidoth (1997), p. 50.
- 123.
See Lapidoth (1997), pp. 50–51.
- 124.
Lapidoth (1997), p. 51.
- 125.
Lapidoth (1997), pp. 51–52.
- 126.
Lapidoth (1997), pp. 52–53.
- 127.
Lapidoth (1997), pp. 54–55. The concept of self-administration that is considered by Lapidoth (1997), p. 55–57, on the basis of a proposal in 1991 to the UN General Assembly by the Principality of Liechtenstein, seems to be organized in progressive levels from decentralization to territorial autonomy.
- 128.
Benedikter (2007), p. 2.
- 129.
Benedikter (2007), p. 23.
- 130.
Benedikter (2007), pp. 12, 14, 18.
- 131.
- 132.
Benedikter (2007), pp. 14–15. Apparently, the example of Corsica in France slides in this direction: “The mere transfer of administrative powers to regional bodies reduces the ‘self-government agencies’ to a sort of peripheral branch of the state administration, subordinated to carry out decisions taken at the centre”. See Benedikter (2007), p. 27.
- 133.
Benedikter (2007), p. 15.
- 134.
Benedikter (2007), p. 15.
- 135.
Benedikter (2007), p. 25.
- 136.
Benedikter (2007), p. 13.
- 137.
- 138.
Benedikter (2007), p. 24.
- 139.
Benedikter (2007), p. 24.
- 140.
Benedikter (2007), p. 27.
- 141.
Benedikter (2007), p. 55.
- 142.
Benedikter (2007), p. 42.
- 143.
Benedikter (2007), p. 55.
- 144.
Benedikter (2007), p. 55.
- 145.
See Bartole (1998), p. 176. According to Bartole, “the separation of the competences between regional and central authorities does not allow the use of the concept of the hierarchy of the sources of law with regard to the relations between national and regional statutes”.
- 146.
Bartole (1998), p. 173.
- 147.
- 148.
Bartole (1998), p. 174.
- 149.
Bartole (1998), p. 185 f.
- 150.
Bartole (1998), pp. 187–193. There is a German-speaking group in the province of Bolzano/Bozen, which is a part of the region of Trentino-Alto Adige, a French-speaking group in Valle d’Aosta, a Slovenian-speaking group in Friuli-Venezia Giulia and a small Ladinian group in the provinces of Bolzano and Trento in the region of Trentino-Alto Adige. The regional form of organization (and the partition of the region of Trentino-Alto Adige in two autonomous provinces with law-making powers, Trento and Bolzano/Bozen) makes it possible to cater for the needs of the minority groups in the smaller communities, although the regional organization of the Italian state is not primarily motivated by minority concerns.
- 151.
Bartole (1998), p. 183. However, Bartole returns to the substantive distribution of powers when indicating that in such an institutional setting, the “legal doctrine speaks no more about the sovereignty of the member states and prefers to bestow on them the nature of autonomous constitutional entities, that is, constitutional entities which do not have original powers but are the holders of powers transferred to them by the central state”. Hence there seems to exist a connection between the substantive and the institutional dimensions.
- 152.
Bartole (1998), p. 183.
- 153.
Palermo (2004), p. 110.
- 154.
Palermo (2004), p. 110.
- 155.
See Constitutional law no. 3 of 18 October 2001. Under section 117 of the Constitution of Italy, the state holds enumerated powers, while the regions are vested with residual powers.
- 156.
Palermo (2004), p. 110.
- 157.
As a consequence, the Spanish Constitutional Court held on 28 June 2010 that the interpretative references “Catalonia as a nation” and “Catalonia’s national reality” in the Preamble to Organic Law 6/2006 of 19 July 2006 to reform the Statute of Autonomy of Catalonia have no legal effect.
- 158.
Flores Juberías (1998), p. 196.
- 159.
See Flores Juberías (1998), p. 196 f., for the sources in the Spanish literature.
- 160.
See Flores Juberías (1998), p. 197, for the Spanish source.
- 161.
