The Interplay between Political, Legal and Institutional Dimensions of Territorial Autonomy – A Comparative Perspective
Sergiu Constantin
May 2023
Constantin, Sergiu. 2023. “The Interplay between Political, Legal and Institutional Dimensions of Territorial Autonomy – A Comparative Perspective”. In Autonomy Arrangements in the World. www.world-autonomies.info.
This content is licensed under a Creative Commons Attribution 4.0 International license.
1. Introduction
A fully-fledged territorial autonomy (TA) generally involves the transfer of certain powers from the state level to the sub-state level. It should be emphasized that the respective powers are transferred and not simply delegated to sub-state authorities. Delegation of powers may be a temporary and reversible process. In the case of delegation of powers, the sub-state authorities exercise the respective competences in the name of the central government which can retake them through a unilateral decision at any time (Marko and Constantin 2019, 386).
Various states use TA as an instrument for territorial and cultural diversity governance. Interestingly, some of these TAs have been established within unitary states organized on a decentralized basis (e.g., Aland Islands in Finland, Vojvodina in Serbia, Greenland in Denmark). Furthermore, there are several examples of TAs established within the constitutional framework of former centralized states that went through a process known as devolution of powers in the United Kingdom (e.g., Wales), regionalization in Italy (e.g., South Tyrol) and Spain (e.g. the Basque Country) and federalization in Belgium (e.g. regions and communities such as the German-speaking Community). Finally, some well-known TAs function within federal countries (e.g., Quebec in Canada).
Factors that may shape the scope, structures and functions of TAs include, among other things, democracy and rule of law, competing nation-building processes, and international engagement (Woodman and Ghai 2013, 452; Kössler 2015, 257). A well-functioning TA resembles a metaphorical house that shelters and protects all its people regardless of their ethnicity, language, or religion. This common house has solid political foundations built on negotiation, compromise and mutual trust, a stable yet flexible legal architecture, and a superstructure composed of effective institutional mechanisms of conflict resolution, consultation, cooperation and coordination. The success or failure of a TA arrangement depends mainly on the interplay between its political, legal and institutional dimensions.
2. Political Dimension
The establishment or reform of a TA arrangement is the outcome of a hard-negotiated compromise between political elites of majority and minority groups at state and sub-state levels. International actors may play an important role in this political process.
2.1. Political actors, political bargain and compromise within a long-term process
Examples in practice demonstrate that the political process is successful when the parties enter negotiations in good faith, give up their incompatible goals and maximalist claims, and focus on pragmatic solutions for specific issues such as the division of competences, the establishment of autonomous institutions, and the creation of power-sharing mechanisms. The whole process can be easily derailed by the perceived unwillingness of some political actors to engage in constructive dialogue or by excessive politicization of negotiations for short-term political gains. TA is not a fix-all solution and building a well-functioning TA is a long-term process that depends on the full commitment and joint efforts of political elites at both state and sub-state levels. Using autonomy as political window-dressing is a self-defeating strategy. An autonomous system that exists on paper but does not work in practice is not only useless but potentially harmful to majority-minority relations. Neither is TA a static system; it requires permanent maintenance work, periodic assessments, and updates or adjustments whenever necessary. The involvement of international actors (i.e., the kin-state, other mediator countries, and international organizations) may be particularly useful for kick-starting the political process. The international community may also support the political process by providing technical and financial assistance during the negotiation and/or implementation phase.
| Examples |
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→ Long-term political processes Aland: Finland passed a law on the autonomy of Aland as early as 1920, but the Alanders did not accept it. The majority of the Alandic population wanted to join Sweden and rejected Finland’s claim of sovereignty over the islands. The two countries agreed to bring the Alandic question before the League of Nations, which established a Commission of Rapporteurs with the mandate to find a solution to the dispute. In 1921, the Council of the League of Nations decided that Aland should remain part of Finland, but that the TA system must include additional guarantees for the protection of the language and culture of Aland. Finland and Sweden signed the so-called "Aland Agreement" which introduced six additional guarantees into the 1920 law on the autonomy of Aland. In 1922, the legislative body of Aland approved the amended Autonomy Act. The implementation process was rather difficult in the first decades, and many Alanders were disappointed and frustrated by what was perceived as a dysfunctional autonomy. After the Second World War, the Alandic political elites again raised the question of joining Sweden. However, Sweden supported the autonomy solution and Finnish and Alandic politicians engaged in discussions over a major reform of the 1922 Autonomy Act. The outcome of this negotiation process was the Autonomy Act of 1951, which strengthened the self-government system. It is considered a turning point for the TA of Aland because, since then, Alandic and Finnish authorities have joined their efforts to ensure the well-functioning of the autonomy. Despite not always agreeing on certain matters, they worked together within the legal-institutional framework established by the TA arrangement. A second reform addressing mainly the financial system of the autonomous region led to the adoption of the Autonomy Act of 1991. A third major revision is currently underway, with the aim to be enacted in 2022 when Finland and Aland will celebrate 100 years since the establishment of the autonomy (Spiliopoulou Åkermark et al. 2019). South Tyrol: In 1946, Italy and Austria signed the so-called “Gruber-De Gasperi Agreement” that guaranteed the autonomy of South Tyrol and the rights of the German-speaking population regarding the protection of identity, equality, political participation, etc. According to the Autonomy Statute of 1948, South Tyrol enjoyed autonomy as part of the larger autonomous region of Trentino–South Tyrol. However, the self-governing powers of the province of South Tyrol were rather limited. This condition led to increasing dissatisfaction among the German-speaking community. The situation escalated, and in less than a decade, the tension erupted into violence. In 1960, the United Nations General Assembly discussed the South Tyrol question and issued two