Marco Olivetti (*)

THE SPECIAL ADMINISTRATIVE REGIONS OF THE PRC IN COMPARISON WITH AUTONOMOUS REGIONS MODELS

1. Introduction. - The modern literature of comparative constitutional law and of general theory of the State has always tried to provide a satisfactory explanation for the various forms of autonomy that cannot be included in the classical phenomenon of the federal State.

Already in the final decades of the 19th century the literature on the distribution of political power from the “spatial” point of view underlined that it was impossible to interpret a wide range of phenomena only on the basis of the dichotomy Unitary State/Federal State (leaving aside the phenomenon of the Confederation).

To describe a series of forms of autonomy which included examples such us the position of Iceland within the Danish Kingdom, of Finland within the Russian Empire, of Croatia in the Hungarian monarchy, of the US Federal Territories, of the German territory of Alsace-Lorraine, the Austrian domination in Bosnia Herzegovina, and, after World War I, the autonomy of the Aaland Islands in Finland, of the Memel Territory in Lithuania and of Rutenia in Czechoslovakia, the concepts of “Staatsfragmente” (Fragment of State), Abhängige Länder (Dependent Countries), Autonomous Provinces, and Länder were elaborated by the most authoritative

* Full Professor of Constitutional Law, Law Faculty, University of Foggia, Italy. I would like to thank prof. Christopher Williams of the University of Foggia for the help in revising the text.

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constitutional lawyers of the time (Jellinek1, Redslob2, Kunz3...). These categories included on the one hand States in which the autonomous entities enjoyed competences wider than those recognized to member States within federations (this is the case of Finland between 1808 and 1917 and of Croatia between 1867 and 1918) and on the other hand forms of autonomy where the position of the autonomous entity was clearly weaker than the one granted to a member State within a federation.

After the enactment of the Constitution of the Second Spanish Republic (1931) the concept of regional or regionalized State began to emerge4 and the constitutional literature after World War II has studied extensively this form of State in its variances throughout the world (and in particular in Europe). Yet the attention dedicated to autonomies different from that of Member States of Federations has been of marginal importance if compared to the theory of federalism and it has been explored mainly in the perspective of international law5. Moreover, this literature usually starts from the assumption that the regional State is a form of constitutional arrangement where the autonomy is somewhat less developed than

1 G. JELLINEK, Über Staatsfragmente, Koester, Heidelberg, 1896.2 R. REDSLOB, Abhängige Länder, Veit, Leipzig, 1914.3 J. KUNZ, Die Staatenverbindungen, Kohlhammer, Stuttgart, 1929.4 See, among others, G. AMBROSINI, Un tipo intermedio di Stato tra l’unitario e il

federale, caratterizzato dall’autonomia regionale, in Rivista di Diritto pubblico, 1933, I, p. 93 ff. and ID., Stato ed autonomia regionale nel sistema della cassata monarchia austriaca e dell’attuale repubblica spagnola, in Il Circolo Giuridico di Palermo, 1933, II; some years later those essays were collected in G. AMBROSINI, Autonomia regionale e federalismo, Rome, 1944. The author, professor of Constitutional Law at the University of Palermo, was one of the first commentators of the regional system of the Constitution of the Second Spanish Republic, and after World War II was the President of the Special Committee of the Italian Constitutional Assembly, who drafted the section of the Italian Constitution of 1947 concerning regionalism.

5 See e.g. Y. DINSTEIN (ed.), Models of Autonomy, Transaction Books, New Brunswick-London, 1981; H. HANNUM (ed.), Autonomy, Sovereignty, and Self-Determination. The Accommodation of Conflicting Rights, II ed., University of Pennsylvania Press, Philadelphia, 1990.

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in the federal State or from a mixed consideration of autonomy and federalism (especially in the case of international lawyers).