Ruiz Vieytez (2004), p. 147 f.
- 162.
Ruiz Vieytez (2004), p. 144.
- 163.
See Ruiz Vieytez (2004), pp. 139–144 for an overview of the different options of autonomous organization.
- 164.
Flores Juberías (1998), p. 199.
- 165.
Flores Juberías (1998), p. 209.
- 166.
Flores Juberías (1998), p. 209. See also Flores Juberías (1998), p. 212, where he outlines the complex distribution of competences in five different categories: integral competences, exclusive but limited competences, shared competences, concurring competences and indistinct competences. See also Ruiz Vieytez (2004), pp. 144–145, for a description of the distribution of powers.
- 167.
Ruiz Vieytez (2004), p. 138. This is the procedure for the regular autonomous communities, while the historical and more advanced communities participate in the amendment of their respective statutes, inter alia, by way of referendum.
- 168.
Flores Juberías (1998), p. 210.
- 169.
Flores Juberías (1998), p. 210.
- 170.
Ruiz Vieytez (2004), p. 149.
- 171.
Ruiz Vieytez (2004), p. 148. See also Anderson (2008), pp. 4, 10, who claims that Spain is effectively federal and that most experts would classify Spain as federal (such as Máiz and Losada 2011) but that many resist the term because they associate it with undermining national unity. It seems, however, as if most legal commentators would not place Spain amongst the federations.
- 172.
Lapidoth (1997), p. 49.
- 173.
- 174.
- 175.
Bogdanor (1999), pp. 2, 283.
- 176.
- 177.
Bogdanor (1999), p. 283.
- 178.
Bogdanor (1999), p. 2.
- 179.
Bogdanor (1999), p. 3.
- 180.
Bogdanor (1999), p. 2 f.
- 181.
See also Pilkington (2002), p. 9 f., who distinguishes between executive devolution (power to make decisions; typified by the Welsh Assembly), legislative devolution (power to make laws; typified by the Scottish Parliament) and administrative devolution (power to carry out specific functions; typified by the pre-devolution Scottish, Welsh and Northern Ireland Offices that had a functional autonomy of some kind). Concerning functional autonomy, see Suksi (2008b).
- 182.
- 183.
Bogdanor (1999), p. 292. According to Bogdanor, it would be difficult to abolish the Scottish devolution without organizing a referendum on the matter in Scotland.
- 184.
- 185.
Bogdanor (1999), p. 292.
- 186.
- 187.
- 188.
Bogdanor (1999), p. 3.
- 189.
Bogdanor (1999), p. 202.
- 190.
Bogdanor (1999), p. 293 f.
- 191.
Watts (2007).
- 192.
Watts (2007), p. 250.
- 193.
Watts (2007), p. 250.
- 194.
Watts (2007), p. 252.
- 195.
Watts (2007), pp. 252, 257, 260. Horizontal relations between the three devolved entities in the UK are not significant.
- 196.
Watts (2007), p. 266 f.
- 197.
Watts (2007), p. 267.
- 198.
Watts (2007), p. 267.
- 199.
Watts (2007), p. 268.
- 200.