resolutions urging the parties to resume negotiations in order to settle the conflict. A year later, the Italian government established the so-called “Commission of 19”, with the mandate to examine the South Tyrolean autonomy and propose a set of measures to improve self-governance and relations among the three linguistic groups (i.e., German, Italian and Ladin) living in the province. The “Commission of 19” was composed of both politicians and experts – 11 members belonged to the Italian linguistic group, seven to the German linguistic group and one to the Ladin linguistic group. It is worth noting that members from the Italian linguistic group represented not only the national government but also the governments and parliaments of the Trentino-South Tyrol region and the province of South Tyrol. Based on the report of the “Commission of 19”, the Italian government and the political representatives of South Tyrol agreed on a Package of 137 legislative and administrative measures to reform the 1948 Autonomy Statute. The outcome of this political process was the adoption of the Autonomy Statute of 1972 which transferred most of the legislative and executive competences to South Tyrol and established a system of power-sharing among the three linguistic groups. In the last decade, increasing societal changes and challenges have triggered a lively debate in the autonomous province over the need to update the 1972 Autonomy Statute. In 2015, South Tyrol’s provincial parliament started a consultative participatory process that aims to reform the 1972 Autonomy Statute with the help of the regional population through mechanisms of deliberative democracy (Carlà and Constantin 2019). Greenland: Denmark recognized Greenland as a distinct community within the Danish Realm in 1979 following the enactment of the 1978 Home Rule Act. The autonomy system of Greenland was designed and developed through bilateral negotiations and trust-building within several joint commissions with equal political representation for the state and Greenland. In 1975, a joint commission chaired by a neutral person and composed of seven Greenlandic and seven Danish politicians appointed by their respective governments was tasked to examine the legal and administrative conditions for the transfer of competences to Greenland. These bilateral negotiations resulted in the establishment of the first autonomy system in accordance with the 1978 Home Rule Act. After the Greenlandic society went through rapid development during the following 20 years, both sides agreed upon the need to reform the legal-institutional framework of the TA. A new joint commission established in 1999-2000 assessed the functioning of the autonomy arrangement and made proposals on how to develop the self-government system (Ackrén 2022). The outcome of this political process was the adoption of the Act on Greenland Self-Government of 2009. Its preamble states that equality and mutual respect should prevail in the relationship between Denmark and Greenland, and defines Greenlanders as a people with the right to self-determination, in accordance with international law. The 2009 Act on Greenland Self-Government stipulates that the Greenlandic people may decide on the issue of independence and that an agreement on independence from Denmark requires a referendum in Greenland and approval from the Danish parliament. North Macedonia: In 1992, the Albanian minority in the Republic of North Macedonia (known at that time as the “Former Yugoslav Republic of Macedonia”) organized an illegal referendum on the territorial autonomy of the Western part of the country, an area with a majority Albanian population. Nearly a decade later, internal ethnic tensions and the spill-over effect of the war in Kosovo led to a violent conflict between Albanian guerrillas and Macedonian security forces (Cekik 2014). In the spring of 2001, the European Union (EU) and the United States (US) cooperated to bring the conflicting parties to the negotiation table. The EU played the main role, offering strong political incentives (e.g., the Stabilization and Association Agreement signed with the country in April 2001, the first such agreement in the region) and a consistent financial aid package. The timely intervention of international actors prevented a full-scale war and helped the parties to negotiate and reach an agreement. In August 2001, the leaders of the main four political parties in the country (two representing the Macedonian majority and two representing the Albanian minority) signed the Ohrid Framework Agreement (OFA) together with the president of the republic and the special representatives of the EU and the US. The OFA famously states that “there are no territorial solutions to ethnic issues”, but despite this, a key point of the agreement has a clear territorial dimension: redrawing the boundaries of some municipalities with the aim of increasing the percentage of local Albanian population able to benefit from the rules regarding education in the mother tongue, use of minority language in public administration, use of minority symbols, etc. The OFA does not provide for TA in the strict sense, but “territoriality is to some degree essential in any attempt to introduce autonomy in the context of culturally diverse societies” (Kössler 2015, 246). Given the territorial concentration of the Albanian population in several municipalities of North Macedonia, one may argue that the OFA and the subsequent constitutional amendments and regulations on territorial-administrative reorganization established a system of power-sharing and “informal territorial autonomy” (Cekik 2014). The EU, the US and the OSCE continue to monitor the implementation of the OFA and provide technical and financial assistance. |
2.2. A shared vision of an inclusive autonomy
A comparative examination of political processes that lead to the establishment of TA arrangements reveals that often the parties have different understandings and expectations vis-à-vis territorial autonomy. Therefore, it is essential that political actors develop a clear and shared understanding of the scope, structures and functions of the TA, and pursue the best available option. In this context, an issue that deserves particular consideration is diversity governance within the autonomous entity. While many TAs are established with the aim of protecting a certain minority group, only successful political processes lead to inclusive self-government arrangements which “reflect the views of all the communities settled in the concerned territory (…) and respect the human rights of all persons, including of minorities, within their jurisdictions” (OSCE High Commissioner on National Minorities 2012, 47). As a minority group in the country becomes the majority in the autonomous entity, it is important that the TA arrangement does not simply replicate the power relations of the nation-state model on a smaller scale at the regional level. An inclusive TA develops as a “shared common good” (Palermo 2015; Kössler 2015). Indeed, several well-functioning TAs have developed beyond their original scope of protecting a certain minority group. They address minority rights from a wider perspective, taking into consideration the heterogeneity of the population living in the TA.
