Legal basis for the territorial organization of public authority in Argentina

Komlev Evgeny ORCID: 0000-0001-7246-8014 PhD in Law Deputy Dean for research, Law Institute, Peoples’ Friendship University of Russia (RUDN University); Associate professor at the Department of Municipal law, Peoples’ Friendship University of Russia (RUDN University); Associate professor at the School of Public Law, Higher School of Economics (HSE University) 117198, Russia, Moscow, Miklukho-Maklaya str., 6 komleve@mail.ru Other publications by this author

Defining the territorial foundations of the organization of public power is one of the most important, and at the same time the most difficult tasks of modern states. For federal and quasi-federal states, this issue acquires additional relevance in the context of the peculiarities of the relationship between the central government and the authorities of the constituent parts of the state ^{[2, 14]}. The effectiveness of state and municipal management largely depends on the regulation of this, related to the territorial structure. At the same time, the solution of this issue is inevitably accompanied by objective difficulties of a political, economic, social and other nature, as well as the need to take into account historical and other local traditions. In particular, in the territorial organization of municipal government, the cornerstone is the problem of achieving a balance between the principles of subsidiarity and economic efficiency ^{[4, 5]}. Similar problems arise in most modern states ^{[10, 15]}.

In Russia, the search for such a balance is clearly evidenced by the relevant changes in legislation on local self-government and the emerging practice of municipal and territorial organization. In recent years, the two-level model of municipal-territorial structure with the mandatory presence of settlements has gradually given way to a single-level one. This is simultaneously accompanied by the introduction of new types of municipalities, such as the municipal district (which, however, obviously does not solve all the existing problems of municipal territorial construction) ^[1], amendments to the Constitution of the Russian Federation with the exclusion of references to settlements from it. Beyond the purely municipal-territorial structure, changes are also noticeable, related, for example, to the introduction of a new type of territorial entities into the Russian legal order – federal territories.  

These trends clearly indicate the ongoing search for the optimal model of the public-territorial structure. Within the framework of domestic science, this actualizes the issue of researching relevant foreign experience. In this sense, the experience of Argentina, a federal State with a number of features in this area, is of interest.

The Constitution of Argentina established the federal nature of the State, indicating the existence of mandatory territorial entities – subjects of the federation. These are 23 provinces and the Autonomous City of Buenos Aires, which historically had a special status ^[9]. The Constitution allows for the formation of new provinces without listing the existing ones in the text of the basic law.

It is noteworthy that the Argentine Constitution does not mention the municipal-territorial structure, indicating, however, that the provinces must ensure the functioning of the municipal regime (article 5) and, within the framework of provincial constitutions, must ensure municipal autonomy (article 123). This implies the formation of municipalities in the subjects of the federation. Due to the absence of a law on local self-government at the federal level, the relevant issues are fully within the competence of the provinces and the Autonomous City of Buenos Aires. 

Thus, the Constitution of Argentina includes federal subjects (provinces and the Autonomous City of Buenos Aires) and municipalities as mandatory territorial units.

The types of municipalities are determined by the subjects of the federation independently. In the Autonomous City of Buenos Aires, these are communes, which, according to the Constitution of the Autonomous City of Buenos Aires, are units of political and administrative administration with territorial jurisdiction, the legal status of which is specified by the Organic Law of Buenos Aires dated 09/01/2005 No. 1.777 "On Communes".

In most provinces, municipalities are municipalities. According to the Argentine Constitution, the provinces must not only ensure the normative consolidation of municipal autonomy, but also regulate its scope in an institutional, political, administrative, economic and financial manner. The issue of territorial structure in the context under consideration seems to be one of the main ones.

Given the lack of uniform federal regulation regarding the institution of local government, the provinces have a very wide degree of discretion in this sense. In addition, such discretion in relation to local government in general and the territorial organization of municipal government in particular is evidenced by some features of the model of constitutional control in Argentina; the North American model of norm control is used here ^[11], characterized in relation to Argentina by a fairly high degree of decentralization and deconcentration ^[6], the actual absence of abstract control of norm control ^[7], the connectedness (as a general rule) of only the parties to the dispute by the court's decision on the unconstitutionality of the norms ^[8].  

The above indicates that the provinces have great powers and responsibility for the legal regulation of the municipal-territorial structure. The politicization of municipal power should be considered as a deterrent against the abuse of such broad discretion: the political nature of municipal autonomy is emphasized in the national and most provincial constitutions; in addition, the obligation to exercise active suffrage contributes to the involvement of the population in the political life of the country and a certain increase in voter control over the activities of municipal and provincial authorities.