For the British, it seems clearer that, for instance, Scotland is not a part of a federal structure. While distinguishing the devolved UK entities from federal arrangements, a report in 2009 concerning Scottish devolution points out that “the most obvious similarity is that Scotland enjoys a very substantial degree of autonomy under devolution, and relates to the UK Government in many of the same ways as a state government would to a federal one. In a federal system there are (at least) two constitutionally established levels of government. There is at least one function where each level has exclusive competence, and each level is constitutionally free to exercise its competence without the consent of the other level (and, at the lower level, independently of the other states, regions or provinces). In most federations the same structure applies across the territory of the federation, and the governments at each level are accountable to the relevant electorates (i.e. regional or federal). The constitutional system of the United Kingdom is not federal. Most obviously there is no second level government for its largest sub-national region (England). But also as a matter of constitutional law there are no functions for which the devolved Parliaments or Assemblies have exclusive competence. In most federal systems, not only is state- or provincial-level government operational in all parts of the country, but their powers tend to be broadly uniform, and so the powers of the federal government are uniform throughout its jurisdiction. The UK differs in this respect in that the powers of the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly differ, in some respects substantially, one from another. Most federal systems will have some special arrangement for particular territories with special circumstances, but Spain is an interesting example of more asymmetrical federalism. The system of autonomous communities allows for considerable differences between the powers they all exercise. The autonomous communities do, however, enjoy some exclusive competences and there is now no part of Spain which does not enjoy some decentralised powers. Devolution (in the sense in which we use the term) differs from these sorts of federalism since the devolving authority retains, at least as a matter of law, the power to alter the devolution settlement to impose new or different obligations or constraints on the devolved authorities, even within the scope of their competences.” See Serving Scotland Better (2009), p. 60. As pointed out by the report, p. 61, only 15 percent of the population of the United Kingdom live under the devolved governments.
- 201.
McFadden and Lazarowicz (2002), p. 5.
- 202.
McFadden and Lazarowicz (2002), p. 5.
- 203.
McFadden and Lazarowicz (2002), p. 6. Of course, as pointed out above, the different constitutional doctrines in the US and the supremacy clause in particular have resulted in a situation where the sphere of action of the constituent states is, in practice, very limited.
- 204.
McFadden and Lazarowicz (2002), p. 6.
- 205.
McFadden and Lazarowicz (2002), p. 7.
- 206.
McFadden and Lazarowicz (2002), p. 8.
- 207.
Such proposals are included, inter alia, in Henig (2006), passim, who on p. 15 expresses dissatisfaction with devolution because it does not seem to be derived from belief in any over-arching institutional theories or even from a coherent set of ideas. According to Henig, a federalization of the UK would require that England be divided in regions and that they would be given law-making powers and that a regional chamber would replace the House of Lords.
- 208.
Trench (2007e), p. 284. According to Trench (2007a), p. 70, the clear view among those who designed the institutional framework of devolution is that “what they were devising was not a federal system, by which they understand a clear distinction of functions and governments”. Against such a qualification, the distinction between federal and devolved systems would be based on the clarity vs. unclarity of functions and governments, which is probably not a very solid distinction. See also Hazell (2005a), p. 250, who concludes that “Westminster is not the equivalent of a federal legislature”.
- 209.
Himsworth and Munro (2000), p. xviii. However, they move cautiously in the direction of federalism by saying that “[i]n the result, it may not go too far to suggest that the relation between Scotland and the United Kingdom becomes semi-federal. Westminster and Whitehall have legal powers to intervene, but will be loath to impose them on unbiddable Scottish institutions, which may appear (and may claim) to be more representative of the popular will in Scotland”. However, there are few signs of federalism in the arrangement, while the terminology of territorial autonomy seems to illustrate the relationship better.
- 210.
See Trench (2007a), p. 55, who points out that it is very difficult to generalize about what devolution means because it is different for each of the entities (Scotland, Wales and Northern Ireland): “The devolution arrangements as a whole are profoundly asymmetric.”
- 211.
See Trench (2007c), p. 17.
- 212.
See Trench (2007a), p. 61, Himsworth and Munro (2000), p. xix f. Trench (2007a), p. 63: “While devolution may have created different governments accountable to different elected bodies, the relations between them would still work much the same way as they had when all were part of a single government accountable to Westminster.” See also Hazell (2005a), p. 230, who concludes that “Westminster has one relationship with the Scottish Parliament, and a completely different relationship with the National Assembly for Wales. Westminster continues to a surprising extent to be a three-in-one Parliament; but when legislating for the devolved territories it faces in three very different directions”. Of course, the position of Wales has changed with the strengthening the powers of the Welsh Assembly in 2006.
- 213.
Serving Scotland Better (2009), p. 41.
- 214.