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→ Inclusive autonomy arrangements South Tyrol: The initial rationale for the establishment of South Tyrolean autonomy was the protection of the German linguistic group. The 1946 “Gruber - De Gasperi Agreement” focused on the rights of the German-speaking population but made no reference to the situation of the small Ladin minority. The 1948 Autonomy Statute contained just one article stating that the province should respect the Ladin culture and traditions and should guarantee the teaching of the Ladin language in primary schools located in the Ladin valleys. The 1972 Autonomy Statute improved the level of protection of the Ladin minority, but the legal-institutional framework was clearly designed to ensure a symmetrical balance between the German and Italian linguistic groups in South Tyrol. However, Constitutional Law no. 2/2001 amended the 1972 Autonomy Statute and introduced several special provisions for the protection of Ladins. The amended Autonomy Statute guarantees the representation of the Ladin linguistic group within South Tyrol’s parliament. The provincial parliament elects its rotating presidency in the following manner: a German-speaker is the president of the parliament for the first half of the mandate and an Italian-speaker for the second half; a Ladin-speaker may become president of the legislature if either the German or the Italian linguistic group accepts to leave this position to the Ladin group for the respective half of the mandate of the rotating presidency. The composition of South Tyrol’s government reflects the numerical strength of the linguistic groups as represented in the provincial parliament. However, the Ladin linguistic group is represented in the government by derogation from the proportional principle (Arts 48, 48-ter and 50 (3) of the Autonomy Statute). South Tyrol’s government has at most nine members, and if only one out of the 35 members of the parliament is Ladin, a rigid application of the proportionality principle would mean no representation of the Ladin linguistic group in the provincial government. A 2017 reform of the legal-institutional framework of South Tyrolean autonomy emphasizes the inclusive autonomy approach. Constitutional Law no.1/2017 amended the 1972 Autonomy Statute with the aim of further strengthening the protection of the Ladin minority. Besides the two vice-presidents belonging to the German and Italian linguistic groups, the president of the autonomous province of South Tyrol (who is also the head of the South Tyrolean government) may have a third vice-president belonging to the Ladin linguistic group (Article 50 (1) of the Autonomy Statute). Most importantly, the 2017 amendment makes possible the representation of the Ladin linguistic group in the Commission of Six (Article 107 (2) of the Autonomy Statute), the main decision-making body overseeing the implementation of the 1972 Autonomy Statute (see section 4. Institutional Dimension below). Currently, the autonomy system guarantees the protection and promotion of the cultural identity of all communities. Each linguistic group has its own education and cultural departments within the provincial administration. While the German and Italian linguistic groups have monolingual education in their mother tongues from kindergarten to secondary school level, Ladin schools are bilingual in the sense that half of the subjects are taught in German and the other half in Italian, and the Ladin language is studied as a separate subject. In the context of the ongoing debates regarding the reform of the 1972 Autonomy Statute, one of the main proposals is to supplement the existing system of monolingual education for German and Italian linguistic groups with the option of bilingual schools or classes (Carlà and Constantin 2019). Vojvodina: A traditionally multi-ethnic and multilingual region, Vojvodina is an illustrative example of TA “in which ethnicity was instrumental in determining the reasons for the development of territorial autonomy, but the legal design of the autonomy regime emphasizes the territorial dimension more than the ethnic one” (Palermo 2015, 18). According to Article 7 of the 2014 Autonomy Statute of Vojvodina, multilingualism, multiculturalism and freedom of religion are values of particular interest to the autonomous province. Therefore, the provincial authorities should take the necessary measures to preserve and develop the cultural heritage of national minorities living in the TA and “to support mutual learning about and respect for languages, cultures and confessions” in the autonomous province. The 2014 Autonomy Statute allows the official use in provincial bodies of five minority languages (i.e., Hungarian, Slovak, Croatian, Romanian and Ruthenian) alongside Serbian (Article 24 of the 2014 Autonomy Statute). The interplay between the provincial authorities and the national councils of minorities living in Vojvodina aims to ensure the protection and promotion of their distinct cultural identities. The autonomous province provides more financial resources to those national minority councils that have their seat in the TA. Some councils took over certain tasks from the provincial bodies; for instance, the autonomous province transferred completely or partially to the national councils of Hungarian, Slovak, Romanian, Croat and Ruthenian minorities the management of newspapers in these minority languages and of their cultural institutes (Korhecz 2015; Beretka and Gergő Székely 2016). Public education (from kindergarten to university) is a competence of the autonomous province. Some minority national councils also took over the management of public schools financed by the state, the autonomous province, and local municipalities. Most minority schools provide education in both Serbian and their minority language, but there are also schools with instruction only in minority languages. German-speaking Community in Belgium: An autonomous entity that covers a small territory in Eastern Belgium, the German-speaking Community functions at the intersection between German and French cultures. The French speakers living in the territory of the German-speaking Community are de facto a small linguistic minority within the autonomous entity. They are not officially recognized as such by Belgian legislation, but the autonomy arrangement follows an inclusive approach and provides them with so-called “language facilities”. In all municipalities of the German-speaking Community, the French-speaking residents may use their mother tongue in the educational system and in relations with the public administration. There are also primary schools with instruction in French – an exception from the general rule of German language education. Additionally, secondary schools are allowed to teach subjects in French and are not limited to teaching the French language itself. They are free to decide which subjects ought to be taught in French (Marko and Constantin 2019). The minister of education of the German-speaking Community determines the structure, curricula and methods of teaching and ensures the financing of the school system. A further decree in 2011 allowed the establishment of bilingual kindergartens in the autonomous entity, and a similar regulation in 2015 provided the opportunity to establish bilingual primary schools under certain conditions. |
3. Legal Dimension
To function well, a TA needs an effective legal entrenchment with well-defined amendment procedures, a clear and flexible division of powers, and legal protection by an independent judiciary.
