features of konstitutsionno-legal regulation of the territorial device in the European countries

The analysis of konstitutsionno-legal regulation of the territorial organisation of the public power in the United Kingdom the Great Britain and Northern Ireland is expedient for beginning with definition of the basic tendencies of development of the territorial device as element of the form of the state, observed today in the European countries.

Such approach, on the one hand, allows to correlate national specificity and the general laws inherent in the constitutional norms, defining the state system form, and with another - to avoid of some the errors shown within the limits of rather-legal research, in particular substitution of concepts or excessive generalisations.

Owing to that the constitutional registration of the form territorialnopoliticheskogo devices of the United Kingdom has occurred as a result of reform of the territorial organisation of the public power begun in 1997 and proceeding and today, for the present research interest is represented by those European states in which in the recent past also there were serious transformations of a state system. Thus it is important to consider and that fact, that changes in konstitutsionno-legal regulation of the territorial organisation of the public power in the United Kingdom have been caused by necessity of the permission of the ethnic question caused first of all by presence as a part of the considered state of the Celtic regions. Accordingly, the special attention is deserved also by a problem of settlement of international relations within the limits of this or that form of a state system, and also in the course of its transformation.

2.1.2. Approaches to the constitutional reform of the territorial device in the European states

Throughout the research XX-th century on territorially-political system states had time to "bury" at first federal idea, having declared inevitable movement to unitarizmu (G.Laski) [93] and then and to revive it, declaring about the beginning of "federalistic revolution» (D.Elazar) [94]. Active loan by the unitary states of the constitutional norms and political an expert, inherent in federations becomes the basic distinctive line of a new stage in development territorially-political system. The constitutional registration of such state as federation can become result of such loans or serious transformation of the territorial organisation of the public power within the limits of the unitary state, or. Differently, as a result of victorious procession of federalistic revolution the unitary states address to political or administrative decentralisation [95 [96] or start process federalizatsii, directed on creation and the constitutional registration of federation.

Here, however, it is necessary to make one terminological specification. Frequently in the domestic literature all three changes specified above a way territorially-political system are generalised by the term "regionalizatsija" which in a general sense is understood «as process of redistribution imperious kompetentsy, transfers of function from national on regional level; occurrence and development new institutsionalnyh the forms answering to a new role of regions in decision-making process on national and nadnatsionalnom levels» 101. A similar position it is met and at other representatives of a political science.

So, T. Sardarjan notices, that «under regionalizatsiej it is possible to understand the process directed on creation of interconnected political-economical system, providing the special status of regional formations in political system of the state, participation of regions in government realisation, their relative economic and fiscal independence in the conditions of the unitary state» [97].

In our opinion, the term "regionalizatsija" has no own legal value and can be used exclusively as a synonym of administrative or political decentralisation, and also federalizatsii. As acknowledgement to give legal treatment regionalizatsii attempt can serve in A.V.Orehovich's dissertational research to it, for example, according to which position «regionalizatsija is a process of redistribution of resources of the public power (including imperious powers) between various levels and the centres of the public power in two directions: from the state - to its internal formations (to autonomies, subjects of federation), and also from the state - to transboundary structures and the international centres of the public power (to trans-European regions, the international organisations, transnational corporations)» [98]. The first part of a resulted definition serves as the excellent proof of our hypothesis that regionalizatsija cannot be recognised as a special konstitutsionno-legal phenomenon, excellent depending on a context either from decentralisation, or from federalizatsii as ways of reform of the territorial organisation of the public power.

Besides, it is necessary to mention, that the term "regionalizatsija" is used and in the researches devoted to the separate countries, in which frameworks it tozhdestven political decentralisation. In this context interest is represented by I.A.Rakitsky's researches rather territorially - a political system of Denmark in which regionalizatsiej process of political autonomism concerning Faeroes and Greenland [99] is called.

The term use "regionalizatsija" as a synonym of various forms of decentralisation of the public power meets and in a foreign konstitutsionno-legal science. So, French researcher Z.Vandamm, allocates, on the one hand, functional regionalizatsiju, caused social and business factors, and with another - regionalizatsiju in a situation when the question on power redistribution arises in connection with necessity of the account of ethnic, cultural, linguistic or historical features of this or that part of territory of the state [100]. In the first case speech, accordingly, will go about administrative, and in the second - about political decentralisation. Here, however, we will make one specification: in a number of national scientific traditions the term

"Decentralisation" can be replaced with other terms with the identical maintenance. So, in the Great Britain decentralisation is designated by the term devoljutsija owing to what it is possible to speak about administrative and legislative devoljutsii [101]. The identification regionalizatsii and federalizatsii meets, first of all, at the description of changes territorially-political system Belgium [102].