It is also important to mention the peculiarities of the historical development of legislation on local self-government. In particular, the norms on the political nature of municipal autonomy were initially enshrined in the legislation of a number of provinces, confirmed by the Supreme Court of Argentina and only then reflected in the national Constitution ^[12].

Speaking about the approaches of the provinces to determining the territorial foundations of municipal government, attention is drawn to the establishment in most provinces of criteria for assigning the relevant territory. As a rule, we are talking about the number of inhabitants of the corresponding settlements: on average from five hundred to two thousand people, depending on the province. The province of Santa Fe stands out in this sense, having established in the Constitution that a municipality can be considered a settlement with a population of more than ten thousand people.    

Some provinces set additional criteria for granting a certain territory the status of a municipality. Thus, the Organic Law of the province of Neuquen "On municipal regime", in addition to the number of inhabitants, establishes a requirement for the maximum permissible size of the territory. The requirements for the size of the territory are also fixed in the legislation of the province of Tucuman, which are supplemented by requirements for a minimum number of private properties.

It is also worth noting that different provinces have different approaches to granting the territory the status of a municipality in terms of classifying it as urban or rural settlements. In some provinces, only urban settlements are recognized as municipalities (as, for example, in the previously mentioned province of Santa Fe), in other municipalities may include the territories of rural settlements. A mixed model is also used ^[13].  In addition, in almost all provinces, the categorization of municipalities is applied (also mainly by the number of inhabitants). Depending on the categorization, the legal status of municipalities differs (in terms of institutional autonomy, competence, etc.).

In territories that cannot be formed into municipalities, the population also participates in the implementation of local self-government. Such territories in individual provinces are referred to as communes or simply settlements in which their (representative, as a rule) authorities function. In particular, in the province of Rio Negro, such bodies are called development commissions (Spanish: Comisiones de Fomento), and their legal status is regulated by a separate law.

In addition to the above-mentioned territorial entities, other territorial entities are being created in Argentina, taking into account the historical development and needs for the development of territories. So, historically, the provinces or the state themselves (in territories where provinces were not formed) created departments that represent administrative-territorial units. Currently, departments are created by provinces. They do not have their own governing bodies and are created mainly for administrative purposes, such as cadastral registration, statistical data collection, the formation of electoral districts, the formation of decentralized provincial governments (judicial precincts, police, etc.). In some provinces, departments geographically coincide with municipalities (for example, the province of Mendoza).

Since departments are not an independent territorial unit from the point of view of autonomous management, such an administrative division (into departments) does not have a significant impact on the functioning of municipalities. The only obvious exception is the province of San Luis, whose Constitution states that in the absence of municipalities on the territory of the department, the functions of the municipality are performed by the head of the department, as well as the council (representative body) being formed.

The Argentine Constitution provides provinces with the opportunity to form optional territorial entities of an interprovincial nature for economic and social development. The Supreme Court of Argentina drew attention to the mandatory and optional nature of territorial entities in a ruling dated 04.04.2019. Such territorial entities are called regions. They can create advisory governing bodies formed from the provinces that make up the region. Regions, unlike provinces or municipalities, do not have political autonomy. Currently, the Patagonia regions have been formed (it also provides for the division into subregions – northern and southern Patagonia), the Central Region, the Greater North Region, and the Nuevo Cuyo region.

Thus, the legislation of Argentina provides for the existence of mandatory and optional territorial entities. The provinces that are subjects of the federation along with the Autonomous City of Buenos Aires are mandatory. Despite the fact that the Argentine Constitution does not explicitly provide for the formation of municipalities, the mandatory existence of municipalities logically follows from the constitutional norm on municipal autonomy of a political nature. Due to the lack of unified federal regulation regarding the organization of municipal government, provinces have a fairly wide discretion in terms of municipal-territorial division. In addition to municipalities (and their analogues), other territorial formations (smaller than municipalities) are formed in the provinces. Such formations are called communes or do not have separate names at all, but local authorities are also formed in them.

Among the optional territorial formations, regions with an interprovincial character should be distinguished. These include administrative units – departments, which have historically been quite significantly integrated into the administrative and territorial structure of the country, but are mainly used to improve the efficiency and convenience of public administration.  

Argentina's approach in terms of municipal-territorial is interesting, first of all, by the differentiation of municipalities by categories, which allows the subjects of the federation to take into account provincial peculiarities. This experience is especially relevant in the context of the proposed municipal reform in Russia (draft federal law No. 40361-8), which involves a complete transition to a single-level model of territorial organization of municipal government.