Resolution of Disputes between the Central and Regional Governments Models in Autonomous Regions.doc

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1、Resolution of Disputes between the Central and Regional Governments: Models in Autonomous RegionsYash Ghai I wish to thank the Research Committee of the HKSAR for a grant to support my work on autonomy.INTRODUCTIONThe Scope of the PaperThe title given to me for my paper assumes that there are models

2、 of dispute settlement in autonomous areas. My own limited research suggests that there are no models, if by that is meant some regularity and pattern, or a desirable system. The rules and institutions for dispute settlement are contingent upon a number of historical, political and legal factors whi

3、ch vary considerably from one autonomous area to another. Thus autonomous areas within a particular part of the world or sharing the same political or legal traditions may have similarity in their dispute settling mechanisms (for example the three Nordic autonomies of land, Greenland and Faeroes exh

4、ibit certain common characteristics). I have not undertaken a search for a model; instead I focus on a comparison of the system in Hong Kong with two other autonomies. I make the comparison with reference to the choices that are available in designing dispute resolution systems, such as mediation, a

5、rbitration or litigation, as well as the broader political context which affect the frequency of disputes (e.g., the method used for distributing or dividing powers), and the likely preference among the methods (e.g., whether the overall system is democratic or authoritarian). Defining Autonomous Re

6、gionsIn this paper, I define an autonomous region as a region which has a substantial measure of autonomy within a state which is essentially unitary. There may be more than one such region in the state. The distinction I draw here is between autonomy and federalismin the latter, self-government is,

7、 as it were, generalised and extends to all regions of the state. This distinction may be important for the study of norms, institutions and procedures for dispute settlement, for in autonomy a region confronts a whole state, clothed in the full strength of its sovereignty, while in a federation reg

8、ions form a sort of trade union with common interests, and thus enhanced in their negotiating position, confront the centre in a state of divided sovereignty. The distinction does not mean that the institutions and procedures that are employed in a federation cannot be used with advantage for region

9、al autonomy. The sovereign centre may, however, be reluctant to adopt some of these institutions and procedures, in order to emphasis the subordinate position of the region (and I will argue that this is the Chinese position regarding Hong Kong), but this is not the case everywhere (and certainly no

10、t in Finland in relation to land, which is one of my sources of comparison). The distinction may also begin to lose some of its salience in federal systems where a particular region may acquire greater power than other regions (as in Quebec) or a self-standing autonomous arrangement may be tied in t

11、o an existing federal system (for which Canada again provides us an example in the aboriginal territory of Nunavat). land IslandsBut in order to achieve a sharper focus I have taken as my points of comparison two examples of regional autonomy in addition to the Hong Kong Special Administrative Regio

12、n. The first, as indicated above, is land, which consists of a series of islands in the Baltic. It has a small population, of just under 30,000 people, but it is a much studied autonomy, being one of the earliest of its kind, and generally considered to be a success The most detailed account in Engl

13、ish of lands autonomous system is Lauri Hannikainen and Frank Horn (eds), Autonomy and Demilitarisation in International Law: The land Islands in a Changing Europe (The Hague: Kluwer Law International, 1996). For a long period it was part of the Swedish empire, and was administered for a substantial

14、 part of that period as an adjunct to Finland. When Sweden lost Finland to Russia in the early part of the 19th century, land went with it, being ruled as a component of the Grand Duchy of Finland. But on the grant of independence to Finland by the Soviet Union in 1917, the people of land staked out

15、 a claim to be re-joined to Sweden, which it looked upon as the motherland. The people of land are Swedish speaking and were afraid of losing their identity in Finland with a different language and flushed with Finnish nationalism after so centuries of external rule. They had the support of Sweden i

16、n their claim, but in the end, in the sensible Nordic style, the dispute was referred to the newly established League of Nations which duly delivered a Solomonic judgment, under which sovereignty over land would be stay with Finland, but with sufficient autonomy for the land people to maintain the S

17、wedish language and culture (and control over natural resources), which would also be declared a neutral, demilitarised zone (to assuage Swedish anxieties of the future military uses of these islands). So in 1921 Finland legislated to implement autonomy for land, the centrepiece of which were the gu