Serving Scotland Better (2009), p. 51. This report of the so-called Calman Commission makes a comparative point that underlines our difficulty of at all including Scotland in a comparison of constitutional law, e.g., along the dimensions of the chart on different autonomy positions: Internationally the UK’s territorial constitution cannot be placed into a pigeon-hole alongside similar arrangements elsewhere. The UK is not a federal state like the US, Canada or Australia. Nor is it particularly like Spain, made up of different autonomous communities with differing levels of responsibility. (…) The UK is, as has been said, not just a Union State, but a State of different unions: different unions which have formed between England and each of its three neighbours”. Serving Scotland Better (2009), p. 60.
- 215.
See also Trench (2007a), p. 61.
- 216.
- 217.
Trench (2007c), p. 17.
- 218.
The European Charter of Regional Self-Government - Follow-up given by the Committee of Ministers to Recommendation 34 (1997) on the draft European Charter of Regional Self-Government - CPR (9) 6 Part II, of the report/explanatory memorandum of 3 April 2002 by Peter Rabe, Appendix IV and V. See also Resolution 146 (2002)1 of 6 June 2002 by the Congress of Local and Regional Authorities of the Council of Europe on the draft European charter of regional self-government.
- 219.
The models are explained in Appendix IV: Models of regional self-government to be prepared of the above document of the Council of Europe. A good number of European states are missing from the account, such as Greece, the Netherlands, Norway, Portugal, Romania, Slovenia and Slovakia.
- 220.
Evidently, Italy appears in this context with reference to the special regions.
- 221.
The United Kingdom appears in this context with reference to Scotland and Northern Ireland.
- 222.
Evidently, Italy appears in this context with respect to the “ordinary” regions.
- 223.
It is possible to dispute the conclusion indicated by model 3 that the Czech Republic and Hungary would have regions vested with legislative powers.
- 224.
The UK appears in this context with respect to Wales.
- 225.
Interestingly, the autonomous territories of the Faroe Islands and Greenland are not reported at all in relation to Denmark. If they were reported, they would be placed either in model 1 or, more likely, model 2.
- 226.
See Légaré (2008).
- 227.
See Hannum (1996), pp. 151–177.
- 228.
See Torode (2008).
- 229.
See Barbora (2008).
- 230.
There may be some variation to this principle, as for instance in Switzerland, where some small cantons are so-called half cantons, entitled to only one seat in the federal assembly, while the larger cantons have two.
- 231.
Wheare (1964), p. 11 f.
- 232.
Wheare (1964), p. 12.
- 233.
See Wheare (1964), p. 12 f.
- 234.
See also Wheare (1964), p. 48.
- 235.
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” See, e.g., Rossum and Tarr (2007), pp. 418–420, and Rotunda and Nowak (1999), pp. 199–231. See also Anderson (2008), p. 26, who makes the point that courts in federal systems “have tended to give broad interpretation to specified powers, whether federal or constituent unit, so the effect of residual power clauses has been less than envisaged by constitutional drafters”.
- 236.
Watts (2008), p. 84.
- 237.
Watts (2008), p. 89.
- 238.
Watts (2008), p. 89.
- 239.
However, it is not entirely clear in which meaning Watts uses the term ’devolution’. He seems to use it to describe instances of transfer of powers form the central government level to lower levels.
- 240.
Watts (2008), p. 85.
- 241.
Watts (2008), p. 87.
- 242.
Concurring powers are competences in the areas of which both the federal level and the state level are competent and where the state level can act until the federal level preempts the competence by its own action, while shared powers are competences occur in areas of “related” powers where both levels of government are competent to act without neither of them being paramount so as to require consent by both levels of governance before actions are taken. See Watts (2008), pp. 87–89, Anderson (2008), p. 26.
- 243.
Watts (2008), p. 89.
- 244.
In Europe, the following countries can be described as federations: Germany, Switzerland, and Austria, as well as Russia and Belgium. The latter two, however, display certain features that modify their federalism. Nevertheless, federalism is normally a fairly symmetrical mode of organization.
- 245.
Watts (2008), p. 89.
- 246.
