The Unequal Distribution of Legal Rights: Who Gets What and Where in the Argentinean Provinces?(*)

Catalina Smulovitz ([email protected]) Universidad Torcuato Di Tella- Conicet

(*) This paper is part of a larger project on “Federalism and Inequality in Right Protection in Argentina”. I want to thank the John Simon Guggenheim Foundation for the Fellowship that is allowing me to conduct this research. I also thank Constanza Figueroa Schibber and Verónica Bianchini for their excellent research assistance.

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1.

Introduction

Equality under the law is a powerful and inspiring promise of democracies. Empirical studies have shown, however, that differences in social endowments affect and hinder its fulfillment. At present most of the literature considers this finding uncontroversial. It implies that the protection of rights tends to be unequal among social groups but homogeneous among members of the same group that is, that regardless of territorial institutional arrangements privileged actors are better protected than non privileged ones. Although the impact of social stratification cannot be dismissed, this paper analyzes other sources of inequalities in right protection. It shows that federalism,1 as an institutional arrangement for the geographical distribution of power and functions across levels of government, determines differences in the way rights are defined and enforced across the territory. In particular, the paper argues that inequality under the law and in right protection are due not only to differences in the actors´ social endowments but also to the way federal institutions and subnational politics shape the distribution of legal norms and resources within and across provinces determining in turn, differences in right enforcement. While social factors explain variations in right protection between privileged and unprivileged actors, federalism explains inequalities among privileged or unprivileged actors across the territory. Acknowledgment of territorial variations in the protection of rights reveals the relevance that federalism has in the distribution and enforcement of rights and point to other issues that also need to be considered in studies about equality under the law. These variations highlight that territorial differences in right protection are a constitutive element in the discussion of inequality and call for an explanation about the ways in which they come about. 1

See Beramendi, Pablo. “Federalism” in Boix, Carles and Stokes, Susan (eds) The Oxford Handbook of Comparative Politics. Oxford University Press, 2007; Gibson, Edward (ed). Federalism and Democracy in Latin America. Johns Hopkins University Press, 2004; Diaz Cayeros, Alberto. Federalism, Fiscal Authority, and Centralization in Latin America. Cambridge University Press. 2006; Wibbels, Erik. Descentralized Governance, Constitution Formation and Redistribution in Constitutional Political Economy, 16, pp. 161188, 2005; Watts, Ronald. Comparing Federal Systems. McGill-Queens University Press, 1999; Rodden, Jonathan. “Comparative Federalism and Decentralization: On Meaning and Measurement” in Comparative Politics Vol. 36, Nº 4, p. 481-500, 2004

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This paper is part of a larger research project about determinants of inequality in right protection among Argentinean provinces. That larger study has a descriptive and a conceptual goal. It maps the characteristics and scope of the territorial variation in the protection of domestic violence, and it advances a political framework to analyze inequalities in right protection in federal contexts. In the next section I briefly introduce a conceptual framework for the analysis of right protection in federal contexts. However the main goal of this paper is to evaluate and measure the protective scope of the provincial domestic violence laws in Argentina. The findings show that, regardless of the other sources of disparities in right protection, inequity starts with differences in the contents of the rights provincial states promise to protect. That is, the analysis shows that in addition to differences related to the way provinces enforce laws or provide resources to ensure compliance, inequity in right protection starts with differences in the legal promises provincial states make. Provinces promise to protect different harms, different type of victims and with different instruments. In other words, the paper shows that inequality in right protection begins even before the issue of enforcement enters the picture and that citizen’s rights vary by province. In particular the study analyzes and compares the protective scope of all the domestic violence laws sanctioned in Argentina both at the Federal and Provincial level. In December 1994 the Federal government approved Law 24.417 regarding the Protection against Domestic Violence” (“Protección contra la Violencia Familiar”), and since then all 24 provinces have approved their own provincial laws and in some cases more than one law. The comparison includes all the laws sanctioned by the Federal Government (2) and all the laws and decrees sanctioned by each of the 24 provinces (35). 2. Inequality in Right protection in Federal Contexts: An Analytical Framework.

The concept of right can be elusive. It involves complex philosophical and moral discussions. I will not deal with those debates here. For the purpose of this

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study I will consider, as Holmes and Sunstein2 do, that a social aspiration qualifies as a right “when an effective legal system treats it as such by using collective resources to defend it”. In other words, to become rights, social aspirations need to achieve a legal status. Rights are then, not only institutionalized promises but they also indicate claims a political community recognizes and is willing to back with the use of the coercive power of the state. It follows then, that to understand how right protection differs across jurisdictions it is necessary to determine how in each jurisdiction 1) rights- social aspirations- are specifically defined (i.e. what is recognized in need of state protection, to whom and how), 2) the financial resources the state (and the political community) allocates to ensure their enforcement and 3) the ways in which bureaucratic agencies perform their duties, that is, the ways in which judiciaries decide and executive agencies deliver services to implement those rights. In some federal contexts there is not always a common and unique law that can be compared across all jurisdictions. In this type of environments, the reference to a right involves acknowledgment of common way of naming or framing a particular social question, but its specific legal manifestations differs in each district and across jurisdictions. Thus, in some federal contexts to evaluate variations across jurisdictions we cannot measure differences in the magnitude of protection of a predefined and unique definition of a particular right. We can, instead, establish the different ways in which each jurisdiction defines the specific contents of a right it names similarly, the amount of financial resources it allocates to enable its protection and the ways in which local bureaucracies perform in order to ensure their enforcement. Comparison of these variations allows us to establish whether protected rights differ among districts and how. These comparisons do not allow us to measure the extent in which an ideal predefined right is protected in each jurisdiction. Thus, inequality in right protection is a relational measure rather than an absolute one. It establishes differences among districts rather than distance from a fixed parameter Hence, in order to evaluate differences in right protection, the dependent variable of this study, we need to establish in each 2

Holmes, Stephen and Sunstein, Cass, The Cost of Rights: Why Liberty Depends on Taxes. W New York: W. W. Norton & Co., 1999, p.17.

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district 1) the legal definition of the good to be protected, 2) the extent of resources allocated to ensure its implementation and 3) the performance of judicial and executive agencies.

In recent years the literature and definitions of federalism have bloomed. Definitions stress different aspects of this institutional arrangement. For the purpose of this discussion I will consider a definition recently advance by Gibson3 and a remark highlighted by Dahl.4 Gibson states that federalism is “a national polity with dual (or multiple) levels of government, each exercising exclusive authority over constitutionally determined policy areas, but in which only one level of government- the central government- is internationally sovereign.”5 Dahl, in turn, remind us that in federal systems “some matters are exclusively within the competence of certain local units –cantons, states, provinces- and are constitutionally beyond the scope of the authority of the national government, and that certain other matters are constitutionally outside the scope and authority of the smaller units.”6 Recent analyses of the workings of federalist arrangements have also noted that a defining condition of these regimes is the inherent fiscal authority of local states.7 Indeed much of the recent literature about the workings of federal regimes has centered on the impact that arrangements regarding the use of fiscal resources have on the political autonomy of local states, on the structure of the local party systems and elections,8 on the implementation of economic reforms 9

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Gibson, Edward. (ed). Op.cit., 2004, p. 5 Dahl, Robert. Federalism and the Democratic Process in Democracy, Identity and Equality. Norwegian University Press, 1986, cited by Gibson, Edward. (ed). Op.cit., 2004, p. 5 5 See also Watts, Ronald. Op. cit, 1998; Linz, Juan. “Democracia, Multinacionalismo y Federalismo” in Revista Española de Ciencia Política, Vol. 1, No. 1, 1999; Stepan, Alfred. “Federalism and Democracy: Beyond the US Model” in Journal of Democracy, Vol. 10, Nº 4, 1999. 6 Dahl, R. op. cit 1986 cited by Gibson, Edward. (ed). Op.cit., 2004, p.6. 7 Diaz Cayeros, Alberto. Op. cit., 2006, p.10. 8 Remmer, Karen and Gélineau, Francois. “Subnational electoral choice: economic and referéndum voting in Argentina (1983-1999)” in Comparative Political Studies, Vol. 36, N°7, 2003; Calvo, Ernesto and Murillo, María Victoria. "Who Delivers? Partisan Clients in the Argentine Electoral Market" in American Journal of Political Science, Vol. 48, No. 4, October 2004; Marcor, Darío and Tcach, César (eds). La invención del peronismo en el interior del país. Universidad Nacional del Litoral, 2003. 4

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and on the democratization of subnational regimes.10 These studies show that the distribution of fiscal powers condition the ability of local governments to resist political and economic interventions by federal authorities and to shape their own policies. Although this summary overlooks most of the conceptual subtleties of this literature, it shows that its main concern is focused on the relationship between the federal government and the provinces. It is a perspective that illuminates how fiscal power shapes the relationship between federal government and the local units but it tends to overlook the district level factors that explain policy variations within and among provinces. It concentrates on the economic and political consequences of the distribution of material goods between the federal government and the provinces but pays little attention to the mechanisms that enable uneven territorial allocation of symbolic and political goods in each jurisdiction.11 This study argues that in order to explain inequalities in right protection among provinces we need to observe an additional mechanism of differentiation: the extent and scope of the legislative, enforcement, policing and judicial capacities of local units. Federalist arrangements differ not only by the way in which they distribute fiscal powers between central and local authorities but also by the way they distribute these other competences between levels of government. Indeed as the literature on federalism shows, federations differ in the way they distribute exclusive, shared, and residual powers to legislate and by the way they distribute enforcing, policing, and judicial responsibilities between the central and local

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Gibson, Edward and Calvo, Ernesto. "Federalism and Low Maintenance Constituencies: Territorial Dimensions of Economic Reform in Argentina" in Studies in Comparative International Development, Vol. 35, No. 3, 2000; Remmer, Karen and Wibbels, Erik. "The subnational politics of economic adjustment. Provincial politics and fiscal performance in Argentina” in Comparative Political Studies, Vol. 33, No. 4, 2000. 10 Gervasoni, Carlos. “A Rentier Theory of Subnational Regimes: Fiscal Federalism, Democracy and Authoritarianism in the Argentine Provinces” in World Politics, Vol. 62, No. 2, April 2010; Giraudy, Agustina. Subnational Undemocratic Regime Continuity After Democratization: Argentina And Mexico In Comparative Perspective. Ph. Dissertation, University of North Carolina, 2009. 11 The literature on the workings of federalist systems notes that their operation and differences are determined by way they allocate taxing powers but also by the number and character of the constituent units, by the distribution of legislative and executive authority, by the scope of specific governmental responsabilities assigned to each level and by the nature of the common federative institutions (Watts, Ronald. Op. cit., 1998; Wibbels, Erik. Op. cit., 2005).