18、arantees worked out under the auspices of the League of Nations. Puerto RicoThe second example is Puerto Rico, located in the Caribbean For a constitutional history of Puerto Rico and its present constitutional relationship with the US, see Jose Trias Monge, Puerto Rico: The Trials of the Oldest Col

19、ony in the World (New Haven: Yale University Press, 1997). The US acquired Puerto Rico in 1898, as spoils of victory in a war with Spain. For the major part of the first 70 years the US ruled it as a colony (euphemistically designated as an unincorporated territory in the language of the US Constitu

20、tion). In 1900 some local representative institutions were set up, but control remained firmly vested in a Governor sent from the US and responsible to Washington. A very large part of the population (which today amounts close to 4 million) are descendants of Spanish settlers, who have maintained th

21、e Spain language and culture, and a significant measure of civil law. In the dying days of the Spanish empire Puerto Ricans had extracted a charter of autonomy from its distant rulers. The sense of identity that the autonomy had facilitated sharpened under the even more alien rule of the US. In 1947

22、 the US agreed to arrangements for the election of a Governor from and by the residents of Puerto Rico. But their struggles for self-government did not bear fruit until 1952, in the global era of decolonisation, when the US agreed to substantial autonomy and a constitution for Puerto Rico drawn by a

23、 constituent assembly elected by its residents and approved in a referendum by them. The exact scope of the autonomy, and Puerto Ricos relations with the US, remained defined in the then much truncated colonial legislation, the Organic Law, now renamed the Federal Relations Act, itself embedded in t

24、he doctrines of the US Constitution under which sovereignty still lay with the US Historical and contemporary constitutional documents are reproduced in Volume I of the Laws of Puerto Rico Annotated (1982) (Orford, New Hampshire: Equity Publishing Corporation). Attempts to amend or repeal the Federa

25、l Relations Act have failed in the face of the opposition in the US Congress, although in practice Puerto Rico enjoys substantial autonomy, greater in some respects than states in the US federation.Comparing Hong Kong with land and Puerto RicoThere are a number of reasons why comparisons between aut

26、onomies granted to land, Puerto Rico and Hong Kong might be instructive. There are several similarities and differences, which help us to explore the distinctiveness of each as well as the commonalities. In all cases, the region is only a minute part of the state, with a very small proportion of the

27、 population. In all cases, sovereignty remains with the centre (the case of land comes closest to shared sovereignty). Linguistic distinctions are fundamental in land and Puerto Rico, and not unimportant in Hong Kong. In Puerto Rico and Hong Kong there are issues of bilingualism of the legal system,

28、 but also the interaction of legal systems with different traditions. In all cases there has been some external involvementin land in the ways described above, in Hong Kong first with the UN dropping the then British colony from its list of colonies, and then with Britains role through the Sino-Brit

29、ish Joint Declaration and the Joint Liaison Group, and Puerto Rico also dropping out of the purview of the UN on achieving self-government in 1952. All three have concepts similar to Hong Kongs right of abode or permanent resident, as a way to emphasis autonomy. In land and Hong Kong the same instru

30、ment serves to establish local institutions and the relationship with the centre, while Puerto Rico makes do with two separate instruments. On a broader front, the economic systems in land and Puerto Rico follow the same principles as on their mainlands, unlike Hong Kong. In the former two, both the

31、 region and the mainland are democratic, with strong traditions of legality, while in the case of Hong Kong, neither part is democratic, and legality is not valued by the mainland government. The relationships in the first two are consensual (although that is not how they originated in land, where t

32、he League of Nations ignored the wishes of the islanders) while in Hong Kong they were imposed. Consequently referenda have played an important role in reaching decisions in the former, unlike in Hong Kong.Not all of these factors and distinctions are immediately relevant to dispute settlement. But

33、I believe that dispute settlement mechanisms should be located in a broad context if we are to understand their dynamics. For example in a non-democratic system, strong legal guarantees of regional autonomy may be less effective than weak legal guarantees in autonomous systems where both the region

