By design in the creation of countries consideration is given to the notion
of decentralization of authority to territorial subunits. This decentralization may apply to the realms
of political or judicial authority or division of powers or any combination. Thus,
it is possible to distinguish among diverse degrees of decentralization of such
power. From the maximum centralization of authorities and power in national
bodies, up to the absolute decentralization of them to subnational entities allowing
them to create and enforce legal norms within that jurisdiction.
In other words, the spatial applicability of the law is not one. Therefore,
depending on the territory, there are several creators and enforcers of the
legal rules. Within a country, there are national, local, provincial,
departmental, regional, autonomic, and eventually, county bodies with a
specific and exclusive competencies which vary from state to state. These
competencies might be classified along normative, administrative or
jurisdictional lines, valid in the whole territory for certain topics (when
national) or just in part of the territory for other topics.
From a lower-higher perspective of decentralization, states can be
classified as central or unitary, regional or composed by autonomies, federal,
and confederations.
Since the federal state coexists with national, local, state or province,
and even county authorities, it represents one of the most defined grades of
decentralization of juridical-political power. This coexistence implies that
all of the territorial units are elected by the community, autonomous from each
other, and entitled to absolutely function within their own jurisdiction. It is
about two different delegated branches of government with equal level, on one
hand the federal level and, on the other, the local states level. In the first
one, there are whole-territory valid rules issued and applied by federal bodies
and made for all the people living there. On the other hand, there are local
norms created by local bodies always taking into account the federal constitution,
which are valid only in some part of the national territory and with a narrow
scope of validity.
Power is not just concentrated at the center, but also in the provinces or
local states. The territorial subunits have political, normative,
administrative and jurisdictional authorities within their own jurisdiction.
The distribution or decentralization of political power is consistent with centrifugal
theory. This feature does not imply that the State should not be considered as
a whole national federal State. Even taking into account the national or
federal Constitution, as well as national or federal authorities (legislative,
administrative and jurisdictional), there are also local states Constitutions
and authorities (legislative, administrative and jurisdictional) which the
local states Constitutions and authorities nevertheless have to adjust to the
federal Constitution which sets out the principles and fundamentals of the
federal or national State. These features appear in most federal States.
However, there might be some authorities reserved exclusively to the federal
authorities like, for instance, the administration of justice.
Some examples of federal States are Germany, Argentina, Australia, Brazil,
the United States of America, Mexico, Nigeria, and Venezuela.
On the other hand, the Regional or Autonomic State is a form of
organization of a national State, by which certain public, executive, as well
as normative functions correspond to “the depending territorial bodies”. This
way, some nations as Belgium, Spain, Portugal, and Italy, have developed
regions with constitutionally guaranteed self-government which, from a narrow
point of view, does not match the rest of the local States of a federal State,
or the territorial subunits of a unitary State.
Through the national Constitution, there are some central authorities in
this State, in addition to some secondary authorities. Nevertheless, without
implying that this can be considered as the authority to design their own
Constitution, there are some other regional, territorial or provincial
authorities that also have certain faculties and legislative autonomy. In these
cases there is not a representative chamber with the express aim to protect territorial
interests nor may these regional authorities participate in the constitutional
amendment process, nor have any recognized attributes in the jurisdictional
ground.
Due to the monopolization of power as well as the exercise of faculties
that characterize some national
authorities, within the so-called central or unitary State, political power is
completely centralized. Every person is subject to the same and only central or
national authorities and thus, they are subject to one constitutional regime
and one set of national laws.
However, some degree of decentralization
in favor of the local, regional, departmental or county collectivities is not entirely
incompatible with the unitary State. Nevertheless, due to the fact that it is
the central authority that concedes and supervises the exercise of such power,
full autonomy is never reached. Since a national authority accumulates public
power, it can be said that it attends to a centripetal theory. Bolivia,
Colombia, Ecuador, and France are some examples of unitary States.
There is yet another model of organization of the State: the confederated
State which is represented by Switzerland. In these cases, the preservation of
freedom, sovereignty and independence of the confederated entities before the
national Authority strengthens the level of autonomy. Also, the entities are
equal among each other and, therefore, they have the right to separate from the
confederated State at any moment.
Furthermore, the confederation of two or more national independent States
is aimed to satisfy economic demands from their components. It is regulated basically
by international law thorough treaties or agreements like in the paradigmatic
case of the European Union. It is based on interstate cooperation and
coordination principles, as well as on the integration of communitarian or union
and states body of laws. Besides the mainly economic and commercial topics,
some other area in which the confederation may take hold are the ones related
to the infrastructure and exercise of communication, as well as cultural,
scientific and technological assistance and sanitary integration, among others.
Even though there are communitarian and national bodies with diversify
competences, the communitarian bodies can issue rules with direct efficacy
within the internal national States body of laws. In some other cases, an adoption
of some internal acts is required.
In other words, what distinguishes a federal State from a central or
autonomic one is the degree of decentralization. And between those and the
international association of States, the difference is that the first ones find
their legal fundamentals in the national body of laws, while the confederation
of States is based on international law.
Since the authorities to be elected, as well as the regulatory legal
framework, depend on the model of the State, it is necessary to take into
account the diverse forms of organization that can be adopted. Within a federal State, there
exist federal (executive body representative or president and legislative body,
normally with an upper and a lower chamber), local, and state or provincial
authorities. These authorities will be declared through electoral processes
ruled, in each case, by different laws appropriate to that authority. The
subunits will also contain the institutions in charge of the preparation of the
election, as well as some others in charge of resolving electoral disputes both,
local and federal, but always with reference to the principles established in
the federal Constitution. However, this is no obstacle to necessarily prevent a
central body from organizing the elections and a different one, also national,
solving electoral process disputes that might arise from the local, federal,
and even at the county level.
Central authorities in a unitary State design the legal framework for
elections of the national and, if such is the case, departmental and local or
provincial authorities. Although there can be some local authorities
responsible for the administration of the local electoral process, in a
regional or autonomic State, the standards to which the institutions as well as
the national and local electoral processes should stick to is established by
the national authorities.