3.1. Legal entrenchment and amendment procedure
The type of legal entrenchment is crucial for the stability, protection and development of the TA. In practice, legal entrenchment of TAs varies from strong (i.e., Constitution or Statute/Act of constitutional rank) to weak (e.g., regular law of the national parliament or regional law of the parliament of the TA). In between these two poles there are various forms of entrenchment such as a special organic law that may be amended only through a complex procedure or a national/regional law which requires approval in a regional referendum. Most well-functioning TAs are constitutionally or quasi-constitutionally entrenched to ensure the necessary stability and security of the autonomous system. However, under certain circumstances, such a strong legal entrenchment may become a gilded cage, making it very difficult to reform the TA (Palermo 2008). Therefore, the legal structures of TAs need a certain degree of built-in flexibility to facilitate the updates and adjustments required by new realities and societal challenges. In most cases, both the central authorities and the TA have the right to propose amendments to the basic law of the TA (e.g., Autonomy Statute/Act/Organic Law), but no reform is decided unilaterally.
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→ Legal entrenchment and amendment procedures South Tyrol: Article 116 of the Italian Constitution recognizes “special forms and conditions of autonomy pursuant to the special statutes adopted by constitutional law.” The 1972 Autonomy Statute of South Tyrol has constitutional law rank and cannot be unilaterally amended. The provincial parliament, as well as the national government and parliament, may propose amendments to the Autonomy Statute. Any change in the Autonomy Statute must be approved through the complex legal procedure for constitutional amendment as stipulated in Article 138 of the Italian Constitution. Approved amendments to the Autonomy Statute are not subject to a national referendum. By way of exception, Article 104 of the 1972 Autonomy Statute stipulates that certain provisions of the Statute (e.g., the whole Part VI dealing with the TA finances) may be amended by ordinary state law in agreement with the autonomous province. This built-in flexibility of the basic law of the TA allows the state and the autonomous province to renegotiate and update their financial arrangements whenever it is necessary. Aland: Article 120 of the Finnish Constitution states that the Aland Islands have self-government in accordance with what is stipulated in the 1991 Autonomy Act. Although the 1991 Autonomy Act is a law of the Finnish parliament (which was adopted with the approval of the Alandic parliament), legal scholars argue that it has a quasi-constitutional status within the Finnish legal order (Suksi 2011, 156-158; Spiliopoulou Åkermark et al. 2019). Any amendment to the 1991 Autonomy Act needs approval of both the Finnish and the Aland parliaments. The Finnish parliament must follow the demanding procedure for a constitutional amendment envisioned in Article 73 of the Finnish Constitution, meaning that the amendment to the 1991 Autonomy Act can be adopted only with a qualified majority of two thirds of the votes cast. This amendment must then be approved in the Aland parliament with at least two thirds of the votes cast. Basque Country: Article 2 of the Spanish Constitution “recognises and guarantees the right to self-government of the nationalities and regions”. The 1979 Autonomy Statute has a dual nature: it is the basic law of the Basque Country and an organic law within the hierarchy of norms of the Spanish legal system. The 1979 Autonomy Statute of the Basque Country was approved by the Basque parliament, adopted by regional referendum, and then approved by the Spanish parliament through the special procedure required to adopt organic laws as detailed in Art 81 of the Spanish Constitution. The Basque government, the Basque parliament, and the Spanish parliament each have the right to initiate amendments. The reform proposal must be first approved by the Basque parliament with an absolute majority. Then, the Spanish parliament must approve it as an organic law. Finally, the amendments must be validated in a referendum called for this purpose in the Basque Country. |
3.2. Division of competences
The division of competences has a major impact on the relationship between the state and the TA.
An unclear distribution of powers often leads to an increasing number of conflicts of competence between the two levels of government. However, too rigid a scheme for the division of powers may ossify the relationship between the central authorities and the autonomous entity, thus reducing their cooperation and affecting the development of the TA in the long term. Therefore, when it comes to the division of competences, TA arrangements must strike the right balance between clarity and flexibility. The exclusive powers of the TA are often listed in its basic law and, for the sake of clarity, the Constitution contains a residual powers clause allocating unlisted powers to one of the two levels of government. Other countries organize the division of powers through a system of double enumeration of competences in the basic law of the TA or in the Constitution, where one list delineates the powers of the state and the other enumerates the powers of the TA. A list of concurrent powers may introduce a certain degree of flexibility in the legislative process, provided that the state and the TA regularly consult and cooperate. However, significant competence overlaps between the two levels of government and disagreements on the specific content of concurrent powers may increase the risk of conflict of competences. Concurrency may be explicit or implicit. Explicit concurrency is established by the Constitution and/or the basic law of a TA, which provides a list of concurrent powers. Implicit concurrency may occur when, for instance, a TA is allowed to exercise certain powers which are not listed among its exclusive competences. Furthermore, in some cases, certain subject matters that are listed as “exclusive powers” may in fact be shared powers, as the regulations of the TA must comply with state laws. A long and detailed list of competences may be of little use for a TA which does not have (at least initially) the legal-institutional capacity and/or the necessary human and financial resources to deal with some of the listed subject matters. Most probably, the state will take over these competences and will de facto limit the powers of the TA. The mechanism of delegation of powers from the central authorities to the TA is generally included in the Constitution and/or the basic law of the autonomous entity. The TAs may submit legal proposals on matters falling under state competence to central authorities. Additionally, some TA arrangements have established special procedures that enable the two levels of government to negotiate further transfers of powers.