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units.12 In some federations, exclusive competences of central authorities are high, while in others they are low. The way these legislative, judicial

and enforcing

responsibilities are distributed is important in so far as they determine whether local politics can redefine rights at the provincial level. It is expected that when residual or shared competences are high, the political authority of the central power in the local units will diminish. Thus, the way enforcing, judicial and legislative capacities are distributed across a federation matters because it indicates if local units are enabled to define their own legislation, the enforcement mechanisms, and the judicial interpretation. The preceding comments also alert that Gibson and Dahl´s emphasis on the exclusive character of the political attributions of federal or local authorities overlooks the wide gray areas where federal and local authorities have concurrent and residual attributions. Their implicit acceptance of fixed and exclusive attributions of authority hides why conflicts between federal and local authorities can come about. Indeed, the contested character of many federalist arrangements is related to this vaguely fixed distribution of responsibilities. Indeed this vague and sometimes contested distribution of responsibilities can become an important source of conflict among federal and local units and a limitation of the federal authorities’ abilities to implement homogenous policies across the territory. In the federalist Latin American countries the scope of these capacities vary widely. While in Brazil, for example, the legislative autonomy of states is relatively low; in the Argentinian case the legislative autonomy and implementation capacities of provincial states is much higher.13 Knowledge about the magnitude of the political and legislative autonomy of the local units vis a vis the central authority indicates whether differentiation in the contents of the protected rights and in the mechanisms for enforcement among local units can take place. And although, availability of these competences does not explain the specific content provincial laws will achieve in each district nor how rights will be protected, they inform if conditions enabling variation in legal promises are in place. Therefore, the type and scope of legislative competences of provincial units defined by each Constitution 12

Watts, Ronald. Op. cit., 1998 See below for a description of the legislative competences of states and federal authorities in the Brazilian and Mexican case. 13

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explains whether variations in the content and enforcement of rights are legally possible among districts. We expect to find that, when federal legislative exclusive competences are low and shared or residual provincial legislative competences are high (i.e. Argentina), variations in the content of rights and in enforcement will be more likely. Higher shared or residual legislative competences are associated with higher variation in right protection because they increase the relevance of local endowments and competition in the definition of the content of legal rights and in the allocation of resources for enforcement.14 One important note is in order. I am not arguing, that the legal content of rights established and enforced in provincial units are of a “lower quality” than the ones sanctioned and enforced at the federal level. I am arguing instead, that legislative competences of provincial units are associated with variation and inequities in the contents and enforcement of rights among districts. Since provincial districts have autonomy to legislate and enforce laws, outcomes can be either more or less protective than the ones sanctioned and enforced at the federal level. Furthermore, some authors have argued that in some cases, provincial states can protect rights more widely than federal authorities since their authorities may have more autonomy to innovate.15 Thus, federalism results in heterogeneity in right protection rather than in systematic worse or better local or federal outcomes. In spite of that, it should be mentioned a growing literature in regard to the enforcement of International Human Treaties indicating that in many federal states, local authorities are using the “federal card” to justify non compliance of rights across their territories.16 14

Variations in right protection also take place in unitary states in so far the distribution of state capacities, actors’ social resources and support structures can also be unevenly distributed in these regimes. It is expected, however, that in federal regimes where legislative autonomy of local units is greater, variation will be greater. However, it should be remembered that unitary regimes do not preclude regional inequalities in right protection. And that those variations will not be associated with differences in legal promises but with conditions for enforcement. 15 See Howard, Dick. “Protecting Human Rights in a Federal System” in Tushnet, Mark (ed.) Comparative Constitutional Federalism, Europe and America. Greenwood Press, 1990. 16 Dulitzky, Ariel. “Implementación del Derecho Internacional de los Derechos Humanos en los Sistemas Federales. El Caso de la Convención Americana sobre Derechos Humanos y la República Argentina” in Abramovich, Víctor; Bovino, Alberto and Courtis, Christian (eds.) La Aplicación de los Tratados sobre Derechos Humanos en el Ámbito Local: La

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The next sections analyze, measure and compare the protective scope of all the domestic violence laws sanctioned in Argentina both at the Federal and Provincial level given the legislative, enforcement and judicial autonomy provinces have in the Argentinian federalism. Before that, a few remarks regarding the other factors that explain why and how in federal contexts right protection among districts can differ. As mentioned legislative and enforcement autonomy of local units is a necessary condition for right variation, however once these condition are in place, what explains variations in right protection, that is, which are the independent variables that need to be considered? I argue that variations in right protection among jurisdictions result from the interaction between the mentioned necessary condition and the following independent variables: 1) degree of local political competition, 2) local state capacities and 3) local support structures. How and why do these independent variables interact? And what type of outcomes can be expected? Let´s brieflly spell out how each of these variables impact right protection. In federal contexts characterized by low exclusive legislative and enforcement capacities of central authorities, a) Degree of Local political Competition determines the specific contents rights and laws achieve in each district and the amount of resources allocated for enforcement in each jurisdiction. b) Local state capacities determine whether local bureaucracies have the administrative abilities to deliver policies across the provincial territory, and c) Local support structures17 affect the performance of local bureaucracies, the emergence of topics in the local political agenda and the supply of legal instruments and personnel to advance claims in the local community.

Experiencia de una Década. Corporación Gráfica, 2007; Dulitzky, Ariel. “El Sistema Interamericano de Derechos Humanos” in Ollé Sesé, Manuel; Acebal Monfort, Luis and García Sanz, Nuria (eds.) Derecho Internacional de los Derechos Humanos: su vigencia para los Estados y para los ciudadanos, Anthropos Editorial, 2009. 17 Support structures include organizations dedicated to litigating rights issues, willing and competent lawyers, as well as financial resources for legal claiming. Support structures are important because they allow plaintiffs to make and persist with their claims and because they provide them with specialized resources to enable access the courts. (Epp, Charles. The Rights Revolution. Chicago: The University of Chicago Press, 1998)

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It is expected that when federalist arrangements are characterized by high levels of local political and legislative autonomy, the incidence of these three independent variables will increase and variations in right protection across jurisdiction will likely become more significant. However, how each of these variables operates varies. a) We mentioned that the scope of the political and legislative autonomy determines if local jurisdictions are entitled to define the content and scope of local rights. We also noted that this autonomy does not indicate how local executives and legislatures actually use those competences. Provincial legal autonomy is a condition for differentiation in so far as it enables local political competition to determine the specific content of rights and the magnitude of the resources allocated to back their implementation. Local political competition affects the definition of the protected rights at two different stages. It affects laws at the time in which rights are granted in the local legislature, and periodically in so far as they impact resources for enforcement each time legislatures allocate funds to ensure implementation. The impact of high competition on the contents of policy outcomes depends on contextual factors such as the mandatory or voluntary character of the vote or the nature of the allocated goods (material or symbolic). Some studies argued that when vote is voluntary, high competition promotes more redistributive policies, because competitors have an incentive to mobilize lower socioeconomic voters that tend to be electorally inactive. For example, if vote is voluntary and competition is high, parties tend to offer redistributive public policies to appeal to disadvantaged and less politically active sectors.18 In these contexts, candidates and parties have incentives to organize uncoordinated voters. On the other hand, if vote is mandatory, parties and candidates cannot expand the number of potential participants, and they are forced then to target their policy offers toward previously organized and activated groups. In so far, in this case everyone is obliged to vote; 18

Karch, Andrew and Deufel, Benjamin. "Political Party Competition and Redistribution in the American States" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois, April 15th, 2004; Dawson, Richard and Robinson, James. “Inter-Party Competition, Economic Variables, and Welfare Policies in the American States” in The Journal of Politics, Vol 25, May 1963.

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from the candidates’ point of view, it is more convenient to target electoral appeals to already organized group than to offer benefits to unorganized or uncoordinated actors. Even though they could attempt to redraw organizational lines it will we more convenient and it will likely render better results if they concentrate their appeal on those sectors with previous organizational structures. Thus, when vote is mandatory and competition is high, policies will be responsive to the needs and preferences of already organized, powerful, and noisy groups. Thus in our specific cases, where vote is mandatory it can be expected that laws will be more protective and resources for enforcement greater when competition is high and it takes place jointly with the presence of organized issue groups. If that is not the case, high political competition will not affect the inclusiveness of laws because competitors will not be forced to appeal to particular differentiated constituencies nor will they need to incorporate particularistic topics in the agenda. In other words, we expect to find that when vote is mandatory high competition will result in more inclusive laws only in those cases in which it coexists with the presence of previously organized identity or issue movements. Regarding the impact of high competition in the periodic allocation of resources to ensure implementation one comment is in order. Although bureaucratic inertia can reduce the volatility in the amount of resources allocated for enforcement, we expect to find a direct relationship between the sustainability of resources for enforcement and the combined effects of high competition and persistence of organized issue or identity groups’ organizations. As is the case when a particular law is enacted, it is expected that the sustainability in the provision of funding for implementation will only take place when high competition coexists with the presence of strong issue and identity groups. Only in those cases in which competing political forces need to preserve their electoral appeal over specific constituencies there will be incentives for the continuous provision of financial resources to ensure implementation. b) The second independent variable that affects inequality in right protection is the supply of state bureaucratic capacities. To deliver and enforce policies, public agencies need bureaucratic capacities with territorial reach and technical

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capacities. Bureaucratic state capacities vary across jurisdictions and, in turn, these variations determine differences in the abilities of local states to deliver and enforce rights. Bureaucratic capacities depend on the state extracting capacities, the professionalization of the bureaucratic personnel (procedures and human capital), the administrative differentiation of the offices, and the geographical reach of state agencies. It is expected that right protection will be higher in those district in which bureaucratic capacities are high that is, when extractive capacities, administrative differentiation, personnel professionalization, and territorial reach of local state agencies are high. c) The third independent variable to be considered involves the supply and characteristics

of

the

local

support

structures.

Performance

of

local

bureaucracies depends not only on the supply of state bureaucratic capacities but also on the social and political controls and demands politicians and bureaucracies face. Differences in the nature and density of the local support structures determines variations in the surveillance and claims judicial and executive agencies confront in each territory and in turn, influence how bureaucratic agencies perform. Thus, to explain variations in performance of bureaucratic agencies we need to consider how and whether local support structures activate the workings of horizontal and social accountability mechanisms. It is expected that right protection will be higher in those district in which bureaucratic capacities are high, but also in those in which local support structures are dense and strong. In those scenarios, public servants will have adequate administrative instruments for implementation, rulers lesser capacities to interfere with performance of judicial agencies, and because local organized groups will claim and oversee right enforcement, performance of bureaucracies will be more responsive to their demands. The existence of strong local support structures provide claimants more litigating resources, the possibility of repeating their interventions,19 more sophisticated knowledge of the legal processes, access to specialists, and allows them to build a “bargaining reputation”. 19

Galanter, Marc. "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" in Law & Society Review, Vol. 9, 1974

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Thus, federal contexts characterized by high political and legislative autonomy, give place to differences and inequalities in right protection because they enable the operation of local political configurations, local state capacities and local support structures. The workings of these variables determine variations and differences across jurisdictions in the content of the rights, in the resources allocated to enforce them and in the actual performance of the local bureaucratic agencies. Table 1: Framework to explain Differences in Right Protection in Federal Systems Necessary Condition Political, Legislative Judicial Autonomy of Local Units Independent Variables

Dependent Variables

Local Political Competitiveness

Content of Provincial Laws

Bureaucratic Capacities

Financial Resources for enforcement

Local support structures

3.