Of course, this paper will not summarize the main theories concerning federal and regional States, but, starting from some widely accepted assumptions, it will:

(a) recall very briefly the “federal”, “regional”, “centralized” and “confederal” elements that are present in the model of legal regulation of the Chinese Special Administrative Regions;

(b) focus on some specific problems posed by the Basic Laws of the two Regions, in the perspective of the theory of the different forms of autonomy;

(c) draw some tentative conclusions on the nature of the Chinese Special Autonomous Regions of Hong Kong and Macao, in the light of the comparison with other experiences of autonomy of the 19th and 20th centuries.

In so doing, the paper will take into account also the classical theory of federalism6, on the one hand trying to explain why it cannot be totally applied to other forms of autonomy, and on the other trying to use those elements that can be extended beyond the cases of federal states.

2. The Special Administrative Regions of Hong Kong and Macao and the models of territorial distribution of powers. – One of the most interesting features of the Special Administrative Regions, if viewed from a comparative perspective, is the fact that their legal regulation includes elements that are commonly regarded as typical

6 In fact, “China is not a federal State per se; however, the constitutional arrangement between Beijing and Hong Kong bears some similarities to that of federal States” (L. YAHONG, The Central-HKSAR Legislative Relationship: A Constitutional Assessment, in R. WACKS (ed.), The new legal order in Hong Kong, Hong Kong University Press, Hong Kong, 1999, p.164).

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of different models of constitutional arrangements regulating the distribution of power over the territory: federalism, regionalism, unitary-centralized State, confederation of States7.

Limiting this observation only to some more evident features of the two SARs’ legal status, we can realize that:

(a) The most typical element of a federal polity that is incorporated by the Basic Laws is the existence of a double level of government, each of which is complete in the sense that there is a regional legislative, a regional executive and a regional judiciary beside a national (i.e. Chinese) legislative, executive and judiciary system of authorities and that the legislative, executive and judiciary power as a function is divided between the authorities of the two levels (i.e. Chinese and regional). Even though such a distribution does not adopt the rule of the general competence of the regions8, it is clear that the powers of Chinese mainland authorities are confined to specific areas (listed in Annex III) and that the areas delegated to the competence of the two regions are defined quite broadly, in a way that tends to correspond to a general competence;

7 In this sense see also J. CABALTA NABAIS, Região administrativa especial de Macau. Federalismo ou regionalismo?, in Universidade de Macau, Boletim da Facultade de Direito, 2001, p. 23 ff. (espec. p. 32).

8 L. YAHONG, The Central-HKSAR, cit., p. 174-176, explains why and in which sense the residuary powers belong to the centre. However, if not viewed as a consequence of the derivation of powers from the member States, the residuary powers clause is merely a technique (though a very important one) of regulation of the division of powers between the centre and the autonomous entities. It is far less important than the actual division of powers as resulting from the whole set of mechanisms used to divide powers and especially of the content of the lists.

On the one hand the fact that the Italian constitution, as reformed in 2001, includes now a residuary powers clause in favour of the Regions, cannot disguise the fact that the list of legislative competences of the State is very wide and includes all the traditional functions of the State. On the other hand, the fact that the Hong Kong and Macao SARs do not have residuary power is less important than the fact that all the most important functions of a State (with the exception of defence, and, partially, of foreign affairs) are placed in the hand of the Regions.

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(b) The absence of forms of participation in the formation of central decisions is usually an element that distinguishes both the more developed forms of European regionalism (e.g. Italy, Spain, Portugal) and the less recent forms of autonomous entities within a unitary State (Austria 1861-1918, Finland 1809-1917, Memel 1920, etc.9) from the classic federal State. This latter form of State is characterized – from the structural point of view – by two concurring elements: autonomy and participation10, but while the degree of autonomy of the Regions in some regionalized States is often very similar to the autonomy of the member States within federations11, the participation of the regions in executive and legislative central power (i.e. in the exercise of the power pertaining to the central State) is only symbolic12 or totally non-existent. In the case of the Chinese SARs, the central Constitution does not provide for forums or procedures where the regional authorities can participate in the formation of central acts (ordinary or constitutional laws), and thus interact within them and with the central State in order to influence central political decisions;