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→ Exclusive powers and residual powers clause Basque Country: The exclusive powers of the Basque Country are listed in Article 10 of the 1979 Autonomy Statute and, according to Article 149 (3) of the Spanish Constitution, residual powers belong to the state. All matters that are not specifically assigned to the Basque Country by its Autonomy Statute fall under state competence.
South Tyrol: In the case of South Tyrol, Article 8 of the 1972 Autonomy Statute lists the exclusive competences of the autonomous province. Art 117 of the Italian Constitution lists the exclusive powers of the state but grants the residual powers to the TA. South Tyrol has legislative powers in all subject matters that are not expressly covered by state legislation.
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→ Double enumeration of powers Aland: The 1991 Autonomy Act of Aland provides two separate lists of competences. Article 18 of the Autonomy Act enumerates matters that fall under the legislative powers of Aland, and Article 27 lists the state’s competences. Quebec: Quebec provides another example of such double enumeration of legislative powers. Article 91 of the Canadian Constitution lists the powers of the national parliament and Article 92 enumerates the exclusive powers of the provincial legislative bodies. The residual powers clause included in Article 91 of the Constitution grants the national parliament competence over all areas not exclusively reserved to the provinces. |
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→ Concurrent powers South Tyrol: Article 9 of the 1972 Autonomy Statute and Article 117 (3) of the Italian Constitution list concurrent powers of the two levels of government. This is an explicit framework concurrency, as the legislative power of the TA regarding the respective subject matters is limited by the obligation to observe the framework of state legislation. Aland: The list of Aland competences is definite but not exhaustive, since Article 18 (27) of the 1991 Autonomy Act grants so-called "implied powers" (Suksi 2011, 301) to the TA in certain matters – other than those enumerated as exclusive competences of Aland in Article 18 (1)-(26) – deemed to be within the legislative competence of Aland in accordance with the principles underlying the 1991 Autonomy Act. For instance, the Finnish Supreme Court upheld the implied power of the Aland parliament to pass legislation concerning an advisory referendum, although this matter is not enumerated among the legislative powers of Aland (Suksi 2018, 87-88). Basque Country: Article 10 of the 1979 Autonomy Statute of the Basque Country lists 39 matters that fall under the exclusive competence of the TA, such as woodland and forestry resources. However, Article 149 of the Spanish Constitution gives the state exclusive competence over basic legislation in this area. Because of this, the Basque Country can only adopt legislative or executive rules in accordance with the state legislation. Thus, this subject matter described as exclusive competence of the TA under the Autonomy Statute of the Basque Country is in fact a shared power. Vojvodina: Chapter 3 of the 2009 Autonomy Statute of Vojvodina deals specifically with the exclusive powers of the TA. Moreover, each area of competence listed in the Autonomy Statute is further specified and defined in Law no. 99/2009 on establishing the competences of the autonomous province of Vojvodina. However, the legislative body of Vojvodina regulates issues falling into its areas of competence by bylaws, which must always be in accordance with the state legislation (Beretka and Gergő Székely 2016). |
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→ Delegated powers and further transfer of powers South Tyrol: According to Article 117 (6) of the Italian Constitution and Article 17 of the 1972 Autonomy Statute of South Tyrol, the state may delegate legislative powers to the TA in subject matters that fall under state competence. In the 1990s, South Tyrol went through the so-called phase of “dynamic autonomy” (Woelk 2008, 123) as several additional state powers were transferred to the province following bilateral negations in joint commissions (see section 4. Institutional Dimension below). Article 35 of the 1972 Autonomy Statute grants the TA authorities the right to submit proposals and draft regulations to central authorities on matters that are not within the TA competence, but which may be of special interest to the autonomous region. Aland: Article 29 of the 1991 Autonomy Act of Aland lists several powers of the state that may be delegated to the Aland parliament with its consent. In addition, according to Article 22 of the 1991 Autonomy Act, the Aland parliament may also submit initiatives on matters within the legislative competence of the state to the government and parliament of Finland. Basque Country: According to Article 28 of the Autonomy Statute of the Basque Country, the Basque parliament may call on the Spanish government to adopt a specific law or to refer a draft law to the parliamentary committee of the lower house of the Spanish parliament. Article 150 (2) of the Spanish Constitution stipulates that the state may transfer or delegate to TAs some of its powers, and Article 20 of the 1979 Autonomy Statute confirms that the TA has legislative and executive powers regarding any additional matters transferred or delegated to it by the state, at the request of the Basque parliament. The Basque Country and the state negotiate the transfer of competences over subject matters listed in the 1979 Autonomy Statute in a joint commission (see section 4. Institutional Dimension below). Between 1993 and 2011, 34 such competences were officially transferred from the state to the Basque Country (Romero Caro and Escajedo San-Epifanio 2020). Wales: The 2006 Government of Wales Act granted legislative power to the Welsh assembly (now known as the Welsh parliament) in several matters (i.e., specific areas of competence) listed within various fields (i.e., broad subject areas such as culture, education, transport) delineated by Schedule 5 of the Act. The 2006 Government of Wales Act also put in place a special procedure which enabled negotiations between the two levels of government regarding further devolution of powers. The 2014 Wales Act devolved further powers from the central authorities to Wales, (e.g., power to make primary legislation on taxation) and the following 2017 Wales Act established a reserved powers system in which the Welsh parliament can legislate on any matter unless it is reserved to the parliament of the United Kingdom. |
3.3. Legal protection by an independent judiciary
The highest Court in the country (i.e., the Constitutional Court or the Supreme Court) is the arbiter in disputes between the central authorities and the TA. The main role of an independent and impartial Court is to ensure that the overall system of autonomy functions properly and in accordance with the constitutional framework, and to protect the TA against unjustified interference from the central government. The Court may also play an active role in clarifying and defining certain aspects of the TA arrangements. In some cases, special selection and appointment procedures for judges ensure the representation of the autonomous entity at the highest level of the judiciary. Besides the symbolic representation, the presence of these judges guarantees that the Court has expertise on the rules and regulations of the autonomous region. Judicial adjudication should be the last resort. Most well-functioning TAs have established conflict resolution mechanisms (see section 4. Institutional Dimension below) to solve disputes through bilateral negotiations.