Performance of enforcing institutions

Varieties of Federalism: The Argentinean Setting

In recent times several studies have pointed out the relevance that federalism has in the political dynamic and in public policy making in Argentina. It is necessary then to spell out some of its characteristics. Argentina is a federal country; it has twenty-three provinces, one autonomous government in the city of Buenos Aires and one thousand nine hundred twenty-two municipalities.20 These 24 local units enjoy the same institutional status, draw their own constitutions, 20

The autonomous government of the City of Buenos Aires is considered the 24th province.

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choose their provincial executives and legislatures, and organize their own judiciary. Argentinean federalism is also characterized by important differences in the size, development levels, and distribution of economic resources among its provinces. In 2.000 a PNUD report established that five argentinian provinces21 (Buenos Aires, Ciudad de Buenos Aires, Córdoba, Santa Fe y Mendoza) concentrate 85% of the Geographical Gross Product. Differences in the provincial infant mortality rates reflect the social dimension of these inequalities. In a country where the national average of infant mortality rate is 11.4, the infant mortality rate in Corrientes is 19,7 per thousand while in Ciudad de Buenos Aires is 6,2.22 Thus, any study of Argentinian federalism should keep in mind that variations in institutional instruments take place in a context characterized also by huge regional inequalities in the distribution of economic endowments and in the performance of social indicators. Recent studies about Argentinean federalism recognize its working is related to both constitutional and political variables. However, most of them concentrate on the impact of the latter. These studies consistently show that provincial rules defining electoral calendars,23 candidate selection procedures and electoral thresholds increase the governors political power in their districts vis a vis the national government and protect them from interferences of federal authorities.24 Studies also note that the fiscal revenue transfers system (usually named as Coparticipación) is an additional and important source of provincial power. According to this system, the central government collects taxes that reallocates 21

PNUD. Aporte para el Desarrollo Humano de la Argentina. La competitividad de las provincias, 2002. 22 The infant mortality rate reflects the number of deaths of infants under one year old in a given year per 1,000 live births in the same year. 23 Oliveros, Virginia and Scherlis, Gerardo. “¿Elecciones concurrentes o elecciones desdobladas? La manipulación de los calendarios electorales en la Argentina, 19832003” in Cheresky, Isidoro and Blanquer, Jean-Michel (eds.). ¿Qué cambió en la política argentina? Rosario: Homo Sapiens, 2004, p. 179-211, cited by Ardanaz, Martín; Leiras, Marcelo and Tommasi, Mariano. The Politics Of Federalism In Argentina And Its Effects On Governance And Accountability. Manuscript, 2010. 24 Ardanaz, Martín; Leiras, Marcelo and Tommasi, Mariano. The Politics Of Federalism In Argentina And Its Effects On Governance And Accountability. Manuscript, 2010; Fenwick, Tracy. “The Institutional Feasibility of National-Local Policy Collaboration: Insights from Brazil and Argentina” in Journal of Politics in Latin America, Vol. 2, No. 2, 2010; Braun, Miguel and Aradanaz, Martín. “Kirchners Swap Keys for Presidential Sweep” in Forum of Federations, Fall 2008, p. 29-31.

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through a complex mix of automatic and discretionary mechanisms to the provinces while provincial authorities set their budgets, spend their moneys and transfer revenues to their municipalities according to their own priorities. Subnational governments spend around 50 per cent of the consolidated public spending and collect only 20% of the consolidated revenue.25 In some scarcely populated provinces, federal transfers from Coparticipation amount to 80% of the provincial revenue.26 As Ardanaz, Leiras and Tommasi,27 among others, note “provincial politicians enjoy a large share of the political benefits of spending, yet pay only a small fraction of the political cost of taxation.” Given the decentralized structure of the federal government and the provincial autonomy to provide public services and to implement policy; the intergovernmental transfers system not only has a built in expansionary bias but it also conspires against interprovincial and vertical intergovernmental cooperation.28 Due to this arrangement, provinces can extract cash for votes in the Federal Legislative bodies but the central government is unable to ensure that provincial authorities will use the obtained resources according to central government guidelines. This literature thoroughly described and analyzed how political and fiscal variables transform governors into powerful political players. The following paragraphs analyze another aspect of the power and autonomy of provincial authorities: its constitutional foundation. This base enables the workings of the political and fiscal variables identified in the literature at the same time that it provides provincial authorities with constitutional arguments to avoid central government interferences reinforcing in turn their power and autonomy vis a vis the central government. The Argentinean National Constitution establishes the primacy of the federal authority over the provincial autonomies29 but it also preserves the powers 25

Braun, Miguel and Aradanaz, Martín. Op. Cit., 2008 Ardanaz, Martín; Leiras, Marcelo and Tommasi, Mariano. Op. cit, 2010. 27 Ardanaz, Martín; Leiras, Marcelo and Tommasi, Mariano. Op. cit, 2010. 28 Jones, Mark; Saiegh, Sebastián; Spiller, Pablo and Mariano Tommasi. “Amateur Legislators-Professional Politicians: The Consequences of Party-Centered Electoral Rules in a Federal System” in American Journal of Political Science, Vol. 46, No. 3, 2002; Fenwick, Tracy. Op. cit., 2010. 29 For example, articles 5 and 123 condition the exercise of the constitutional power of the provincial states; article. 75 inc. 12 establishes the unity of the codified legislation, article 26

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of the provincial states when there is no explicit delegation of power to the federal authority. While some articles establish the supremacy of the federal over the provincial authorities, others redefine the scope of this subordination in ways that result in the establishment of arenas of provincial autonomies. There are three types of relations among federal and provincial authorities a) of subordination, when provinces delegate powers to the federal state), b) of autonomy, when delegation has not been explicitly established and c) of cooperation when the Constitution establishes concurrent powers between federal and provincial authorities. Article 5,30 for example, entitles provinces to establish their own Constitutions, the institutional rules that govern competition and to legislate and regulate their legal activity. Thus, competition rules, legislation, and the organization of legal activity vary across provinces. In other words, each province is entitled to organize its own Judicial Power, to exercise constitutional control of their own provincial constitution, to decide the rule regarding the relations between the provincial and municipal government as well as how basic education will be provided in the provincial territory. Article 121 establishes the general principle that delineates the legislative autonomy of the provinces. The article holds that “provinces reserve to themselves all the powers not delegated to the Federal Government by this Constitution, as well as those powers expressly reserved to themselves by special pacts at the time of their incorporation.” The general principle established in Article121 is specified in 116 establishes the hierarchical supremacy of the National Supreme Court for constitutional review, article. 127 establishes that conflicts among provinces will be solved at the National Supreme Court; article 128 that provincial governors are the natural agents of the federal government for the enforcement of the Constitution and the national laws, article 6 and 75 inc. 31 establish the competence of the National Congress to decide interventions of the territory of the provinces, article 23 allows the Federal government to establish the state of siege and article 75 inc. 2 establishes a unified system for tax recollection in the central government and soft requirements for their distribution among provinces (Castorina de Tarquini, María Celia. Federalismo e integración. Buenos Aires: Ediciones Ediar, 1997, p. 61-62). 30 Article 5, establishes that provinces “shall enact its own constitution under the republican, representative system, in accordance with the principles, declarations, and guarantees of the National Constitution, ensuring its administration of justice, municipal regime, and elementary education” The article also establishes that “under these conditions, the Federal Government shall guarantee each province the full exercise of its institutions.”

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the articles that establish the competences provinces delegate in the Legislative, Executive and Judicial powers (articles 75, 99, 116 and 117) and in others that explicitly establish the competences reserved to the provinces (articles 5, 75, inc 12 and 122 ). For example, Article 75 inc. 1231, establishes the power of the Federal Congress to enact Civil, Commercial, Criminal, Mining, Labor and Social Security Codes; but it also establishes that enforcement corresponds to federal or provincial courts depending on the jurisdictions for persons or things. Thus, provinces are entitled to enforce the law by their local courts, and to establish the local procedural codes to implement them at the provincial level.32 Since an important source of policy differentiation rests on the implementation and enforcement stages of the policy process, these entitlements give provincial authorities ample autonomy to define what policies actually become at the local level. Provincial capacities to define the specific content of policies achieved at the local level are reinforced in art. 11633 . This article establishes that the National Supreme Court is not enabled to review the interpretation provincial tribunals’ make of the unified Codes mentioned in Art. 75.12.

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The policy implication of these two articles

(75,12 and 116) is that the National Supreme Court jurisdiction is limited to federal laws (i.e. norms included in Art 75 with the exception of those mentioned in Art 31

- “Congress is empowered: To enact the Civil, Commercial, Criminal, Mining, Labor and Social Security Codes, in unified or separate bodies, provided that such codes do not alter local jurisdictions, and their enforcement shall correspond to the federal or provincial courts depending on the respective jurisdictions for persons or things; and particularly to enact general laws of naturalization and nationality for the whole nation, based on the principle of nationality by birthor by option for the benefit of Argentina; as well as laws on bankruptcy, counterfeiting of currency and public documents of the State, and those laws that may be required to establish trial by jury.” (my italics) 32 Gelli, María Angélica. Constitución de la Nación Argentina. Comentada y Concordada. Tercera Edición Ampliada y Actualizada. La Ley 2005. p. 675. 33 “The Supreme Court and the lower courts of the Nation are empowered to hear and decide all cases arising under the Constitution and the laws of the Nation, with the exception made in Section 75, subsection 12, and under the treaties made with foreign nations; all cases concerning ambassadors, public ministers and foreign consuls; cases related to admiralty and maritime jurisdiction; matters in which the Nation shall be a party; actions arising between two or more provinces, between one province and the inhabitants of another province, between the inhabitants of different provinces, and between one province or the inhabitants thereof against a foreign state or citizen.” 34 See Gullco, Hernán; “La Suspensión del Juicio a Prueba y el Concepto de Cuestión Federal” in Revista de Derecho Penal y Procesal Penal” Abeledo Perrot 7, 2008 p. 1229.

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75.12) and does not encompass “derecho común” laws (i.e. the unified Codes mentioned in 75.12). In other words, since the definition of the procedural aspects of the unified codes and the review of the judicial interpretation of the decisions of the local tribunals rests on the provinces, local powers enjoy a significant authority to define the actual meaning rights achieve at the point in which they are implemented and the specific procedures that will regulate enforcement. Provincial governments appeal to the general principle established in Article 121 to protect their autonomy and their ability to legislate and to regulate rights in ways that may differ from the federal regulations. Although in principle these differences cannot confront or eliminate the rights established in the National Constitution they are entitled to redefine the actual and specific scope rights achieve at the provincial level.35 The vague character of the delegation established in Article 121, together with the interpretation capacities endowed by article 116 explains why variations in the protective scope of rights can take place. They open a window of opportunity for persistent political struggles between federal and provincial authorities regarding the distribution of competences and for the continual contestation of its interpretation. The previous paragraphs inform about the complexities and numerous gray zones involved in the constitutional allocation of responsibilities between provincial and federal authorities. They show that although the Argentinian constitutional design establishes areas in which the federal government prevails over provincial units, the constitution fragments power and attributions among federal and provincial units and it establishes both specific and vague zones where provincial 35

As the comparison of provincial domestic violence laws shows, the specific ways provincial legislative powers define how rights will be protected results in many cases in protection levels below the floor established by the national legislation. Indeed, several U.N. reports evaluating the implementation of International Right Treaties in Argentina include observations mentioning that due to the “sistema federal de gobierno, muchos de los derechos enunciados en el Pacto no se protegen de manera uniforme en todo el territorio nacional (Artículo 2 del Pacto) See for example , UN. Comité de Derechos Humanos, Examen de los informes presentados por los estados partes con arreglo al artículo 40 del pacto. Observaciones finales del Comité de Derechos Humanos. 98º período de sesiones Nueva York, 8 a 26 de marzo de 2010, p.2. For more on this regard see Dulitzky, Ariel. Op. cit, 2007; Dulitzky, Ariel. Op. cit, 2009.