9 The main exception is that of Croatian autonomy within Hungary between 1868 and 1918.

10 G. SCELLE, Précis des Droit des Gens, Recueil Sirey, Paris, 1932. 11 While both member states and regions usually have legislative and

administrative autonomy in a constitutionally defined list of subjects, the elements over which there are general differences are:

a) the technique of distribution of legislative and administrative powers (residual powers in favour of the State in a regional State – with the exception of Italy after 2001 - , residuary power in favour of the member States in a federation – with the exception of Canada);

b) the fact that Member States also have judicial powers (with the exceptions of Austria and Belgium);

c) the fact that Member States also have constitutional autonomy, while Regions do not.

12 See the Italian Constitution, where such forms of participation are reduced to: a) the power to initiate national laws (art. 121); b) the power to initiate a national referendum, but only in agreement with four other regions (art. 75 and 138); c) participation in the election of the President of the Republic, but only with 58 delegates out of 1000.

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(c) A further “negative” element leads us to assimilate the SARs to the Provinces of a unitary centralized State or to administrative regions within a unitary State (like France or Poland). Both in federal and in regional States (with the decentralization of legislative power), the central Constitution includes clauses regulating the division of competences between the centre and the regions or the member States. We have seen above that such a division does exist in the case of the Chinese SARs, but we must also underline that the central piece of legislation providing for the division of powers is neither a constitutional clause, nor is it included in a constitutional statute13, separate from the central Constitution, but having the same legal force. The only central guarantee of the autonomy of the Chinese SARs at the constitutional level is art. 31 of the Chinese constitution, but this article does not mention (and therefore does not guarantee) the specific powers of the SARs14. Perfectly coherent with the absence of a (central) constitutional guarantee of the spheres of autonomy is the absence of a guarantee of such autonomy by a constitutional Court;

(d) If the picture that I have just outlined gives the idea that the autonomy of the Chinese SARs is partly federal and partly weaker than a federal arrangement, on the other hand the legal regulation of the Chinese SARs includes some aspects that could belong to a mechanism more similar to a confederal equilibrium or to an association of sovereign states. This is indeed the most surprising side of the status of the two SARs, where the promise of a “high degree of autonomy” mentioned in the Sino-British and in

13 This latter is the case of the statutes of the Special regions in Italy, according to art. 116 of the Italian Constitution (both in its original text and in the text amended in 2001 by constitutional law n. 3/2001).

14 See further, section 3.2.6

the Sino-Portuguese joint declarations seems to have been fulfilled. I will mention in this perspective the sort of “wall of separation” that the Basic Laws have built between the central Chinese authorities and the citizens of Hong Kong and Macao and the provisions concerning citizenship, territory and public order. Furthermore, notwithstanding the statement of the Basic Laws that reserves for the centre the regulation of foreign policy15, the two SARs have extensive powers in the field of external affairs that give them a semi-international status, more typical of a quasi-State than of a federated polity.

3. Some remarks on the more interesting aspects of the autonomy of the Chinese SARs. – I will briefly recall some features of the SARs system that can help us to focus on the more original elements of their constitutional regulation. I will analyse certain aspects of the following problems, some of which have already been mentioned in the previous section:

(a) homogeneity and constitutional autonomy;(b) the (central) constitutional foundation of the “high degree of

autonomy” of the two SARs;(c) foreign relations in the SARs;(d) “Citizenship” and Territory;(e) immunity from central legislation;(f) the Chinese State and asymmetrical regulation of the

territorial distribution of powers.

3.1. Macao and Hong Kong and the problem of constitutional homogeneity. An element that characterizes almost all forms of

15 Art. 13 of the Basic Laws of Macao and Hong Kong.7

autonomy and even of confederal unions is the requirement of homogeneity between the centre and the autonomous entities (vertical homogeneity) and of the different entities between them (horizontal homogeneity). Here we will focus only on the first aspect of homogeneity.