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→ Role of the Constitutional Court or the Supreme Court
Italy: The Constitutional Court of Italy played a crucial role in underpinning the principle of bilateral negotiations between the state and South Tyrol regarding the concrete measures required for the implementation of the 1972 Autonomy Statute. From 1972 to 1999, the case-law of the Constitutional Court became “more relevant in determining the real powers of the regions than the laws and the wording of the Constitution itself.” (Palermo 2008, 35). Even in more recent years, the development of the Italian system of regional autonomies was determined largely by the Constitutional Court. In the wake of the 2008 financial crisis, Italian governments adopted several austerity measures which affected the financial situation of the TA. South Tyrol challenged these unilateral measures before the Constitutional Court, in cases that were instrumental in defining the scope of and procedures regarding its financial autonomy (Alber and Zwilling 2014, 43). The Italian and South Tyrolean governments reached an agreement through bilateral negotiations, and in 2014 signed the so-called Safeguard Pact which outlined the new financial arrangements between the state and the autonomous province.
Finland: The Supreme Court of Finland issues opinions on legislation of Aland when requested by the Finnish Ministry of Justice. These opinions are not binding, but they help the president of Finland decide whether to promulgate or block Alandic legislation if the parliament of Aland exceeds its defined legislative competences. Generally, the president of Finland follows the opinion of the Supreme Court. This special procedure only applies to Aland, as generally the legality and constitutionality of legislation in Finland is only supervised ex ante by the Constitutional Law Committee in the Finnish parliament because Finland does not have a special Constitutional Court for ex post review (Spiliopoulou Åkermark et al. 2019, 11). |
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→ Representation of TA on the Constitutional Court or the Supreme Court Canada: The representation of Quebec on the Supreme Court of Canada has a constitutional status. The Court was constitutionally entrenched by the 1982 Constitution Act, and Article 6 of the 1985 Supreme Court Act stipulates that at least three of the Court's nine judges must be appointed from Quebec.United Kingdom: The Supreme Court of the United Kingdom is composed of 12 judges appointed for life. According to Article 27 of the 2005 Constitutional Reform Act, the selection commission must ensure that “between them the judges will have knowledge of, and experience of practice in, the law of each of each part of the United Kingdom." In practice, this requirement guarantees continued representation from Wales, Northern Ireland and Scotland. Among other things, the Supreme Court decides on devolution issues (i.e., whether the authorities of Wales, Northern Ireland and Scotland have acted or propose to act within their powers). North Macedonia: Judges of the Constitutional Court are elected by North Macedonian parliament. According to Amendment XV to the Constitution implementing the 2001 Ohrid Framework Agreement (see section 2. Political Dimension), the election of three of the nine judges of the Court requires a double majority (see also veto rights under section 4. Institutional Dimension): first, the majority vote of the total number of members of parliament, and second, the majority of the votes of the total number of members of parliament who belong to the minority communities living in the country. In practice, this means that three out of nine judges of the Constitutional Court belong to the Albanian minority. |
4. Institutional Dimension
In fully-fledged TAs, various institutions and mechanisms for conflict resolution, consultation and/or co-decision, cooperation and coordination must be present. These institutions and mechanisms deal not only with vertical relations (between the state and the TA) but also with horizontal relations (between ethno-linguistic groups living in the TA).
4.1. Mechanisms of conflict resolution, consultation and/or co-decision
Some TAs make use of specially designed dispute resolution mechanisms that combine political and judicial features. These joint bodies, composed of an equal number of political representatives from the state and the TA, are tasked with solving potential conflicts of competence before they reach the high court. If the political body fails to find a solution, the question is then decided by judges. Most TAs have institutions and mechanisms for consultation and/or co-decision, ranging from joint expert bodies to (suspensive and/or absolute) veto powers. It is worth noting that the role and responsibilities of consultative bodies may evolve over the years. The Aland Delegation and South Tyrol’s Commission of Six are illustrative examples in this regard. Now, these bodies not only have a say in the decision-making process, but also contribute greatly to the legislative development of their respective autonomous systems. The state and the TA have equal representation in these expert bodies despite the significant differences between them in terms of territorial and population size. Some TA arrangements have veto powers embedded into the Constitution or their basic law, but this practice has yielded mixed results. On the one hand, the right to veto may be an effective tool for influencing decision-making processes. On the other hand, it can lead to a complete paralysis of decision-making if abused. Veto rights can nevertheless be effective if they have a limited scope, (i.e., well-defined policy areas where they apply) and if the mechanism has built-in mediation procedures that are activated once the veto is invoked (Bieber 2004). Finally, the effectiveness of veto powers depends to a large extent on the specific political, social, and cultural context of each TA.