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legislative and judicial competences can be pursued. In addition, the description shows that in spite of the existence of some contested areas, provincial authorities enjoy wide attributions to redefine the specific contents of rights, to decide how resources for policy implementation will be allocated and to regulate how enforcement will take place at the provincial level. These attributions show not only the critical role provincial authorities have at the time and place in which policies and rights are decided and enforced but also make evident why the study of policy making and of right protection needs to focus at the provincial level. It is worth mentioning that not in all federal countries legislative and judicial autonomy of provincial jurisdictions is wide. In Mexico36 and

Argentina37,

subnational authorities enjoy relatively ample legislative and judicial powers. That is not the case in Brazil. Although the Brazilian38 constitution establishes some areas over which states have exclusive competences, states have fewer legislative competences than Federal authorities, and after the 1988 Constitution they even have fewer competences than municipios. The Brazilian Constitution, as the Argentinean and Mexican one, establishes that states have residual competency over areas not enumerated as federal competency, a clause that could have led to ample state level legislative and judicial competences. However, Article 22 of the 1988 Constitution greatly restricts them by explicitly enumerating the exclusive ones that belong to the federal authority. Clause I of Article 22 specifies that federal authorities have exclusive competence to legislate on “direito civil, comercial, penal, processual, eleitoral, agrário, marítimo, aeronáutico, espacial e do trabalho.39 The detailed enumeration of the matters under exclusive 36

See Carbonell, Miguel; “El Federalismo en México: Principios Generales y Distribución de Competencias” Instituto de Investigaciones Jurídicas, 2003. http://www.juridicas.unam.mx/publica/librev/rev/dconstla/cont/2003/pr/pr21.pdf. 37 For illustration purposes I just mention Latin American cases, but the U.S. is another example where local legislative and judicial autonomy is broad. 38 I greatly appreciate Marcus Melo´s comments and information on this topic. See also Souza, Celina. “Federal Republic of Brazil” in Kincaid, John and Tarr, Alan (eds.) Constitutional origins structure and change in Federal Democracies. Mc Gill Queen´s University Press, 2005. 39 The other clauses of Article 22 of the 1988 Constitution state that the Federal authority also has exclusive competences to legislate on “II - desapropriação; III - requisições civis e militares, em caso de iminente perigo e em tempo de guerra; IV - águas, energia, informática, telecomunicações e radiodifusão; V - serviço postal; VI - sistema monetário e de medidas, títulos e garantias dos metais; VII - política de crédito, câmbio, seguros e

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competence of the federal authority included in Article 22 voids states from their apparent legislative autonomy. Thus, in contrast to the Argentinean case where, as the next section will show, Domestic Violence Laws vary widely among provinces; in the Brazilian case, the Domestic Violence Law (known as the Maria da Penha Law) is valid and holds for all states since it is a penal law covered by Clause I of article 22. Although analysis of its implementation at state level shows differences and inequalities, those differences are related to the way in which rights are implemented rather than to differences in legal promises. On the other hand, and regarding the impact of federalism in the Mexican case, Sonia Frias40 shows that by May 2005 four states had not sanctioned laws protecting victims of family violence, that only 26 of the 32 states prosecute it as such and that six of the states that have specific legislation did not consider it a felony.

These illustrations

indicate that the scope of the legislative and judicial autonomy and abilities of state authorities vary across federations, and that future research should perhaps concentrate on the effect varieties of federalism have on public policy rather than on the consequences of federalism itself. transferência de valores; VIII - comércio exterior e interestadual; IX - diretrizes da política nacional de transportes; X - regime dos portos, navegação lacustre, fluvial, marítima, aérea e aeroespacial; XI - trânsito e transporte; XII - jazidas, minas, outros recursos minerais e metalurgia; XIII - nacionalidade, cidadania e naturalização; XIV - populações indígenas; XV - emigração e imigração, entrada, extradição e expulsão de estrangeiros; XVI - organização do sistema nacional de emprego e condições para o exercício de profissões; XVII - organização judiciária, do Ministério Público e da Defensoria Pública do Distrito Federal e dos Territórios, bem como organização administrativa destes; XVIII sistema estatístico, sistema cartográfico e de geologia nacionais; XIX - sistemas de poupança, captação e garantia da poupança popular; XX - sistemas de consórcios e sorteios; XXI - normas gerais de organização, efetivos, material bélico, garantias, convocação e mobilização das polícias militares e corpos de bombeiros militares; XXII competência da polícia federal e das polícias rodoviária e ferroviária federais; XXIII seguridade social; XXIV - diretrizes e bases da educação nacional; XXV - registros públicos; XXVI - atividades nucleares de qualquer natureza; XXVII - normas gerais de licitação e contratação, em todas as modalidades, para a administração pública, direta e indireta, incluídas as fundações instituídas e mantidas pelo Poder Público, nas diversas esferas de governo, e empresas sob seu controle; XXVII - normas gerais de licitação e contratação, em todas as modalidades, para as administrações públicas diretas, autárquicas e fundacionais da União, Estados, Distrito Federal e Municípios, obedecido o disposto no art. 37, XXI, e para as empresas públicas e sociedades de economia mista, nos termos do art. 173, § 1°, III; (Redação dada pela Emenda Constitucional nº 19, de 1998) XXVIII - defesa territorial, defesa aeroespacial, defesa marítima, defesa civil e mobilização nacional; XXIX - propaganda comercial. 40 Frias, Sonia; “Measuring Structural Gender Equality in Mexico: A State Level Analysis” Social Indicators Research (2008) 88, p.235.

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In the following section I analyze the impact provincial legislative and judicial autonomy has had in the specific content of provincial laws regulating domestic violence in Argentina. The analysis presents a map of those differences and an assessment of the resulting levels of protection. I will not examine however, the provincial political competition that may explain why certain provinces end up with more protective laws while others with less protective ones. That analysis, as mentioned before, is the topic of another paper. 4. Mapping Differences in the Contents of the Protected Right. Inequality in Legal Promises.

Before considering those differences, a brief comment regarding some recent changes in the regulation of gender relations in Argentina is in order. Argentina signed the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 1980, and although the Convention achieved congressional status in 1985 (Law Nº 23.179/85), its protocol was only ratified by law in 2006 (Ley Nº 26.171/06). The Congressional status of the treaty gave place to several other policy and legislative changes. In 1985, the National legislature approved a law regarding the rights of out wedlock children, and another (Ley Nº 23.264/85) regarding the rights and responsibilities of fathers and mothers. In 1986, the Supreme Court declared the unconstitutionality of the law that forbidden divorce and in 1987 Congress approved a new civil marriage law (Ley Nº 23.515/87) that contemplated divorce and new marriages.41 A few years later, and in order to increase women’s participation in politics, Law Nº 24.012/ 91 set up a quota system that establishes that 30% of all candidates standing for elections have to be women. And in 2002 a law establishing a quota requirement for elections in trade unions was also sanctioned. In this context characterized by the increasing presence of gender issues in the public and legislative agenda, Congress sanctioned in 1994 the Law Nº 41

Since the late 1960´s women achieved greater rights in marriage in Argentina Brazil and Chile, and divorce was legalized in Argentina and Brazil. In none of the three countries abortion has been liberalized. See Htun, Mala. Sex and the State. Cambridge University Press, 2003.

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24.417/94 on Domestic Violence (Ley de Protección contra la Violencia Familiar). The law recognized that domestic violence is not a private question but a public one. It contemplated both physical and psychological violence and it established that any person may report abuses from a member of the family group42 at a Family judge. The National law established that in addition to victims, public and private agents such a public hospital, schools the police and social services were entitled and in some cases obliged to denounce physical or psychological abuses. It enabled victims to request a series of precautionary measures such as provisional custody of the minors, order of mandatory departure from the conjugal home, intervention in the custody of minors, prohibition of entry into the place where the petitioner or the minors are located, orders to pay support, orders to stop disposition o common property, etc. The law also established a summary and urgent procedure and hearing of the parties within 48 hours and that judges could request “expert diagnosis of family interaction” to determine injuries and establish precautionary measures without initiating separate proceedings. Judges were also entitled to call for mediation hearings.43 Since domestic violence requires the urgent and swift protection of harms, the law enabled judicial officials to issue precautionary measures, such as provisional custody of minors or mandatory departure from the conjugal home, even before the complete legal process has been substantiated. In order to prevent the continuation of the immediate danger, judicial official are authorized to issue provisional precautionary measures that only need, at first, that denounces be highly probable. Finally, in its last article, the national law explicitly invited provinces to sanction laws dealing with the problem. Since then, several other institutional changes have taken place. In 1996, Congress approved the Interamerican Convention to Prevent, Sanction, and Eradicate Violence against Women ("Convención de Belem do Pará") (Nº 24.632). And in 2009 it approved a law protecting women against different types of violence and in all areas where they develop interpersonal relations was approved (Law

42

Family groups includes married and consensual unions. Larrain, Soledad. “Violencia Doméstica Contra la Mujer en América Latina y el Caribe. Revisión de Dos Décadas de Acción” Documento de la Conferencia Violencia Doméstica en América Latina y el Caribe: Banco Inter-Americano de Desarrollo, Washington, D.C., 1997. 43

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22

26.485). The first democratic government also created the National Council of Women in order to design and articulate the legislation regarding gender issues among provinces. However, since its creation the Council has been losing cloud in the development and implementation of policies .44 It should also be mentioned that in 2008 the Supreme Court opened an Office of Domestic Violence that receives denounces and provides legal counseling for victims living in the City of Buenos Aires. Between September 2008 and January 2009, this Office received 11.501 denounces, 68 % involved physical violence, 13% sexual violence and 30 % economic violence. In spite of these relevant institutional changes, Argentina does not have official and comprehensive statistics regarding the prevalence of the problem. Indeed the “Informe sobre Genero y Derechos Humanos 2005-2008” elaborated by an NGO specialized in gender issues not only acknowledges and denounces this problem but it reports official disaggregated data regarding denounces of domestic violence only for the City of Buenos Aires.45 In another study, information comes from a survey to women living in three big cities and not from official records.46 Although statistics about domestic violence are not exhaustive and are mainly collected by NGOs, all sources agree that the number of victims of domestic violence is high and increasing. According to Amnesty International in the last 12 years claims for domestic violence grew 400% in Civil Tribunals (1.109 claims in 1995, 3779 in 2006)47 and other

organizations have informed that in 2009 there were 231

44

Franceschet, Susan. “Explaining Domestic Violence Policy Outcomes in Chile and Argentina” in Latin American Politics and Society, Vol. 52, No. 3, Fall 2010. 45 Equipo Latinoamericano de Justicia y Genero (ELA); Informe sobre Género y Derechos Humanos (2005-2008), Buenos Aires, 2009. 46 Equipo Latinoamericano de Justicia y Genero Violencia familiar. Aportes para la discusión de Políticas Publicas. Buenos Aires 2009, p.16. 47 A study developed by AMJA in 2003 shows that judicial statistics underegister the relevance and presence of domestic violence cases in the lower court tribunals of Capital Federal. For example, while the “Justicia Correccional” statistics recognized that 5.5% of its cases involve domestic violence, the in depth study of sentences revealed that 24.4% of the cases involved this type of conflicts. The same trend was found in the statistics of the family courts where registers showed that 10% of the case involved domestic violence and the study found that 25% of the cases addressed by this courts included cases of domestic violence. Ramirez, Fernando. “El tratamiento de la “violencia doméstica” en los tribunales ordinarios de la Capital Federal”. AMJA, 2003.