Homogeneity can be regarded as a factual precondition of a confederal, federal or regional organization, arguing, for example, that only peoples similar in language, culture, history and religion can be part of a same polity: we find similar statements in authors such as John Stuart Mill16, Charles de Montesquieu17 and James Madison18. But this is not the point of greatest interest in this case, because on the one hand prevailing contemporary political theory tends to understate the importance of this factual homogeneity and to theorize the possibility, and even the desirability, of a multi-ethnic, multi-cultural, multi-religious and multi-national State, and even more so of a federation (the experience of the European Union is a good example in this perspective19). On the other hand the homogeneity of “race”, culture and heritage is to a high degree present in the case of the two SARs (even the difference of language – arising from the use of English in Hong Kong and of Portuguese in Macao – is only partial).

16 J.S. MILL, Considerations on representative government, 1861, pp. 366-367: “to render a federation advisable...there should be a sufficient amount of mutual sympathy among the populations (...). The sympathies available for the purpose are those of race, language, religion and, above all, of political institutions, as conducing most to a feeling of identity of political interest”.

17 C.L. DE SECONDAT, BARON DE MONTESQUIEU, Esprit des lois, 1748, book IX, cap. 2, “Que la Constitution republicaine doit être composée d’états de la même nature, surtout d’Etats republicains”.

18 J. MADISON, n. 43 of the Federalist Papers: “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort than those of a kindred nature”.

19 For a discussion of this point see, among many, F. SCHORKOPF, Homogenität in der Europäischen Union – Ausgestaltung und Gewährleistung durch Art. 6 Abs. 1 und Art. 7 EUV, Duncker & Humblot, Berlin, 2000, and A. PETERS, Elemente einer Theorie der Verfassung Europas, Duncker & Humblot, Berlin, 2001.

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For an analysis of the Chinese Special Administrative Regions it is necessary to take into consideration another profile of homogeneity, regarding it as a legal prescription, as a sollen and not as a sein. In this perspective, homogeneity, within confederal and federal polities, is a federal (or confederal) constitutional clause that establishes criteria suited to limit the constitutional (and therefore legislative, executive and jurisdictional) autonomy of the member States. Such a clause usually requires that the member States and the federation share some common minimal characteristics. As examples of such clauses, we can mention here the “Republican form of government” clause of art. IV, sect. 4, of the US Constitution20 or art. 28 of the German Constitution of 194921, which provides that the German Regions shall have a republican, liberal-democratic and rule-of-law abiding system of government22. The German constitutional literature underlines the difference between the concept of homogeneity and that of uniformity23; therefore the prescription of the federal Constitution is usually construed as regarding only the form of State and not the form of government (but other federal Constitutions regulate also

20 “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on the Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence”.

21 “1. The constitutional order in the member States must conform to the principles of republican, democratic, and social government, based on the rule of law, within the meaning of this Basic Law. In each of the member States, in the Counties and in the municipalities, the people must be represented by a body chosen in universal, direct, free and secret elections. (....). 3. The federation guarantees that the constitutional order of the member States conforms to the basic rights and to the provisions of paragraphs 1 and 2”.

22 See also art. 51 of the Constitution of Switzerland of 1999.23 See e.g. T. MAUNZ, Verfassungshomogenität von Bund und Länder, in P.

KIRCHHOF, J. ISENSEE (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. IV, Beck, Heidelberg, 1990, pp. 443-456; K. VOGELSANG, Art. 28, in K.H. FRIAUF, W. HÖFLING (eds.), Berliner Kommentar zum Grundgesetz, Erich Schmidt Verlag, Berlin, 2000 (IV ed. 2002) and the literature quoted there.

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the form of government of the member States with penetrating and uniform rules24).

We can select three different aspects of the prescription of homogeneity, concerning the form of the State:

(a) homogeneity of the socio-economic structure (e.g. socialist/free market);

(b) homogeneity of the political structure (e.g. liberal-democratic/autocratic);

(c) homogeneity of the regulation of fundamental rights.In the case of the SARs there is a remarkable lack of

homogeneity in each of these three aspects between the mainland and the two regions25.