Watts (2008), p. 89.
- 247.
Watts (2008), p. 89.
- 248.
Rolla (2009), p. 476.
- 249.
See also Olivetti (2009), p. 779.
- 250.
GA Res. 390 A (V), 2 December 1950. See also Lapidoth (1997), p. 129 f. Eritrea is an independent state since 1993.
- 251.
Lapidoth (1997), p. 130.
- 252.
However, see Hannum (1996), pp. 337–341, who follows the federalist terminology of the then Ethiopian legislation concerning Eritrea and does not react to the fact that the singular entity of Eritrea does not seem to be a federation, but instead an autonomy arrangement. For a personal account of how the special relationship between Ethiopia and Eritrea came into being, see Spencer (1984), pp. 223–260, where the use of the federal terminology seems very “intentional”. See also Negash (1997), p. 146: “For all intents and purposes, the relationship between Eritrea and Ethiopia was not in the least federal. Even according to the intentions of the UN, Eritrea was not granted a federal status but only a status of autonomy. Yet the UN and its advisors, including the Commissioner for Eritrea, Anze Matienzo, insisted on using the term federation without having to bother about laying down the appropriate infrastructure for its proper functioning.” These different interpretations concerning the conceptualization of the Eritrean situation underline the need for theoretical distinctions between autonomy arrangements and federations.
- 253.
Negash (1997), p. 138. According to Negash (1997), p. 147, the federation was doomed to fail because it did not reflect the conception and exercise of power as understood by the Unionist Party, that is, a party that advocated a complete union between Ethiopia and Eritrea. See also Negash (1997), pp. 184–229, for different documents illustrating the nature of the Eritrean autonomy arrangement, inter alia, the resolution of the General Assembly, the text of the Constitution of Eritrea, reports, election results, economic data, etc.
- 254.
According to Spencer (1984), p. 234, the three-government model of a federation (one overall state government and two sub-state governments) had to be discarded if there were to be any settlement and that the Ethiopian position was soon accepted that “Ethiopia was not to be federated with Eritrea, but the converse, that Eritrea was to be federated with Ethiopia under the sovereignty of the Ethiopian crown”. When the autonomy model was designed, the U.S. constitutional model was abandoned in favor of a two-government model of a “federation wherein the Ethiopian government was, at the same time, the federal government”. With, e.g., foreign powers vested in the state of Ethiopia, it seems as if Ethiopia was more a unitary state that included a singular autonomous entity. For an account of the diplomatic background to the Eritrean situation, see Okbazghi (1991), pp. 50–176, and Gayim (1993). See also Okbazghi (1991), p. 180, who laments the absence of any neutral arbiter between Eritrea and Ethiopia and concludes that “the imperial government of Ethiopia was designated both as the government of Ethiopia and as the government of Ethiopia and Eritrea, a unity completely alien to the concept of federalism”, and Negash (1997), p. 85, who holds that the “federation was not working because there was not distinction between the Ethiopian government and the federal government”. In this respect, the problem seems to have been somewhat similar to that of Zanzibar (see below, Chap. 4).
- 255.
See also Okbazghi (1991), p. 209: “By envisaging autonomy for Eritrea, the federal plan seems to have drawn a distinction between external self-determination, which was denied to Eritrea in view of its association with Ethiopia, and internal self-determination, in which the Eritreans were left to arrange their lives internally in accordance with their wishes.” However, the autocratic nature of the Ethiopian Government prevented the proper functioning of the Eritrean autonomy. See Okbazghi (1991), pp. 177, 188, 198 f., 208 f. But see also Negash (1997), p. 144, who maintains that the “federation arrangement had very few committed supporters. The first incursions against the Eritrean constitution were not from Ethiopia or the federal authorities but from the Eritrean Assembly and government.”
- 256.
In the 1956 elections to the Ethiopian parliament, Eritrea was consequently allocated 14 seats in a chamber of 201 members. See Negash (1997), p. 117 f., who also holds that interestingly, the Ethiopian election legislation was more progressive than that of Eritrea, because it introduced direct election with universal suffrage (including women), whereas the Eritrean inhabitants elected their representatives mainly indirectly through electoral colleges and on the basis of male votes only.