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23

femicides, 23 more than in 2008.48 The 2009 Ela Report indicates than from 2002 to 2008, denounces received by the Appeal Civil Court of the City of Buenos Aires grew from 2.20 to 5.15249 and it indicates that 61% of the interviewed women consider violence by male partners against women very frequent.50 Since 1994, the 24 provincial districts have approved laws against domestic violence. The sanctioning process shows a domino pace that is likely related to the incorporation of international treaties, such as CEDAW, in the 1994 Constitution.51 Although this paper does not analyze the determinants of this sanctioning process, it is safe to speculate that in many cases, international commitments rather than internal impulses engine their approval. To analyze differences among provincial laws I elaborated an index of legal protection.52 It measures the protective scope of the provincial laws across seven dimensions. Although the law is just one dimension of the problem of inequality of rights, it is still a relevant one. Laws indicate which are the official institutional promises states and communities are willing to make and back with the use of the coercive power of the state in regard to a specific conflict or behavior. Thus, differences in the contents of laws informs about the intensity and scope of those institutionalized commitments. If the specific content of laws were irrelevant, laws among provinces wouldn´t differ or all provinces should have extremely protective laws. We will see that that is not the case in the Argentinean context. The index contemplates how domestic violence provincial laws differ in their definition of a) the injuries to be protected, b) the type of victims c) who, d) where and e) how claims can be advanced, f) the measures judges decide, g) whether laws indicate which bureaucratic office is responsible for enforcement and h) where should funding for implementation come from. While in some provinces laws 48

http://www.lacasadelencuentro.com.ar/femicidios.html). Equipo Latinoamericano de Justicia y Género; Informe sobre Género y Derechos Humanos (2005-2008), Buenos Aires. 2009, p. 311. 50 Equipo Latinoamericano de Justicia y Género Violencia familiar. Aportes para la discusión de Políticas Publicas. Buenos Aires 2009, p.16. 51 Some provincial laws explicitly acknowledge that they result from incorporation in article 75,22 of the 1994 Constitution of International Conventions. They explicitly refer to CEDAW and to laws ratifying the Interamerican Convention regarding the Rights of Children and the prevention of violence against women (Convención de Belem do Pará). 52 Annex includes the data base I collected in order to elaborate the index of legal protection. 49

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24

protect physical and psychological damages in others they also include property harms. While in some provinces, only individuals related by marriage or by “de facto unions” can advance claims in others claims can be advance by separated, divorced, or engaged individuals. Provincial laws also differ in the type of requirements they demand to file claims. Some provinces allow social workers or other legal representatives to file claims on behalf of all type of victims while others allow third party intervention only when victims are infants or incapacitated adults. Other aspects where laws differ are the number and type of precautionary measures available for judges, on the mandatory character of mediation and of the psychological treatment of the family group. And laws also vary in the way they provide funds and allocate bureaucratic responsibilities for enforcement. The following table outlines the universe of laws analyzed and summarizes the degree of protection of the different legal texts. To elaborate this comparison I considered 37 laws and decrees sanctioned between 1988 and 2009, 35 of those measures were approved by provincial authorities and 2 of them by the National Legislature.

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25 Table 2: Legal Protection by Dimensions of the Domestic Violence Laws (by jurisdiction) Law and Approval Date Provinces

Protected Group

Protected Harm

Places to advance Claims

Who can advance a claim

Precaution ary Measures Available

Mandatory mediation

Implement ation and Budget

Total Protection (i) (30,5/11,5)

Total Protection Standarized (100/27)

Law

Approval Date

Nación

26.485 "Integral Protectión Law…”

2009- 14th April

5

4

6

4,5

9

1

1

30,5

100

San Juan

7.943

2009- 14th January

5

4

7

3,5

7

1

2

29,5

97

Misiones

4.405

2007- 29th November

5

4

5

5

8

1

1

29

95

CABA (Modified)

Aggregate Modified (ii)

2005- 28th April

5

3

6

4

8

1

1,5

28,5

93

Córdoba

9.283

2006- 13th March

5

4

4

3

8

1

1

26

85

La Pampa

Aggregate

2000- 28th December

5

4

2

4,5

7

0

2

24,5

80

Buenos Aires

12.569

2001- 2nd January

5

3

4

4

7

1

0

24

79

Santa Fe

11.529

1997- 27th November

5

4

6

4

4

0

1

24

79

CABA

Aggregate (iii)

2005- 28th April

5

3

1

4

8

1

1,5

23,5

77

Jujuy

5.107

1998- 22nd December

4

3

3

4

6

0

2

22

72

Neuquén

Aggregate

1997- 20th June

3

4

3

2,5

6

1

1

20,5

67

Entre Ríos

9.198

1999- 10th February

3

2

4

3

5

1

2

20

66

Salta

7.403

2006- 1st August

5

4

3

2

5

0

1

20

66

Formosa

Aggregate

1996- 27th June

3

3

4,5

3

5

0

1

19,5

64

Chubut

Aggregate

1998- 21st September

3

2

5,5

2,5

5

0

1

19

62

Río Negro

3.040

1996- 16th October

3

3

2

2,5

5

1

1

17,5

57

La Rioja

6.580

1998- 22nd October

2

4

3

2

5

0

1

17

56

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Legal Protection by Dimensions of the Domestic Violence Laws (by jurisdiction) Law and Approval Date Provinces

Protected Group

Protected Harm

Places to advance Claims

Who can advance a claim

Precaution ary Measures Available

Mandatory mediation

Implement ation and Budget

Total Protection (i) (30,5/11,5)

Total Protection Standarized (100/27)

Law

Approval Date

Tucumán

Aggregate

2003- 16th January

5

2

1

2

5

1

1

17

56

Chaco

Aggregate

1996- 12th December

3

2

3

2

3

0

3

16

52

Corrientes

Aggregate

2004- 16th June

3

2

1,5

1,5

4

1

2

15

49

San Luis

I-0009-2004 (5477 “R”)

2004- 23rd April

3

2

2,5

2

5

0

0

14,5

48

Nación

24.417 "Protection Against Familiar Violence”

1994- 28th December

3

2

2

2

4

0

1

14

46

Mendoza

6.672

1999- 20th April

3

3

2

2

3

1

14

46

Tierra del Fuego

39

1992- 14th October

3

2

1

2

5

0

1

14

46

Santiago del Estero

6.308

1996- 16th July

3

2

2

1,5

4

0

0

12,5

41

Santa Cruz

2.466

1997- 29th July

3

2

1

1

4

0

1

12

39

Catamarca

4.943

1998- 15th April

0,5

2

2

2

5

0

0

11,5

38

(i) Total Level of achieved protection sums the different provincial laws and decrees sanctioned in each jurisdiction. The date refers to the last modification approved. (ii) CABA Modified assumes that the denounce places contemplated in the National Integral Law are available for the citizens of Ciudad de Buenos Aires. (iii) CABA Accumulated considers that the judicial and police authorities created by the reformed 1994 Constitution are not in place yet. Thus victims in CABA must direct claims to Federal Courts.

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Table 3: Legal Protection by Dimensions of Domestic Violence Laws

Average Standard Deviation Max Protection Minimun Protection Difference between Max and Min # of Provincial Laws under Average Note:

Protected Group

Protected Harm

Places to advance Claims

Who can advance a claim

Precautionary Measures Available

Mandatory Mediation

Implementation and Budget

Level of Total Protection

3.72

2.93

3.22

2.81

5.56

0.48

1.15

19.83

1.21

0.87

1.77

1.09

1.65

0.51

0.72

5.73

5.00

4.00

7.00

5.00

9.00

1.00

3.00

30.50

0.50

2.00

1.00

1.00

3.00

0.00

0.00

11.50

4.50

2.00

6.00

4.00

6.00

1.00

3.00

19.00

15

11

19

19

17

12

19

12

Total Number of Laws considered 37 (35 provincial laws and 2 Federal laws) Laws and Decree were approved between 1988 and 2009.

Figure 1: Total Protection Level by jurisdiction

35

Protection Level

30 25 20 15 10 5

CA BA

N Sa ac ió n n (M Mi s Juan od i on ific es Có a do r ) Bu La P dob en am a os pa Sa Air e nt s a CA Fe BA Ne Juju En u qu y t re én Río Fo Salt s rm a Ch o sa Rí o ub N ut La e gro Tu Rio cu ja m Co Ch án rri ac o e Sa ntes nL Tie M Na ui s Sa rr e c ió n t a d nd n ia g e o o d l Fu z a e e Sa l Est go n e Ca ta C ro t am ru ar z ca

0

Provinces

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Table

4:

Legal

Region

Protection

Average total Protection

Standard deviation

Average total Protection

Standard deviation

16.67 19.9 19.33 25.4 (*) 16.6

4.095 5.527 8.808 1.917 3.525

16.67 19.9 19.33 24.4 (**) 16.6

4.095 5.527 8.808 0.962 3.525

Northeast Northwest Cuyo Pampean Region Patagonia

Region

by

(*) It includes CABA 2009. (**) It includes CABA 2005.