| Examples |
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→ Dispute resolution mechanisms Greenland: According to Article 19 of the 2009 Act on Greenland Self-Government, in case of disagreement between the Danish and Greenlandic governments concerning the “’self-government authorities’ responsibility in relation to the central authorities”, the two parties may decide to find a solution within a special Board comprising the following: two members nominated by the Danish government, two members appointed by the Greenlandic government, and three judges of the Danish Supreme Court nominated by the president of the Court (Ackrén 2022). If the four members nominated by the two governments reach an agreement, the dispute is settled. If they do not agree, the question is decided by the judges. The Board may decide to suspend the application of the disputed regulation or measure until it can deliver a decision. Basque Country: The Bilateral Commission for cooperation between the administration of the state and the administration of the Basque Country includes an equal number of representatives from the central and autonomous governments. This joint body is tasked with solving potential conflicts of competence to avoid these matters being brought before the Constitutional Court. However, if the bilateral commission is not able to solve the conflict, the state or the Basque Country may lodge a complaint before the Court. The bilateral commission was instrumental in reaching agreement on various disputed laws of the Basque Country such as Law 5/2015 on Basque civil law, and Law 2/2016 on local institutions of the Basque Country (Romero Caro and Escajedo San-Epifanio 2020). |
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→ Consultation, co-decision and veto mechanisms Aland: The Aland Delegation is a consultative body to both the Finnish and Alandic governments and judiciary. The state and the TA have equal representation in this joint expert body, which consists of four members (Arts. 5 and 55 of the 1991 Autonomy Act). The Aland Delegation was established under the autonomy system of 1922, and initially had a limited role. However, its responsibilities have expanded considerably over the years. Today it plays a crucial role in the legislative process, as it supervises the legislation stemming from the Alandic parliament and issues an opinion to the Ministry of Justice before the respective draft legislation is presented to the Finnish president (Art 19 of the 1991 Autonomy Act). All draft laws of Aland are first examined by the Aland Delegation in order to reduce the risk of a presidential veto. In the case of Aland, veto powers “are part of a system of checks and balances that foster constructive dialogue and arbitration” (Spiliopoulou Åkermark et al. 2019, 23). The Finnish president has an absolute veto over the legislation of the Aland parliament. After receiving the opinion of the Finnish Supreme Court, the president can annul an Alandic law (or a part of it) if it violates exclusive state competences or if it risks the security of the state. The Alandic authorities do not have a veto right over the Finnish parliament’s legislation, which may interfere in the exclusive legislative powers of the TA. The constitutionality of the laws of the Finnish parliament is checked ex ante by the Constitutional Law Committee of the Finnish parliament. This Committee reviews the draft laws of the Finnish parliament not only in relation to the Constitution, but also in relation to the 1991 Autonomy Act – as laws of the Finnish parliament must not go beyond the legislative authority of the state detailed by Article 27 of the Autonomy Act. The Finnish president uses the veto power in very few cases per year, and when this happens, it is usually a partial veto which annuls only some provisions of an Alandic law. This means that most of the Alandic legislation is adopted, and the decision-making process is not blocked. The Finnish parliament cannot veto laws of the Alandic parliament. The laws of the two parliaments are on the same hierarchical level, and if administrative authorities (and courts) of Aland need clarifications on what law should apply in a specific case in Aland, they may ask for an opinion of the Supreme Court (Suksi 2013, 74-80). |
4.2. Mechanisms for cooperation and coordination
Bilateral mechanisms for cooperation and coordination serve as forums of dialogue between the central authorities and the TA addressing a wide range of issues of common interest. Mechanisms of coordination also include special procedures regarding the adoption or implementation of state legislation that will affect the TA. These special procedures give the authorities of the TA time to either develop a response to the state’s proposed new regulations, or to adapt the existing laws of the TA to conform with new state regulations. Both cooperation and coordination are facilitated by ensuring state representation at the TA level, and vice versa.