34、and the centre are democratically constituted. I therefore make some comparison which go beyond the strictly legal and constitutional dimensions.One special difficulty in comparing Hong Kong-China with other autonomy systems must be noted. In the case of Hong Kong, the purpose of autonomy is unusual

35、. It is to preserve the separate systems of economy, society and politics that characterise the Mainland and Hong Kong. The theme of Hong Kongs Basic Law is separation, rather than integration I have elaborated this point in chapter 4 of my book, Hong Kongs New Constitutional Order: The Resumption o

36、f Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 2nd ed, 1999). . There is less need for common action on economy or political values. land and Puerto Rico share many characteristics with their mainlands: market economy, human rights, legal values, and democracy. There

37、 are many fewer points of intersection and interaction between the systems in Hong Kong and the Mainland than in the other two cases. This minimises disputes between Hong Kong and the Mainland, unlike the other two, which share a common currency and elements of a common tax policies. But precisely b

38、ecause Puerto Rico and land share broadly the same legal tradition as their mainlands, there is large agreement on institutions and procedures for dispute settlement. Thus despite having a larger, or potentially larger, number of inter-governmental disputes, Puerto Rico and land do a better job of h

39、andling and resolving them than is likely to the case in Hong Kong-China relations. The difference in the purpose of Hong Kongs autonomy from others (in Hong Kong the principal purpose being to maintain its market economy as opposed to the protection of linguistic and cultural traditions in others)

40、also means that the kind of disputes are likely to be of a different kind and order. And because of the limited commitment of the PRC to legality and the weakness of its legal institutions, it is likely that the system of dispute resolution would be very different from that in other systemsless gove

41、rned by rules than policy and expediencies of the moment.IMPORTANCE OF DISPUTE RESOLUTION MECHANISMSThe obvious importance is that an autonomy system which does not have an effective mechanism to resolve disputes will shore up difficulties, and is likely to collapse in due course (the breakaway of B

42、angladesh from Pakistan can be explained on the inadequacy of dispute resolution mechanisms). Autonomy systems are normally complex and complicated. They divide public powers between different levels of government. They allocate financial and other resources to regions. They may establish parallel s

43、ystems of courts. Normally these lead to competition between governments for power, resources and jurisdiction. Moreover, since the laws and policies of both sets of governments impact on the people, their welfare depends on a clear understanding of jurisdiction and responsibility. Disputes are boun

44、d to arise. What is undesirable is not, as is some times imagined, the frequency of disputes, but the failure to recognise or deal with them. Disputes which are satisfactorily resolved, or at least managed, since resolution is often too ambitious a goal, help to strength the overall system. Fair pro

45、cedures, which at least provide for some parity between governments, are necessary if dispute resolution is to strengthen unity or at least a sense of common purpose. The rules for dispute resolution in land are generally considered to be fair and this has helped to reconcile land to Finnish soverei

46、gnty, while the perceived unfairness whereby the Standing Committee of the National Peoples Congress will give interpretations of the Basic Law at the behest of the Chief Executive of the HKSAR has reinforced the alienation of many in Hong Kong from the system of (weak) autonomy Several aspects of t

47、his issue are discussed by and from a variety of perspectives in Chan, Fu and Ghai (eds) in Hong Kongs Constitutional Debate: Conflict over Interpretation (Hong Kong: Hong Kong University Press, 2000). Some forms of dispute resolution help to clarify the constitutional framework for the exercise of

48、autonomy and the relations between governments, and thus reduce disputes in the future. In other cases, the mechanism of dispute resolution, especially when affected by the courts, can assist in the development of the framework and thus introduce some flexibility which may be precluded by the diffic

49、ulty of using the formal amendment procedure (the courts may also introduce inflexibility, for the same reasonthis is some times a complaint which Puerto Ricans make against the jurisprudence of the US Supreme Court as regards their relationship to Washington See Monge, note 3 above (himself a former chief justice of Puerto Rico), at pp 44-51.). In relation to Hong Kong, it can be argued that the interpretation by the Standing Committee of the NPC of