Figure 2: Legal Protection by Region

Average Total Protection

30

Noroeste (Jujuy, Salta, La Rioja, Tucumán, Catamarca, y Santiago del Estero)

25

Noreste (Formosa, Chaco, Misiones, Corrientes y Entre Ríos)

20 15

Cuyo (San Juan, San Luis y Mendoza)

10

R.Pampeana ( Córdoba, Santa Fé, Buenos Aires, CABA y La Pampa )

5 0

Regions

Patagonia (Neuquén, Río Negro, Chubut, Santa Cruz y Tierra del Fuego)

The preceding tables confirm that in Argentina the degree of protection of the domestic violence laws vary significantly among provinces and regions. The protection index shows that the protection level of provincial laws ranges from 29,5 (San Juan) to 11,5 (Catamarca). The standard deviation in the protection level of these laws is 5.73 and 13 provincial laws protect less than the current national protection average (Salta, Formosa, Chubut, Rio Negro, La Rioja, Tucumán, Chaco, Corrientes, San Luis, Mendoza, Tierra del Fuego, Santiago del Estero,

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Santa Cruz, and Catamarca). The results also show that even if we were not to consider the last national law, due to its relatively recent approval (2009), there are still three provinces that protect less than the floor established in 1994 by the first national law (Santiago del Estero, Santa Cruz and Catamarca). Eight jurisdictions approved more than one law and in all cases these modifications widen the protective scope of the previous law and surpassed the floor established by the 1994 Federal law. However, even after these changes, laws in five provinces were under the 2009 national protection average (Chaco, Chubut, Corrientes, Formosa, Tucumán). Table 4 shows not only that protection among regions vary but also that in some regions laws are more similar than in others. In fact, the Pampean Region not only has the more protective laws but also the protection levels of the provincial laws are relatively similar. That is not the case in the other regions, where protection levels are lower, and each region shows high variation in the protection levels of each of its provinces. Indeed, the high standard deviation found in each region seems to indicate that variations in protection levels are associated with internal provincial factors rather than with regional ones. Data then, shows that provincial legal autonomy of the Argentinean federalism not only enables differentiation in the protective scope of legal promises but that it is also producing it. Beyond the specific reasons that explain those differences among provinces, a first important finding is that provincial legal autonomy is not irrelevant: it enables inequality among provincial laws and it produces inequality in the contents of laws. Which legal promises regulated included in the provincial domestic violence laws converge across provinces? And which ones diverge? As Table 3 shows protection of provincial laws varies the most in regard to the number and variety of places where victims can address denounces (Standard Deviation. 1.77). The number and variety of places to make claims is a relevant aspect of the protective ability of a law in so far it indicates the difficulties victims confront to advance their claims and to have their rights addressed. If the number and varieties of agencies to advance denounces is low, the victims´ ability to demand rights is significantly reduced. Thus, even if the law contemplates an ample number of damages or a variety of groups, if the places to advance claims are low, those other protective

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30

aspects of the law can end up cancelled. La Pampa particularly illustrates this situation (see table 2 and Annex 1.) Its law at the same time that protects a wide group and relatively ample number of damages provides few places where victims can address those demands. Although other provincial laws provide the same number or even fewer places to advance denounces, the La Pampa case is worth since it shows how dimensions in a legal text interact and can cancel its apparent ample protective scope. Information also shows that most laws establish that family judges are to take claims (20) and that only 8 contemplate that claims can be made in any type of Court. Table 5: Places for Dennounces

Number of Laws

Family Judge

Public Minisrtr

Lay Judge Juez de Paz

Any Court

Police Station

Lower Court Judge

Minor Judge

Public Defender

Prosecutor

20

11

11

8

7

7

5

4

4

Source: Elaborated based on data on Annex

The other aspect where provincial laws vary the most is the number and menu of precautionary measures judges can advance (Table 6). Domestic violence laws enable judges to issue preventive measures they can use in the emergency of the situation to stop the continuation of a possible irreversible harms. Thus, which measures are available is particularly relevant for the analysis of the protection scope of a law. The distribution of precautionary measures among provinces show that almost all provincial laws provide judges with instruments to decide restriction home orders, restriction of access to workplaces and schools,

orders to

reintegrate victims to their homes and to decide food quotas and parental responsibility of children. However, only half of them provide judges with instruments to restrict access to other places where victims go or to decide someone to take custody of the victims. And only two laws provide judges with the ability to place victims in shelters.

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31

Table 6: Precautionary Measures Available

Home Restriction Order

Workplace and School Restriction

Victim access to Home

Alimony, Parental Responsability

Restriction Order from other places

Assignment of Protective Care

Restriction from Buying Arms

Placement in Shelters

Other decided by the judge

28

28

27

25

13

13

3

2

7

Number of Laws

Source: Elaborated based on data on Annex

In regard to the Groups and Harms protected, data shows that most provinces protect basically two types of harms (physical and psychological) (Table 7) and two types of victims (married couples and civic unions) (Table 8). The other harms and victims that can be protected show a significant lower presence. Table 7: Protected Harm Physical

Psycological

Sexual

Patrimonial

31

30

16

9

Number of Laws

Table 8: Protected Group or Victim

Number of Laws

Member of a Married Couple

Civli Unions

De Facto Couples

Fiancees

Separated

Other victims decided by the judge

29

29

18

12

11

10

Table 9 indicates whether provincial laws include enforcement and budget provisions. The inclusion of these dimensions in the laws is considered a sign of the commitment of provincial authorities have with its enforcement. It is assumed that if the intention of the legislators was just to pay lip service to a “good cause”, laws will not include enforcement and budgeting provisions that might tide the hands of public authorities in the future. Analysis shows that while 88% of the laws

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32

mention some bureaucratic agency involved in enforcement only 34% laws indicate where public moneys for its enforcement should come from. Table 9: Presence of Mediation, Enforcement, and Budget Provisions in Laws Presence of Mediation Provisions Yes

No

Banned

Presence of Enforcement Provisions Yes No

Presence of Budget Provisions Yes

No

Number of Laws specifying provision

15

12

1

28

4

10

19

% of Laws specifying provision

54

43

4

88

12

34

66

Number of Laws considered

28

32

29

Finally, Figure 3 indicates that the protection level is significantly correlated with the approval date of the law. Of course diffusion theories can help to explain the wave of approval and the increasing protective character of the succeeding laws53. Subnational authorities had been invited in the National Law approved in 1994 to sanction their own laws. And some provinces, particularly those highly dependent from fiscal transfers, may have had incentives to swiftly meet the national government request that, in turn, was interested in showing at international forums that it was complying with the CEDAW agreements it had signed. However, Figure 3 also shows 1) that even after the 1994 national law had been approved three provinces (Santa Cruz, Santiago del Estero and Catamarca) sanctioned local laws that protected less than the national one, and 2) that even after some provinces started to approve laws more protective than the national one, others such as Tucumán, Corrientes, San Luis and Salta approved late laws that were significantly less protective. Why not all provincial laws approved after the 1994 national one promise to protect the same or more than that landmark? If legal promises were immaterial, even in federalisms with high legislative and judicial

53

See Weyland Kurt; “Theories of Policy Diffusion: Lessons from Latin American Pension Reform” in World Politics, (57, 2) 2005.

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33

autonomy, the contents of legal promises should have converged or all jurisdictions ought to have highly protective laws. The evidence shows that that was not the case. Differences in the protection level of the laws approved after 1994 indicate: 1) That the content of legal promises matters. If they wouldn´t all provincial authorities would have approved more protective ones or laws, that at least, mimic the national one. 2) That emulation, learning or external pressures are not the only drivers of legal diffusion. Internal provincial dimensions, such as local political competition and strength of local social actors, should enter the picture to explain the pace and unequal protective scope of the subnational laws. Figure 3: Degree of Legal Protection by Date of Approval of Laws

5.

Concluding Remarks

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The goal of this paper was to evaluate whether federalism can have an impact on the way rights are protected across jurisdictions. Although the paper does not dismiss the impact that other variables (i.e. social endowments and local political competition) may have on the unequal protection of rights, it argues that the specific institutional design of federalism cannot be disregarded. Institutional varieties of federalism determine the local authorities’ legislative and judicial autonomy and in turn how rights are defined and enforced across the territory. The paper also proposes a general framework to analyze the relationship between federalism and inequality in right protection. This framework contends that in federal contexts, right protection varies due to the legislative and judicial competence of local authorities but also because these competences allow the workings of the actors´ social and political endowments in the distribution of legal norms, and of the financial and bureaucratic resources. And that how these resources end up defined in each jurisdiction affect in turn how rights are enforced in each jurisdiction. In federal contexts with high legislative and judicial autonomy the result is unequal legal outcomes and inequality in right protection among jurisdictions. In particular, the paper analyzes the impact of federalism on the contents of domestic violence provincial laws across Argentinean provinces. Although differences in right protection have many sources, inequity starts with differences in the contents of the rights provincial states promise to protect. Differences in legal promises indicate what local states promise and the rights local actors are entitled to claim. Provinces promised to protect different harms, different type of victims and with different instruments.

The paper also shows that the precautionary

measures judges can decide vary and that the budgetary commitments provincial states make differ. The conclusion is that in the Argentinean case legal promises vary significantly across jurisdictions. Given the policy impact that legislative and judicial autonomy of provincial authorities can have in the distribution of rights, it follows that future studies of federalism must consider not only how fiscal powers are distributed but also how legislative and judicial competences between central and local authorities are

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35

allocated. When federal legislative and judicial exclusive competences are low and shared or residual provincial competences are high, as is the case in Argentina, variations in the content of rights and in enforcement will be more likely. Results in the Argentinean case confirm this; provinces show high variation in the content of their legal promises. Analysis of the differences in legal protection is based on an index that measures the protective scope of 35 provincial laws across seven dimensions. The index shows that the legal protection of domestic violence laws across the Argentinean provinces ranges from 29.5 (San Juan) to 11.5 (Catamarca). Thirteen provinces protect less than the national protection average. Data also shows that when the specific features of the different provincial laws are considered, the Federal legislation does not always hold as the protective floor. Indeed, three provinces have laws that protect less than the floor established by the 1994 Federal law. Although the protective scope of the provincial laws tended to increase with time, there are also late laws (San Luis, Corrientes, and Tucuman) that show relatively low levels of protection. It should also be mentioned that provincial UBN (unsatisfied basic needs) was not related to the protection levels achieved by each province. And although the Pampean region appears to have the more protective laws and less variation among their provinces, the high standard deviation found in protection level of the other regions indicates that variation is due to internal provincial factors rather than to regional ones. Provincial laws diverge the most in relation to the number and variety of places where victims can address denounces and to the number and menu of measures judges are entitled to advance. Three final comments. One relates to the relevance that variation in legal protection has for the analysis of inequality. These findings indicate that a forgotten dimension in the analysis of inequality is the impact that federalist arrangements have on welfare and on access to rights, and justice. And they also highlight that these analysis should consider how income inequality might be intensified or weakened by differential access and distribution to legal rights. The second comment relates to the political relevance that distribution of rights may have for local authorities. Recent studies of federalism in the region

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36

have shown the impact the distribution of fiscal powers has on the relationship between central and local authorities. These studies also show how this relationship shapes the economic goods governors allocate at the local level. The findings of this research unveil another tool subnational authorities have. Whether they use it and how, depends on some other factors that are analyzed somewhere else. However, the study shows that provincial authorities command another instrument: they can distribute and manage symbolic goods. Finally, variations in the levels of legal protection among jurisdictions indicate not only that legal promises are politically negotiated but that they also matter. If legal promises were immaterial, even in federalisms with high legislative autonomy, the contents of legal promises should converge or all jurisdictions ought to have highly protective laws. The evidence shows that that is not the case. Thus, it should be concluded that because the content of legal promises matters, provincial authorities can use them to make policy, to enlarge coalitions and to appease oppositions.