It could be argued that homogeneity is not prescribed to the Chinese Special Administrative Regions because they do not have constitutional autonomy26. Indeed, homogeneity in a Federation is aimed above all at circumscribing the constitutional autonomy of member States: since the latter is unlimited in principle, the homogeneity clause has the function of harmonizing the federal and the member State legal orders.

But this objection would be only partially right in the analysis of the Chinese SARs. Even though the two regions do not have formal constitutional autonomy, they have autonomy in exercising all

24 This is the case of the Constitutions of Austria (e.g. art. 101), Mexico (art. 115) and Brazil (e.g. art. 28).

25 It could be added, on the other hand, that not only a homogeneity but a sort of uniformity exists between the two SARs on each of the three aspects mentioned above.

26 Clearly, formal constitutional autonomy does not exist, but the question can be posed as to what forms of autonomy in the organization of the political structure can be developed within the framework of the existing Basic Laws.

Indeed there is a partial constitutional autonomy in Macao in the point where the Basic Law allows the Region to modify the system of appointment of the Chief executive after 2009: but annex I, art. 7, leaves the final word to the Standing Committee of the NPC of the PRC.

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functions under the constitutional level (legislative, executive and judicial) within the limits set by the Basic Laws, and, in so doing, they are limited only by the Basic Laws themselves and not by the central Constitution. Therefore, the problem of homogeneity between the two legal orders remains open even without constitutional autonomy27. In the case of the SARs, the lack of homogeneity is not only in some aspects allowed or tolerated, but it is directly imposed on the Regions by their Basic Laws, to the extent that they cannot even reduce or remove it (e.g. by adopting a socialist system)28.

Here lies, in my opinion, the core problem of every attempt to classify the SARs using the models created in the literature relating to the territorial distribution of powers. None of these models and none of existing experience allows for such a difference in political structure, in socio-economic model and in the regulation of fundamental rights between the centre and the autonomous entities like the one provided for by the Hong Kong and Macao Basic Laws. To find similar cases, we have to go back to the European constitutional history of the 19th century. The most interesting example that can be compared with the SARs is the case of the autonomous Grand-Duchy of Finland within the Russian Kingdom between 1809 and 191729. The Czar, the Russian head of State, was also head of State (Grand-Duke) of Finland, but while he ruled Russia as an absolute monarch, he governed Finland as a constitutional king, through a Secretary of State for Finland, a

27 In the case of the SARs, the lack of homogeneity is not only allowed or tolerated, but it is directly imposed on the Regions by their Basic Laws, to the extent that they cannot even reduce or remove it (e.g. by adopting a socialist system).

28 For this remark see E. DO NASCIMIENTO CABRITA, Limites de Naturaleza Internacional e Constitucional a Autonomia da R.A.E.M., in http://www.dsaj.gov.mo/MacaoLaw/pt/Data/prespectiva/issued5/pg5p.htm (1995).

29 But between 1899 and 1905 and again after 1908 the autonomy of Finland was slightly reduced in the framework of the Russification policy adopted in those periods.

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Finnish Senate and a Finnish Parliament30. The other case of lack of homogeneity in the form of State was the Second German Empire (1871-1918) where three republican States (the city States of Hamburg, Bremen and Lübeck) were members of a monarchic federation, composed mainly of kingdoms. Finally, it is also possible to quote some cases of colonial dependency, where the motherland was ruled by a democratic form of State, while the colony was submitted to autocratic rule, or, in the case of some English colonies, to autocratic rule with limited forms of representation. This latter case – among which also Hong Kong before 1997 can be mentioned – is the exact opposite of the present situation of the two SARs, where the mainland is ruled by a single-party system, while the Regions are governed with a semi-democratic arrangement.

