Province - Legal Aspects

Legal Aspects

In many federations and confederations, the province or state is not clearly subordinate to the national or central government. Rather, it is considered to be sovereign in regard to its particular set of constitutional functions. The central- and provincial-government functions, or areas of jurisdiction, are identified in a constitution. Those that are not specifically identified are called "residual powers." In a decentralized federal system (such as the United States and Australia) these residual powers lie at the provincial or state level, whereas in a centralized federal system (such as Canada) they are retained at the federal level. Some of the enumerated powers can be quite important. For example, Canadian provinces are sovereign in regard to such important matters as property, civil rights, education, social welfare and medical services.

The evolution of federations has created an inevitable tug-of-war between concepts of federal supremacy versus states' & provinces' rights. The historic division of responsibility in federal constitutions is inevitably subject to multiple overlaps. For example, when central governments, responsible for foreign affairs, enter into international agreements in areas where the state or province is sovereign, such as the environment or health standards, agreements made at the national level can create jurisdictional overlap and conflicting laws. This overlap creates the potential for internal disputes that lead to constitutional amendments and judicial decisions that alter the balance of powers.

Though foreign affairs do not usually fall under a province’s or a federal state’s competency, some states allow them to legally conduct international relations on their own in matters of their constitutional prerogative and essential interest. Sub-national authorities have a growing interest in paradiplomacy, be it performed under a legal framework or as a trend informally admitted as legitimate by the central authorities.

In unitary states such as France and China, provinces are subordinate to the national, central government. In theory, the central government can create or abolish provinces within its jurisdiction.