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37 Appendix 1: Level of Total Protection by jurisdiction Law and Approval Year Provinces

Nación

Level of Total Protection 30,5 – 11,5

Law

Approval Year

Sanctioned

24.417

1994

1996

14

2010

30,5

Nación

26.485

2009

Buenos Aires

12.569

2001

24

Catamarca

4.943

1998

11,5

Chaco

4.175

1995

12

Chaco

4.377

1996

Chubut

4.118

1995

18

Chubut

4.405

1998

7

CABA

1.265

2004

22,5

CABA

1.688

2005

10

Córdoba

9.283

2006

26

Corrientes

5.019

1995

1998

13

Corrientes

5.020

1995

1999

2,5

Corrientes

5.464

2004

3,5

Entre Ríos

9.198

1999

20

Formosa

1.160

1995

12

Formosa

1.191

1996

18

Jujuy

5.107

1998

La Pampa

1.081

1988

2

La Pampa

1.327

1991

2

La Pampa

1.333

1991

2 22,5

DECREE 620/97

2001

9

22

La Pampa

1.919

2000

La Rioja

6.580

1998

Mendoza

6.672

1999

Misiones

4.405

2007

2008

29

Neuquén

2.152

1995

1998

7

Neuquén

2.212

1997

1999

18

2003

17,5

1999

17 14

Río Negro

3.040

1996

Salta

7.403

2006

20

San Juan

7.943

2009

29,5

San Luis

I-0009-2004 (5477 “R”)

2004

14,5

Santa Cruz

2.466

1997

12

Santa Fe

11.529

1997

2001

24

6.308

1996

12,5

39

1992

14

Tucumán

7.028

2000

5

Tucumán

7.264

2003

17

Santiago del Estero Tierra del Fuego

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38 Appendix 2: Protected Group/ Grupo Protegido Law and Approval Year

Protected Group/ Grupo Protegido

Provinces

“De facto unions”

Fiancees

Separated

Other victims decided by the judge x

Level of Total Protection 5 – 0,5

Law

Approval Year

Marriage

Civil Union

Nación Nación Buenos Aires

24.417 26.485

1994 2009

x x

x x

x

x

x

3 5

12.569

2001

x

x

x

x

x

5

Catamarca

4.943

1998

Chaco Chaco Chubut Chubut CABA CABA Córdoba Corrientes Corrientes Corrientes Entre Ríos Formosa Formosa Jujuy La Pampa La Pampa La Pampa La Pampa

4.175 4.377 4.118 4.405 1.265 1.688 9.283 5.019 5.020 5.464 9.198 1.160 1.191 5.107 1.081 1.327 1.333 1.919

1995 1996 1995 1998 2004 2005 2006 1995 1995 2004 1999 1995 1996 1998 1988 1991 1991 2000

x (it does not x

x

3

x

x

x

3

x x x x

x x x x

x x x

x

5 5 5 3

x x x x

x x x x

x

x

x

x

x

x

x

x x x

x x x

x x

La Rioja

6.580

1998

x

Mendoza Misiones Neuquén Neuquén Río Negro Salta San Juan

6.672 4.405 2.152 2.212 3.040 7.403 7.943 I-00092004 (5477 “R”) 2.466 11.529

1999 2007 1995 1997 1996 2006 2009

x x x x x x x

x x x x x x x

2004

x

x

1997 1997

x x

x x

6.308

1996

x

x

39

1992

x

x

x

7.028 7.264

2000 2003

x x

x x

x

Santa Cruz Santa Fe Santiago del Estero Tierra del Fuego Tucumán Tucumán

0,5

x

Only those that show “unequivocal signs of permanence”

San Luis

define the family group)

x

3 3 3 4 0 0 0 5 2

x x x x x x x

x

x

x

?

?

x x

x x

x

3 5 3 3 3 5 5 x

3

x

3 5

x

3

x

3 x

x

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2 5

39 Appendix 3: Protected Damage /Daño Protegido Protected Damage /Daño Protegido Provinces Law Nación Nación Buenos Aires Catamarca Chaco Chaco Chubut Chubut CABA CABA Córdoba Corrientes Corrientes Corrientes Entre Ríos Formosa Formosa Jujuy La Pampa La Pampa La Pampa La Pampa La Rioja Mendoza Misiones Neuquén Neuquén Río Negro Salta San Juan San Luis Santa Cruz Santa Fe Santiago del Estero Tierra del Fuego Tucumán Tucumán

24.417 26.485 12.569 4.943 4.175 4.377 4.118 4.405 1.265 1.688 9.283 5.019 5.020 5.464 9.198 1.160 1.191 5.107 1.081 1.327 1.333 1.919 6.580 6.672 4.405 2.152 2.212 3.040 7.403 7.943 I-0009-2004 (5477 “R”) 2.466 11.529 6.308 39 7.028 7.264

Approval Year

Physical

Psycological

Sexual

Patrimonial

1994 2009 2001 1998 1995 1996 1995 1998 2004 2005 2006 1995 1995 2004 1999 1995 1996 1998 1988 1991 1991 2000 1998 1999 2007 1995 1997 1996 2006 2009

x x x x x x x

x x x x x x x

x x

x

x x x x

x x x x

x x x x

x x x x

x x x x x x x x x

x x x x x

x x x x

x x x

Only abuse

2004

x

x

1997 1997 1996 1992 2000 2003

x x x x x x

x x x x x x

x x x

x

2 4 3 2 2 2 2 3 3 4 2

2 2 3 3

x x

x x x x

x x x

Level Protection 4-2

x x

4 4 3 4 3 2 3 4 4 2

x

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x

2 4 2 2 2 2

Appendix 4: Where to place Claims/Lugares de Denuncia Law and Approval Year Provinces

Where to place Claims/Lugares de Denuncia

Law

Approval Year

Family Judge

Nación

24.417

1994

x

Nación Buenos Aires Catamarca Chaco Chaco Chubut Chubut CABA (3) CABA (3) Córdoba Corrientes Corrientes Corrientes

26.485 12.569 4.943 4.175 4.377 4.118 4.405 1.265 1.688 9.283 5.019 5.020 5.464

2009 2001 1998 1995 1996 1995 1998 2004 2005 2006 1995 1995 2004

Entre Ríos

9.198

1999

Formosa

1.160

1995

x

Formosa

1.191

1996

x

Jujuy La Pampa La Pampa La Pampa La Pampa La Rioja Mendoza Misiones Neuquén Neuquén Río Negro Salta San Juan

5.107 1.081 1.327 1.333 1.919 6.580 6.672 4.405 2.152 2.212 3.040 7.403 7.943 I-00092004 (5477 “R”) 2.466

1998 1988 1991 1991 2000 1998 1999 2007 1995 1997 1996 2006 2009

x

x x

x

x

2004

x

MIDA

x

1997

x

San Luis Santa Cruz

Public Ministry

Police Station

Prosecutor

Lower Court Judge

Lay Judge

2 x x x

x x

x

MIDA (2)

x x

x

x x (MIDA)

x

x

x

x

Civil or Comercial Civil or Comercial

x x

x x

4 1,5

x

4

x

5

x

x

3

x

x x

x

x

2 3 2 5

x

x x x x

3 2 3 7

Civil Chamber

x x

x

x Civil Judge Civil

x

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x

6 4 2 1,5 3 4,5 2 1

x

MIDA

x

x

Public Defender

and disabled people)

x

x x

Minor Judge

x (only children

x x x x x x

Any Court (1)

Level Protection (2) 7-1

2,5 1

41

Provinces SantaFe Santiagodel Estero Tierradel Fuego Tucumán Tucumán

LawandApproval Year Approval Law FamilyJudge Year 11.529 1997 6.308 1996 x 39 1992 7.028 2000 7.264 2003 x

WheretoplaceClaims/LugaresdeDenuncia Public Ministry x

Police LowerCourt AnyCourt Prosecutor Station Judge (1) x x

Minor Judge

Public Defender

Civil Judge

1)AnyCourt:whenaprovinceacceptsthatdenouncescanplacedinanycourt, it isworth5becauseit impliesall otheragencies. 2)MIDAmeansminor,disabledandabsentee, it isworth2,5becauseit impliesthatwhenvictimsareMIDAtheirabilitytoaccessisrestricted. 3)ValuesforCABAconsiderthat thelocal judicial institutionsestablishedbythe1994Constitutionhavenot yetbeencreated.

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Level Protection (2) LayJudge 7-1 6 2 1 1

Appendix 5: Who advance Claims/ Quién Denuncia Law and Approval Year Provinces

Who advance Claims/ Quién Denuncia

Adults

Social Service / Servicio Asistencial

Level Protection 4,5 - 1

Law

Approval Year

Differentiates between minor and adult victims (i)

Nación

24.417

1994

A

x

x (children and disabled people)

Nación

26.485

2009

B

x

x ( only women)

Buenos Aires

12.569

2001

B

x

x

Catamarca

4.943

1998

A

x

x

2

Chaco

4.175

1995

A

x

MIDA

1,5

Chaco

4.377

1996

A

x

x

2

Chubut

4.118

1995

B

x

MIDA

2,5

Chubut

4.405

1998

B

CABA

1.265

2004

B

x

x

CABA

1.688

2005

B

Córdoba

9.283

2006

B

Corrientes

5.019

1995

A

Corrientes

5.020

1995

A

1,5

Corrientes

5.464

2004

A

1,5

Entre Ríos

9.198

1999

A

x

x

Formosa

1.160

1995

A

x

MIDA

Formosa

1.191

1996

A

x

MIDA

Jujuy

5.107

1998

B

x

x

x

La Pampa

1.081

1988

La Pampa

1.327

1991

La Pampa

1.333

1991

La Pampa

1.919

2000

B

x

x

x

La Rioja

6.580

1998

A

x

x

Mendoza

6.672

1999

B

x

Misiones

4.405

2007

B

x

Neuquén

2.152

1995

Neuquén

2.212

1997

Río Negro

3.040

1996

B

x

Salta

7.403

2006

B

x

San Juan

7.943

2009

A

x

Police

Any Citizen

2 x

MIDA

4,5

x

4

x

4 1

x

x

MIDA

3 1,5

MIDA

x

3 MIDA

2 2 4

MIDA

4,5 2 2

X

x

x

5

x (if victim is unabled to denounce)

2 2,5

MIDA

x x

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2 MIDA

3,5

43 Law and Approval Year

Who advance Claims/ Quién Denuncia Social Service / Servicio Asistencial

Law

Approval Year

Differentiates between minor and adult victims (i)

San Luis

I-00092004

2004

B

x

Santa Cruz

2.466

1997

A

x

Santa Fe

11.529

1997

A

x

X

Santiago del Estero Tierra del Fuego

6.308

1996

B

x

MIDA

39

1992

A

x

MIDA

Tucumán

7.028

2000

A

Tucumán

7.264

2003

A

Provinces

Adults

Police

Any Citizen

x

Level Protection 4,5 - 1

2 1

x

x

4 1,5

MIDA

2

family or related

2

i) A counts as 0 because in these cases denounces must be placed by an adult, or by a public agent. These laws do not consider the minors ability to place denounces. B counts as 1 because in these cases minors and disabled are entitled to place denounces by themselves