Indeed we have also some 20th century examples of lack of homogeneity in the form of State, like the federation of Uganda between 1962 and 1966, where the central State was a republic, while the most important member State (Buganda) was a Monarchy. Today the Malaysian Constitution is another example of this kind: while 9 member States are monarchies, the other 4 have a republican organization. In turn, the Federation has a monarchic form (with the 9 monarchs rotating in the role of federal head of State).

If the Basic Laws do not require homogeneity, but seem even to impose non-homogeneity, the question to be raised is whether – and in which form and direction – the lack of homogeneity can be reduced or increased.

Each of the three above-mentioned dimensions of constitutional homogeneity in a composed State poses interesting problems.

30 J. KUNZ, Die Staatenverbindungen, cit., p. 206.12

(a) As regards the homogeneity of the socio-economic structure, the tendency in the first ten years of the history of the first SAR (Hong Kong) seems to be a reduction in non-homogeneity, but, paradoxically (if we look at this problem from the perspective of the dynamics of federalism), the process is the approach of the mainland towards the “capitalist” model adopted in the two Regions. This has happened not only from the factual point of view (the enormous growth of the Chinese economy and the material and legislative conditions that allow it), but also in formal constitutional law, as the introduction of the protection of private property in the Chinese constitution clearly demonstrates31. In this case the homogenizing effect created by sharing a common political order is working in a way that is the exact opposite of what should happen according to the general tendency of the dynamics of composed States32.

(b) P olitical homogeneity raises the question of the process of democratization in the SARs (33), especially in Hong Kong. While homogeneity is already lacking between the semi-democratic regimes of Hong Kong and Macao on the one hand, and the system of Single Party State ruling in China on the other, the

31 See art. 10, 11 and 13 of the Chinese constitution, as modified in 2004. On this reform see N. SCHULTE-KULKMANN, L. SHIH, S. HEILMANN, Änderungen der Verfassung der Volksrepublik China (2004): Übersetzung und Kommentar, in Verfassung und Recht in Übersee, vol. 37 (2004), p. 345 ss.; Y. WENGUANG, Einführung der Eigentumsgarantie in die Verfassung der VR China, in Verfassung und Recht in Übersee, vol. 38 (2005), p. 391 ff.

32 It would be incorrect to imagine that China is transforming itself, from a constitutional point of view, into a “giant Hong Kong” (see the critique of wishful thinking in this direction in D. CAMPBELL, Economic Ideology and Hong Kong’s Governance After 1997, in R. WACKS (ed.), Hong Kong, China and 1997, Hong Kong University Press, Hong Kong, p. 87 ff.), but this paradoxical view hides some elements of truth.

33 On this complex problem see: O.M. FISS, Hong Kong Democracy, in Columbia Journal of Transnational Law, vol. 36 (1998), p. 493 ff.; L. SHIU-HING, Y. WING-YAT, The Politics of Electoral Reform in Hong Kong, in Commonwealth and Comparative Politics, vol. 39 (2001), n. 1, p. 98 ff.; S. YOUNG, The Meaning of the Right to vote in Hong Kong, in McGill Law Journal/Revue de Droit McGill, vol. 42 (1996-97), p. 649 ff.; OVERHOLT W.H., Hong Kong: The Perils of Semidemocracy, in Journal of Democracy, vol. 12 (2001), n. 4, p. 5 ff.; J.Y.S. CHENG, Hong Kong’s Democrats Stumble, in Journal of Democracy, vol. 16 (2005), n. 1, p. 138 ff.

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democratization process would deepen the difference between the two systems. The experience of federal States usually teaches that radical lack of homogeneity is not tolerable within the same polity. The possibility that also in this respect the homogenization process may work in the direction of assimilating China to Hong Kong, and not vice versa, could be a very original way of working of the dynamic dimension of homogeneity, and it also explains the fears of the government in Beijing.

(c) H omogeneity in the field of fundamental rights usually implies that the centre provides a minimum level guarantee (common to all the components of the federal polity) that can be enriched by the federated entities34. The case of the two SARs is totally different, and the systems of protection of fundamental rights correspond to logics that share almost nothing in common. In this context, art. 23 of the two Basic Laws, and the limitations on some fundamental rights that it might generate, could be read as an instrument for homogenizing (or for reducing the absence of homogeneity) of the regulation of fundamental rights between the mainland and the Special autonomous regions.