- 257.
- 258.
- 259.
The indifference was perhaps at least in part due to the fact that the autonomy arrangement was externally imposed both on Eritrea and Ethiopia, although such a solution was at the time the most feasible one. See Negash (1997), pp. 71, 144. One persistent problem was, however, the fluid role of the Chief Executive of Eritrea, an office which at times was united de facto if not de jure with the office of the Governor of Eritrea, who was the representative of the Emperor of Ethiopia. On the role of the Chief Executive, see Negash (1997), pp. 86 f., 97–106, 124, 128, 132 f. Remarkably, at a time of conflict between the Chief Executive of the Eritrean Government, that is, the Premier, and the Eritrean Assembly, the autocratic Emperor of Ethiopia himself felt that the Eritrean Assembly should be reminded of the workings of parliamentary assembly and “instructed his representative in Asmara to inform the Eritrean Assembly that the suspension of the regular session was unconstitutional and that the Eritrean assembly had the power to pass a vote of no confidence in those whom it had in the first place elected”. Negash (1997), p. 105.
- 260.
After civil war and the Communist experiment in Ethiopia, Eritrea eventually proclaimed independence in 1993.
- 261.
On 10 August 1998, 61.83 percent of the voters who participated in a referendum in Nevis voted to secede from the Federation of St. Kitts and Nevis on the basis of section 113 of the Constitution. However, the referendum result was not formally valid due to the failure to reach the two-thirds qualified majority. According to section 113(1), “[t]he Nevis Island Legislature may provide that the island of Nevis shall cease to be federated with the island of Saint Christopher and accordingly that this Constitution shall no longer have effect in the island of Nevis”.
- 262.
Statutory Instruments 1983 No. 881, the Saint Christopher and Nevis Constitution Order 1983, made in the Privy Council at the Court at Buckingham Palace, the 22nd day of June 1983. The Constitution of Saint Christopher and Nevis is found in Schedule 1 of the royal order.
- 263.
A part of the senators are appointed by the Governor-General upon the recommendation of the Prime Minister and another (greater) part upon the recommendation of the Leader of the Opposition. It seems on the basis of section 41 of the Constitution that the distinction between representatives and senators is only relevant concerning votes of no confidence, whereas the two categories of parliamentarians in other respects, such as voting on legislation, appear to have equal rights.
- 264.
Matters with respect to which the Nevis Island Legislature has exclusive power to make laws are listed in part I of schedule 5 to the Constitution as follows: agriculture, amenities for tourists, animals, archaeological or historical sites and monuments, borrowings of money, or obtaining grants of money, for the purposes of the Nevis Island Administration and the making of grants and loans for those purposes, cemeteries, cinemas, conservation and supply of water, dangerous or inflammable substances, economic planning and development other than national planning and development, employment of persons who are not citizens, hotels, restaurants, bars, casinos and other similar establishments, housing, industries, trades and businesses, land and buildings other than land and buildings vested in the Crown and specifically appropriated to the use of the Government, including holding of land by persons who are not citizens, manufacture and supply of electricity, parks and other places for public recreation, prevention and control of fires, roads and highways, sport and cultural activities, the matters with respect to which the Nevis Island Legislature is empowered to make laws by sections 47, 70, 71, 72 and 73, as applied with modifications by section 104, and by sections 102(l) and 113, any matter added by Parliament under section 37(6) and any matter that is incidental or supplementary to any matter referred to in this list.
- 265.
This is a procedure that resembles very much the Legislative Consent Motion (or the so-called Sewel mechanism) introduced for Scotland almost 20 years later than for Nevis (see Sects. 5.4.1 and 5.4.4, below).
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Suksi, M. (2011). The Relationship between Federalism and Autonomy. In: Sub-State Governance through Territorial Autonomy. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20048-9_3
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