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Appendix 6: Precautionary Measures Available Provinces

Protective Measures

Law

Nación Nación Buenos Aires Catamarca Chaco Chaco Chubut Chubut CABA CABA Córdoba Corrientes Corrientes Corrientes Entre Ríos Formosa Formosa Jujuy La Pampa La Pampa La Pampa La Pampa La Rioja Mendoza Misiones Neuquén Neuquén Río Negro Salta San Juan San Luis Santa Cruz Santa Fe Santiago del Estero Tierra del Fuego Tucumán Tucumán

Approval Date

Home Restriction Order

Workplace and School Restriction

Restriction Access to Recreational Places

Restriction from buying Arms and Arm Confiscation

Victim Placement in Shelters

Other measures decided by judge

24.417 26.485 12.569 4.943 4.175 4.377 4.118 4.405 1.265 1.688 9.283 5.019 5.020 5.464 9.198 1.160 1.191 5.107 1.081 1.327 1.333 1.919 6.580 6.672 4.405 2.152 2.212 3.040 7.403 7.943 I-0009-2004 (5477 “R”) 2.466 11.529

1994 2009 2000 1998 1995 1996 1995 1998 20042005 2006 1995 1995 2004 1999 1995 1996 1998 1988 1991 1991 2000 1998 1999 2007 1995 1997 1996 2006 2009

x x x x x

x x x x x

x x x

x x x

x x x

x x x

x x

x x

x

x x x x

x x x x

x

x x x x

x x x x

x

x

x

x x x x

x x x x

x

x

2004

x

1997 1997

6.308 39 7.028 7.264

x

x

x x x x x x x x

x x

Rellocation of Victim in Home Address

x

x x

Protective Guard

x x

x

x x x x

x x x

x x

x

Level of Protection

4 9 7 5 3 5 5 8

x x

8 4

x

x x x x

5 4 5 6

X x

x x

x

x

x

x

x

x x x

x x x x

6 5 5 7

x

x

x

x

5

x x

x x

x x

x x

4 4

1996

x

x

x

x

4

1992 2000 2003

x

x

x

x

5

x

x

x x

x

x

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x x

x

x x x x

x x x x x x

x

x

Alimony, and Protection Children of Property Guard

x

7 5 3 8

5

45 Appendix 7: Mandatory Mediation . Implementation and Budgetary Specifications.

Law

Mandatory Mediation

Protection Level

Enforcement Provisions

Budget Provisions

Protection Level

Nación

24.417

Yes

0

Consejo Nacional del Menor y la Familia

No (adm pública)

1

Nación

26.485

Banned

1

Consejo Nacional de la Mujer/Observatorio

Ley de presupuesto anual de la nación

1

Buenos Aires

12.569

No

1

No

No

0

Catamarca

4.943

Yes

0

No

No

0

Chaco

4.175

Yes

0

No

1

Chaco

4.377

Yes, art 8°

2

Chubut

4.118

Yes

0

Servicio de Asistencia a la Víctima del Delito (Only in 3 big cities) law 4.031

No

1

Chubut

4.405

Yes

0

CABA

1.265

No

1

Registro de infractores

No

0,5

CABA

1.688

Dirección de Minoridad y Familia dependiente de la Subsecretaría de Acción Social de la Provincia Programa Provincial de Prevención y Asistencia; Comisión Permanente de Prevención y Asistencia a las Víctimas de la Violencia Familiar Integral a las Víctimas de la Violencia Familiar

Yes, some

Córdoba

9.283

No

1

La Autoridad de Aplicación de la presente Ley es el Ministerio de Justicia y Seguridad

Corrientes

5.019

Yes

0

Yes

Corrientes

5.020

No

1

Corrientes

5.464

Entre Ríos

9.198

No

Formosa

1.160

Formosa

1.191

Jujuy

5.107

La Pampa

1.081

1 Autorízase al Poder Ejecutivo Provincial a realizar las adecuaciones presupuestarias necesarias para el efectivo cumplimiento de la presente Ley.

1

1

Crea el Programa de Prevención y asistencia integral

Aclara de donde deberan salir las partidas presup. Para el programa

2

1

Subsecretaría de Integración Comunitaria

Yes

2

Yes

0

Yes, equipos dentro del PJ y la Dirección de Minoridad y Flia

Yes

0

Comisión Provincial para la Atención Integral de la Violencia Familiar

Yes

2

Yes

Yes

2

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1

Law

Mandatory Mediation

Protection Level

Enforcement Provisions

Budget Provisions

Protection Level

La Pampa

1.327

Yes

Yes

2

La Pampa

1.333

Yes

Yes

2

La Pampa

1.919

Yes

0

La Rioja

6.580

Yes

0

Yes

No

1

Mendoza

6.672

No

1

Misiones

4.405

No

1

Yes

No

1

Neuquén

2.152

Yes

No

1

Neuquén

2.212

No

1

Yes

No

1

Río Negro

3.040

No

1

Yes

No

1

Salta

7.403

Yes

0

Yes

No

1

San Juan

7.943

No

1

Yes

Yes

2

San Luis

I-0009-2004 (5477 “R”)

Yes

0

No

No

0

Santa Cruz

2.466

Yes

0

Yes (Law 2.088)

No

1

Santa Fe

11.529

No

0

Yes

No

1

Santiago del Estero

6.308

Yes

0

No

No

0

Tierra del Fuego

39

Yes

0

Yes, law 35 (1st January 1992)

No

1

Tucumán

7.028

Ministerio de Asuntos Sociales

No

1

Tucumán

7.264

Ministerio de Asuntos Sociales

No

1

No

1

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47 Bibliography:

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 Epp, Charles. The Rights Revolution. Chicago: The University of Chicago Press, 1998  Equipo Latinoamericano de Justicia y Genero; Informe sobre Género y Derechos Humanos (2005-2008), Buenos Aires, 2009  Equipo Latinoamericano de Justicia y Genero Violencia familiar. Aportes para la Discusión de Políticas Públicas. Buenos Aires 2009, p.16  Fenwick, Tracy. “The Institutional Feasibility of National-Local Policy Collaboration: Insights from Brazil and Argentina”. Journal of Politics in Latin America, Vol. 2, No. 2, 2010  Franceschet, Susan. “Explaining Domestic Violence Policy Outcomes in Chile and Argentina” in Latin American Politics and Society, Vol. 52, No. 3, Fall 2010  Frias, Sonia. Measuring Structural Gender Equality in Mexico: A State Level Analysis. Social Indicators Research Vol. 88.( 2008).  Galanter, Marc. "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change" in Law & Society Review, Vol. 9, 1974  Gelli, María Angélica. Constitución de la Nación Argentina. Comentada y Concordada. Tercera Edición Ampliada y Actualizada. La Ley 2005. p. 675  Gervasoni, Carlos. “A Rentier Theory of Subnational Regimes: Fiscal Federalism, Democracy and Authoritarianism in the Argentine Provinces” in World Politics, Vol. 62, No. 2, April 2010  Gibson, Edward (ed). Federalism and Democracy in Latin America. Johns Hopkins University Press, 2004  Gibson, Edward and Calvo, Ernesto. "Federalism and Low Maintenance Constituencies: Territorial Dimensions of Economic Reform in Argentina" in Studies in Comparative International Development, Vol. 35, No. 3, 2000  Giraudy, Agustina. Subnational Undemocratic Regime Continuity After Democratization: Argentina And Mexico In Comparative Perspective. Ph. Dissertation, University of North Carolina, 2009  Gullco, Hernán. “La Suspensión del Juicio a Prueba y el Concepto de Cuestión Federal” in Revista de Derecho Penal y Procesal Penal. Abeledo Perrot No 7, 2008 .  Holmes, Stepehn and Sunstein, Cass. The Cost of Rights: Why Liberty Depends on Taxes. W New York: W. W. Norton & Co., 1999

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49

 Howard, Dick. “Protecting Human Rights in a Federal System” in Tushnet, Mark (ed.) Comparative Constitutional Federalism, Europe and America. Greenwood Press, 1990  Htun, Mala. Sex and the State. Cambridge University Press, 2003  Jones, Mark; Saiegh, Sebastián; Spiller, Pablo and Mariano Tommasi. “Amateur Legislators-Professional Politicians: The Consequences of PartyCentered Electoral Rules in a Federal System” in American Journal of Political Science, Vol. 46, No. 3, 2002  Karch, Andrew and Deufel, Benjamin. "Political Party Competition and Redistribution in the American States" Paper presented at the annual meeting of the The Midwest Political Science Association, Palmer House Hilton, Chicago, Illinois, April 15th, 2004  Larrain, Soledad. “Violencia Doméstica Contra la Mujer en América Latina y el Caribe. Revisión de Dos Décadas de Acción” Documento de la Conferencia Violencia Doméstica en América Latina y el Caribe: Banco Inter-Americano de Desarrollo, Washington, D.C., 1997  Linz, Juan. “Democracia, Multinacionalismo y, Federalismo” in Revista Española de Ciencia Política, Vol. 1, No. 1, 1999  Marcor, Darío and Tcach, César (eds). La invención del peronismo en el interior del país. Universidad Nacional del Litoral, 2003  Oliveros, Virginia and Scherlis, Gerardo. “¿Elecciones concurrentes o elecciones desdobladas? La manipulación de los calendarios electorales en la Argentina, 1983- 2003” in Cheresky, Isidoro and Blanquer, Jean-Michel (eds.). ¿Qué cambió en la política argentina?. Rosario: Homo Sapiens, 2004, p. 179211  PNUD. Aporte para el Desarrollo Humano de la Argentina. La competitividad de las provincias 2002  Ramirez, Fernando. ”El tratamiento de la “violencia doméstica” en los tribunales ordinarios de la Capital Federal. AMJA, 2003  Remmer, Karen and Gélineau, Francois. “Subnational electoral choice: economic and referéndum voting in Argentina (1983-1999)” in Comparative Political Studies, Vol. 36, N°7, 2003  Remmer, Karen and Wibbels, Erik "The subnational politics of economic adjustment.Provincial politics and fiscal performance in Argentina” in Comparative Political Studies, Vol. 33, No. 4, 2000

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 Rodden, Jonathan. “Comparative Federalism and Decentralization: On Meaning and Measurement” in Comparative Politics Vol. 36, Nº 4, p. 481-500, 2004  Souza, Celina. “Federal Republic of Brazil” in Kincaid, John and Tarr, Alan (eds.) Constitutional origins structure and change in Federal Democracies. Mc Gill Queen´s University Press, 2005  Stepan, Alfred. “Federalism and Democracy: Beyond the US Model” in Journal of Democracy, Vol. 10, Nº 4, 1999  Watts, Ronald. Comparing Federal Systems. McGill-Queens University Press, 1999.  Weyland Kurt. Theories of Policy Diffusion: Lessons from Latin American Pension Reform. World Politics. Vol. 57 No 2, (2005)  Wibbels, Erik. Federalism and the Market: Intergovernmental Conflict and Economic Reform in the Developing World. Cambridge University Press, 2005

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