3.2. The central constitutional foundation of the autonomy of the SARs. – We have already seen that there is no constitutional foundation of the autonomy of the SARs at the central level. Art. 31 of the Chinese Constitution is of course the constitutional basis for the formation of Special administrative Regions, but in this article there is neither a list of these kind of Regions, nor is the objective situation in which a SAR must be created (these Regions can be

34 See art. 142 of the German Constitution of 1949.14

created “when necessary”) described in a way that can limit the discretionary power of the National People’s Congress.

For the already existing Regions, the wording of art. 31 does not provide a guarantee of existence of the Regions: a law derogating the Basic Laws through which the two SARs have been established would not be unconstitutional35. There is only a constitutional basis for the enactment of autonomy (an enabling clause), but not a constitutional obligation to preserve it: and this is a major difference with federal and even regional states (in the sense of a weaker guarantee for the two SARs).

Clearly, stating that the existence of the SARs is not formally protected does not mean that they can be easily removed: politically, the Basic Laws are documents of central importance and their derogation would alter an important feature of the Chinese State and its “substantial” Constitution.

The same problem of legal foundation from the perspective of Chinese constitutional law concerns the central guarantee of the competences of the Regions: the Chinese Constitution does not include a list of powers of the Regions nor does it list the areas reserved to the centre, as is common in the tradition of regional or federal States. The basis for the division of powers is also from this point of view an ordinary Chinese law, the Basic Law of each Region. But this means that such a Law could be modified in its content without violating the Constitution.

35 The only possible basis for such a judgment in art. 31 would be the provision according to which “The State may establish special administrative regions when necessary”. It would be possible to argue that, when the establishment and the existence of a SAR is necessary, a law derogating the Basic Laws is unconstitutional. But such a way of reasoning would require a judgment from a Constitutional Court with a strong legitimacy and clearly independent from Parliament.

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In this context part of the literature has searched for a more solid foundation for autonomy, working on the nature of the Basic Laws.

A first argument in this direction starts from the Joint Declarations on the basis of which China resumed the exercise of sovereignty over Hong Kong and Macao. The obligation for ordinary Chinese legislation to enact the Macao and Hong Kong Basic Laws lies in two international treaties and here has to be seen the guarantee both for the existence and for the powers of the Regions. It is possible to compare the autonomy of the two SARs with other cases of internationally guaranteed autonomies (the Aaland Islands, Rutenia, the Memel Territory36, the City of Danzig, South Tyrol and the autonomy of the Mosquitos Indians in Nicaragua37), but – leaving aside some very interesting international law profiles38 – usually in those cases there was also a “translation” of the international obligation in a set of domestic law limitations to the discretionary powers of the central Parliament, in order to forbid the national legislature from encroaching on the autonomous entity. This can be done by giving constitutional status to the content of the international treaty39 or by relying on the general position of international treaties in domestic law, if they are recognized as overriding ordinary domestic laws. Therefore the problem is the

36 See Treaty of Paris between France, Britain, Italy and Japan on the one hand and Lithuania on the other of 8.5.1924.

37 See the Anglo-Nicaraguan Treaty of 28.1.1980, and recently art. 180 and 181 of the present Nicaraguan Constitution.

38 E.g. the fact that in some cases an international treaty establishes not only the obligation to grant autonomy to a region, but defines also the content of such autonomy: this was the case of Rutenia and Memel, and it is also the case of Macao and Hong Kong. Sometimes the international agreement also provides for a forum with the competence to resolve disputes arising in the interpretation of autonomy (in the case of the two Chinese SARs, the Sino-British and the Sino-Portuguese Liaison Groups have only consultative powers).