Among the European countries, and the subject of the present research is limited exclusively by them, for the last half a century essential changes of konstitutsionno-legal regulation of the territorial organisation of the public power took place in Italy, Spain, France, Belgium and the Great Britain [103]. If to speak about the reasons which have induced the governments of these states to become on a way of reform it is necessary to address to A.Duchaseka's asserting opinion, that the states begin movement from unitarizma in cases: 1) necessities of the answer to local pressure and political wisdom resulting from here to concede it; 2) requirements of the central authorities in bolshej the administrative and political flexibility reached by decentralisation; 3) ideological or pragmatical adherence of the central authorities to pluralism and its expressions within the limits of local government; 4) imitations of some successful examples from foreign experience [104].

In all countries listed above the given reasons in various combinations have led to change of the constitutional certificates concerning regulation of questions of the territorial organisation of the public power. Besides, to the offered A.Duchasekom the list of the reasons of decentralisation with reference to the European countries should add and the factor of the European integration which opens the right of participation in the European affairs for territorial units, passing level of the national governments (the project so-called « Europe of regions ») [105], including and within the limits of the Committee of regions created in 1994. As fairly marks S.I.Kodaneva, the policy of stimulation of increase of independence of regions of member states, financial support of regional interests, and also introductions of the multilevel management allowing regions to operate under their own initiative, both within the limits of member state, and behind its limits is peculiar to the European Union«, entering the Intraeuropean market, directly to participate in functioning of Committee of regions and directly to work with the Commission »[106].

However, in our opinion, it is obviously possible to assert, that the role of the factor of the European integration in decentralisation processes is a little exaggerated. Such state of affairs speaks first of all aspiration of researchers to search of certain general reasons of a certain direction of evolution of territorially-political system European states the present stage (we will recollect the concept of "federalistic revolution» D.Elazara). Really, many EU countries worry the last some decades serious reforms of the territorial organisation of the public power, but each case, in our opinion, is represented unique, and creation of certain general explanatory models probably only concerning two-three countries, for example, in case of Spain and the Great Britain that will be proved more low.

Let's address now directly to ways of transformation territorially-political system. Federalizatsiju among the European states as it was marked above, as reform territorialnopoliticheskogo devices were selected only by Belgium. However, before passing to instructions of the distinctive lines doing unique Belgian model territorially-political system, we will make a number of terminological specifications.

In a domestic science round seeming at first sight obvious the term "federalizatsija" there is a certain discussion. We will result some bright statements of its participants. So, V.E.Chirkin gives rather wide treatment of the considered term, asserting, that federalizatsiju («and the term close to it federirovanie») it is possible to define as «process of creation of a federative state, decentralisation of federation by redistribution of imperious powers, at last, as search of an expedient combination of centralism and decentralisation» [107].

Some other approach adheres mentioned above to J.V.Kim, distinguishing federalizatsiju and federirovanie in dependence how the uniform difficult state - or by association of the independent states is formed, or by power decentralisation in the unitary state. In particular, the quoted researcher notices, that at federalizatsii «there is an integration of the states, gradual desuverenizatsija and“ deetatizatsija "(" privatisation ”) member states and strengthening of the allied power». At the same time in process federirovanija «segmentation goes deep there is no time uniform state-legal space», and «amplifying decentralisation and washing out of a vertical of the government are accompanied accruing etatizatsiej (finding political, state subektnosti) ethnoses, the administrative and territorial units of the unitary state becoming the centres competing to the state of decision-making» [108].

It is obviously possible to assert, that resulted above a definition federalizatsii deserve the certain criticism. Thus we will notice, that last first of all concerns exclusively the approach to definition federalizatsii as to logic operation. Differently, offered critical remarks do not mention the maintenance resulted above definitions, thereby not putting under doubts the konstitutsionno-legal phenomena noted in them.

In the first of the specified definitions the principle of definition as the logic operation which essence consists in «giving of exact sense to language expression which allows when it is required, in our opinion, is broken, to allocate or specify value of this expression» [109]. The analysis of treatment of the term "federalizatsija", the offered V.E.Chirkinym, shows, that in it just there is no «exact sense», the term designates three various constitutional phenomena - process of creation of federation, process of redistribution of the power in a federative state, and also a certain ideal type of the federal device at which the best combination of decentralisation and centralisation is reached. The logic error is contained also by approach JU.V.