| Examples |
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→ Cooperation and coordination mechanisms South Tyrol: Various enactment decrees have established several joint bodies at the provincial level since the adoption of the 1972 Autonomy Statute. These joint bodies deal with specific issues such as legal terminology, urban planning, and the management of administrative staff (Palermo 2008). The joint commission on legal terminology is composed of six experts: three belong to the German linguistic group and are appointed by the provincial parliament, and another three belong to the Italian linguistic group that are appointed by the government commissioner (i.e., the representative of the Italian government in the autonomous province of South Tyrol). The main task of this joint commission is to determine and regularly update the legal, administrative and technical Italian-German terminology in use by all public offices functioning in the TA. Another similar joint committee between the provincial authorities and the office of the government commissioner determines the personnel development plan for the state administration in the TA. Basque Country: Several mechanisms of bilateral cooperation have emerged in the Basque Country since 1979. The Joint Commission tasked with overseeing and coordinating the transfer of powers from the state to the Basque country in accordance with the 1979 Autonomy Statute was the first to be established. Other special bilateral commissions focus on various competences of the Basque Country. For example, the Joint Commission of the Economic Agreement deals with financial matters, and the Security Council is responsible for coordinating policing (Romero Caro and Escajedo San-Epifanio 2020). |
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→ Special procedures for adoption or implementation of state legislation Greenland: According to Arts. 17 and 18 of the 2009 the 2009 Act on Greenland Self-Government, legal and administrative measures that have relevance for Greenland must be communicated by the central government to the autonomous authorities before their adoption. Then, the Greenlandic authorities must submit their response to the proposed measures within a time limit agreed upon with the central authorities. South Tyrol: A 1992 enactment decree for the implementation of the 1972 Autonomy Statute regulates the relationship between state laws and South Tyrolean laws, as well as the state’s function of direction and coordination. According to Article 2 of Legislative Decree no. 266/1992, the South Tyrolean parliament has six months to bring the existing provincial regulations in line with newly adopted state framework legislation. If the six-month period passes and the South Tyrolean authorities fail to take the necessary measures, the central government has the right to challenge these provincial regulations before the Constitutional Court. However, according to Article 3 of the Legislative Decree no. 266/1992, before the state adopts any measure in the exercise of its function of direction and coordination, central authorities must consult provincial authorities about the content of the respective measure. South Tyrolean authorities must submit their comments to the central authorities within 20 days. These special procedures highlight the bilateral character of the relationship between the state and the TA, and the cooperative dimension of the state’s function of direction and coordination (Woelk 2008, 133). |
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→ Representation of the TA at the central level and state representation in the TA Aland: To ensure the representation of the small TA in the national parliament, the entirety of Aland forms an electoral constituency. The Alandic representative in the Finnish parliament is a member of the Constitutional Law Committee which reviews the constitutionality of Finnish laws. He/she meets regularly with the Alandic government and ensures a permanent contact between the state and Alandic authorities. The Finnish government is represented in Aland by a governor appointed by the Finnish president in agreement with the speaker of the Alandic parliament. In case of disagreement, the president appoints the governor from among five candidates nominated by the Alandic parliament (Article 52 of the 1991 Autonomy Act). “It is important that the governor has the necessary qualifications and knowledge about Aland and its autonomy system. Therefore, the appointed governors usually have working experience on Alandic questions and/or personal relations with the region or are Alanders themselves” (Spiliopoulou Åkermark et al. 2019, 16). The governor is the head of the state administration on Aland. He/she has the right to attend the sessions of the Alandic parliament and to express his/her opinions on matters regarding the relations between the TA and the state. The governor delivers the proposals and statements of the Finnish president to the Alandic parliament and attends to matters of state security in the TA. Basque Country: Out of the 15 Basque senators in the Spanish parliament, 12 are directly elected and 3 are appointed by the Basque parliament. According to Article 69 (5) of the Spanish Constitution, each autonomous region of the country appoints one senator, and then appoints another senator for every million inhabitants in their respective territories. Both the Basque senators and the representatives of the central government participate in the General Commission of the Autonomous Communities, a forum for debate and communication between the state and the autonomous regions. The central government is represented in the Basque Country by a “government delegate” (Article 154 of the Spanish Constitution and Article 23 of the 1979 Autonomy Statute). Usually, the Spanish government appoints as the government delegate a local politician from the Basque Country that represents the party in power in Madrid. Because of this, government delegates generally are familiar with the TA and are experienced with Basque issues. The government delegate directs and coordinates the state administration in the TA and maintains the necessary collaboration and coordination between the state and autonomous authorities. He/she notifies local institutions and citizens about the government activities in the TA and informs the central government about the operation of state public services in the TA. The government delegate must also ensure compliance with the constitutional provisions regarding state powers and the correct application of state laws. Finally, it is the responsibility of the government delegate to protect the free exercise of rights and freedoms, and to monitor state security matters in the TA. |
5. Conclusions
Territorial autonomy is used by numerous states as a tool for territorial and cultural diversity governance. Factors such as democracy, the rule of law, competing nation-building processes, and international engagement shape the scope, structures, and functions of TAs.
The establishment or reform of a TA arrangement requires hard-negotiated compromises between political elites of majority and minority groups at both state and sub-state levels. International actors can play a significant role in supporting the political process through mediation, technical assistance, and financial aid. Successful political processes involve negotiations in good faith, pragmatic solutions, and a shared understanding of the scope and functions of an inclusive self-government arrangement that guarantees the rights of all communities within the TA.
A well-functioning TA requires effective legal entrenchment, a clear division of powers, and legal protection by an independent judiciary. The entrenchment of TAs varies from strong constitutional provisions to weaker legislative frameworks. Flexibility within the legal structures is necessary to accommodate updates and adjustments. The division of competences between the state and the TA must strike a balance between clarity and flexibility to foster cooperation. The apex courts ensure the proper functioning of the autonomy and protect it from unwarranted interference from the central authorities.
Fully-fledged TAs require institutions and mechanisms for conflict resolution, consultation, cooperation, and coordination. Mechanisms for conflict resolution often involve joint bodies comprising representatives from the state and the TA. Consultation and co-decision mechanisms, including expert bodies and veto powers, enable meaningful participation. Mechanisms for cooperation and coordination serve as platforms for dialogue regarding issues of common interest between the state and the TA.
In conclusion, the success of a TA arrangement relies on the commitment of political elites, effective legal frameworks, and robust institutional mechanisms. Political negotiations, a shared vision of inclusive autonomy, clear legal entrenchment, a balanced division of powers, and the presence of institutions for conflict resolution, consultation, cooperation, and coordination are vital for the well-functioning of a TA.
List of abbreviations
TA – territorial autonomy
Note: This working paper is based on the findings of the research project “Functioning Autonomy as a Strategy for Inclusive Governance. Good Practice Examples from the OSCE Areas” commissioned by the OSCE High Commissioner on National Minorities.
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