Kima. Here logic operation of definition is substituted for typology of the federative states as which basis the way of their formation [110] acts.

Taking into account the above-stated critical remarks federalizatsiju, in our opinion, it is necessary to define as process of creation of a federative state, without dependence from those forms in which it passes - by association of sovereign political formations or decentralisation in the unitary state. Other phenomena, in particular power redistribution inside already existing federal system, have other nature [111] and working out of the separate conceptual device [112] demand.

Let's return, however, to a case of Belgium. Here the Constitution of the 1993 which have finished long process of transformations to areas of the territorial organisation of the public power, declares Belgium «a federative state consisting of communities and regions» (item 1.) [113]. Thus, as the visible researcher of the Belgian political system Z.Ornombekov marks, «modern Belgium is the unique federation consisting of six subjects imposed against each other of two types» [114]. It is a question of a combination of exterritorialities and territorialnosti within the limits of the Belgian federalism. Owing to it the western authors suggest to call Belgium ex-territorial federation [115], and domestic researchers - krossterritorialnoj federation [116] though as a whole under existing approaches to classification of federative states Belgium, certainly, is the special case which studying is impossible out of history flamandsko-vallonskogo the conflict and constitutional transformations accompanying it.

Unlike Belgium all other listed above the state as a way of reform of the territorial organisation of the public power have selected administrative or political decentralisation. Quoted above I.M.Busygin notices: «each of the mentioned West European countries [France, Spain, Italy and the Great Britain. - N.M.] uses own approaches, builds own model

Regionalizatsii/decentralization, and the comparative analysis of these models shows, that: (1) any of the mentioned states, making out new relations between the centre and regions, does not go on a way federalizatsii, that is federative state construction is not officially declared purpose; (2) all models regionalizatsii are to a greater or lesser extent asymmetric, thus, the state is not aimed at forming of the uniform

Algorithm of mutual relation between the national centre and all


Regions »[117].

The statement resulted above is rather fair, as in it those two general consequences which result from aspiration of the European states to decentralisation of the public power are really reflected. However it requires a number of specifications from the point of view of a constitutional law science. First, it is necessary to designate accurate (formalizable) distinction between decentralisation kinds (difference from federalizatsii follows from the analysis set forth above), secondly, to state a konstitutsionno-legal estimation to an asymmetry phenomenon in a state system as to the legal phenomenon, instead of display of an actual inequality of parts forming the difficult state (speech about it will go in section 2.2 of the present chapter).

It is necessary to understand such form of reform as political decentralisation territorially-political system the states at which the certain part of territory is allocated with the right to publish certificates of own legislation. Thus defining value gets the fact of presence of such right, instead of volume of delegated powers in legislative sphere. Result of realisation of political decentralisation is creation of a political autonomy. The fullest definition of the given term meets at N.I. Lazarevsky according to which the political autonomy «is such system of the local government when on the questions specified in the law the rights not only self-management, but also the legislation, with that however are given to local bodies, that the volume of these rights is entirely defined tsentralnoju by the power which at the same time remains and polnoju them rasporjaditelnitseju in the sense that this or that expansion or restriction of these rights of local bodies, and also the control depends on it one over their realisation» [118] further. To add this thought it is possible only F.F.Kokoshkina's who has noticed statement, that considered «the territorial unions possess partial political independence and occupy intermediate position between self-coping provinces and not sovereign to the states» [119].

At the same time at administrative decentralisation there is or delegation of powers exclusively in the field of management therefore there is an administrative autonomy, or a change of the organisation of the central executive power at which the separate body responsible for management by a certain part of territory [120] is created. Between political and administrative decentralisation, accordingly, it is necessary to consider as the main distinction transfer of the right to own legislation.

The analysis of the constitutional norms of some the European countries allows to assert, that as a way of reform of the territorial constitution Spain, the United Kingdom Great Britain and Northern Ireland (further - the Great Britain) and Italy have selected political decentralisation, and France - administrative. However all four national models are united by one circumstance - autonomism process has mentioned all territory making them. At the same time France has not refused model of the unitary state. Item 72 of the Constitution of France of 1958 includes regions in the general list of administrative-territorial formations [121]. However in Spain, Italy and the Great Britain there was a full revision territorially-political system within the limits of all state that was expressed in occurrence of three levels of the territorial organisation of the public power - national, regional and local. Thus all regions have acquired the right to own legislation that allows to consider them as political autonomies.

It is necessary to add comparison besides, resulted above with specification from the point of view of the purpose of reform of the territorial constitution. In France reforms were carried out for improvement of quality of the government. Privnesenie in the mechanism of decentralisation of the political moment (in particular, legislative fastening of existence

The Corsican people) the Constitutional council of France recognised

Unconstitutional (the Decision № 91-290 DC from May, 9th, 1991 see).

At the same time in Spain and the Great Britain reform pursued one aim - prevention of separatism and preservation of the state unity. Owing to it territorial formations resulting its realisation were created in borders of compact residing of this or that национальности126 [122]. The case of Italy in this context costs independently. Here a problem of decentralisation of management for overcoming of the strong centralisation peculiar to a mode of B.Mussolini, authors of the Constitution of 1947 as the known British researcher M.Kiting marks, have solved by loan of model Estado Integral fixed in the Constitution of Spain of 1931 and reflecting attempt of the government of the Second republic to weaken national contradictions in this country [123]. Owing to this fact many positions of the Constitution of Italy of 1947 about are territorially-political system identical to norms of the Constitution of Spain 1978 Which authors also addressed to model, konstitutsionno issued in 1931.

Though in the literature, in particular among the Spanish authors, it is possible to meet and opposite opinion according to which «principles of the Italian legislation are the successful decision of a regional question in the states belonging to continental system of the right» [124]. However, despite this disagreement, identical approaches under the form to the organisation of the territorial constitution in Spain and Italy radically differed on the purpose of konstitutsionno-legal regulation territorially-political system these states.

As the basic distinction of the Spanish and Italian models pays attention of T.A.Vasileva to the ethnic factor: « Features of Italy and Spain have given accurately expressed national specificity to similar reforms, have predetermined originality of legislative decisions », that, accordingly,« it is possible to track if to consider, how the ethnic factor during state system reform »[125] was considered in these countries. In this context it is important to specify and that fact, that regions in Italy as marks mentioned above I.M.Busygin, represent« artificial designs »which« have no historical roots, and their borders often do not coincide with borders of regional communities »[126]. The exception of this rule is made only by three areas - Valle D'Aosta, Trentino-Alto-Adidzhe and Friuli Venice Dzhulija, and also island areas - Sicily and Sardinia [127]. According to item 116 of the Constitution of Italy 1947 these areas« have special forms and autonomy conditions according to the special statutes established by the constitutional laws »[128].

Owing to specified above arguments within the limits of the present research we do not include the constitutional model of the territorial organisation of the public power in Italy in our analysis of the territorial device of those European states (Spain and the Great Britain) where political autonomism in scales of all state has been caused by the ethnic factor. In Italy, as is known, changes in konstitutsionno-legal regulation of the territorial organisation of the public power are caused first of all by the social and economic reasons. This circumstance makes essential impact on the maintenance of the constitutional norms defining the status of components. Many questions important for the states in which basis the ethnic principle of formation of territorial units lays, here fade into the background and do not render practically any influence on a course of reform of the territorial device. In case of Italy, besides, it is impossible to speak and about historically caused constitutional identity of the territorial units making it, following of features of formation of uniform statehood. All it, in our opinion, proves a position according to which the Italian model of the territorial organisation of the public power cannot be considered in the same row with Spanish or British.

Thus, for today among the European countries carried out or continuing serious reforms of the territorial device, we see two states - Spain and the Great Britain which have selected political autonomism in scales of all territory of the state for the ethnic question permission. At the same time Belgium for preservation of uniform statehood in the conditions of ethnic mnogosostavnosti societies became a federative state with rather unique system of federal relations which are distinct from traditional models of federalism. Owing to it the constitutional registration Belgian the federation cannot be considered as the first step to representation revival about federation as an effective remedy of the permission of international contradictions.

In difference from Spain, the Great Britain or Belgium realisation of the constitutional reforms in France and Italy has been caused first of all by socio-economic factors, and also necessity of improvement of system of the government which, on the one hand, should provide the most effective realisation of functions of the modern state, and with another - to be the European integration most adapted for existing model.


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A source: Molchakov Nikita Jurevich. THE CONCEPT OF THE REGIONALISTSKY STATE AND ITS REALIZATION IN THE UNITED KINGDOM THE GREAT BRITAIN And NORTHERN Ireland. The dissertation on competition of a scientific degree of the candidate of jurisprudence. Moscow - 2018. 2018

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