39 This was the case of the autonomy of Rutenia within Czechoslovakia (Constitution of 1920).

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status of such an obligation in Chinese domestic law, and more specifically the relation between such an obligation and a subsequent law conflicting with it. If it could be said that ordinary Chinese laws cannot conflict with previous ordinary law executing international agreements, in this case the Basic Laws could not be derogated by a later ordinary law.

A second argument is to interpret the Basic Laws not simply as ordinary Chinese laws, but as special, or even as constitutional, central laws. Seeing them as “special” laws would maybe allow the exclusion of limitations on regional autonomy from laws not expressly directed to change the Basic Laws, but would not protect them against another special law directly intending to modify or derogate the Basic Law. Recognizing “constitutional” (central) value to the Basic Laws would mean that a derogation or an express modification of the Basic Laws requires a central constitutional amendment. This interpretation would put the guarantee of the two SARs in line with the federal and regional models. But the arguments in favour of this thesis seem to be weak40. Moreover, the present status of Chinese constitutional law, with a single party dominating all the powers of the State, reduces the importance of the qualified majority rules as a difference between constitutional amendment and ordinary laws41.

Even if this last difference (the consequence of the one-party State still dominating the Chinese constitutional system) places the Chinese experience in a context that is not easy to compare with

40 Some arguments on this point are quoted in L. YAHONG, The Central-HKSAR, cit., p. 167 and note 26.

41 Art. 64 of the Chinese Constitution: “(1) Amendments to the Constitution are to be proposed by the Standing Committee of the National People's Congress or by more than one-fifth of the deputies to the National People's Congress and adopted by a majority vote of more than two-thirds of all the deputies to the Congress. (2) Statutes and resolutions are adopted by a majority vote of more than one half of all the deputies to the National People's Congress”.

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that of multiparty States, a similar guarantee of autonomy based on a central ordinary law is not without precedents in comparative constitutional law. British history gives us two useful examples: on the one hand the status of Dominion conferred to the colonies (Canada 1867, Australia 1900, South Africa 1909) was based on ordinary British law; on the other an ordinary law is also at the basis of the regional governments created in Scotland and Wales after 199742. Yet, in the same way in which it was highly improbable that British Parliament could affect the dominions’ legislative autonomy even before their complete independence (the British Parliament did actually adopt laws for Canada on some occasions up to 1982, but always on the request of the Canadian parliament), it seems unlikely today that Westminster could use its powers to derogate Scottish devolved institutions or to reduce their scope. Also in China a convention of the Constitution could arise and evolve in the sense of excluding laws reducing the SARs’ status and powers.

Given this constitutional context, what might be the legal consequence of the adoption by the Chinese National People’s Congress of an ordinary law saying that a regulation included in it does also apply to Macao and/or Hong Kong? Even if we assume – on the basis of the special nature of Basic Laws – that such an ordinary law would be unconstitutional, through which legal instrument could a Special Administrative Region seek protection from a Chinese central judge? Or would a Hong Kong or a Macao judge have the power to strike down directly a Chinese law affecting the autonomy of the Region?43

42 See Scotland Act 1998 and Government of Wales Act 1998.43 J. CHEN, Some reflections on HK’s autonomy, in Hong Kong Law Journal, 24

(1994), p. 177 observes that “there are no institutional mechanisms to enable the Chief Executive of the SAR to challenge the validity of orders or directions issued to him by the PRC State Council even where there are grounds to suspect that such orders or directives may violate the autonomy granted to the SAR by the Basic Law”.

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Neither the Chinese Constitution nor the Basic Laws provide for procedures to resolve disputes about the limits of legislative powers of the mainland and of the SARs, as usually do the Constitutions of federal States as well as of regional States. The absence of a Constitutional Court is compensated for with a supervisory mechanism of regional legislation (but not of the national ones44) which has two features: it is a means of control which has as its standard of decision the Basic Law and not the Chinese Constitution; it is a means of control in which decisional power is given to a political body (the Standing Committee of the National People’s Congress of the Chinese Popular Republic), even if an opinion of a technical body with an advisory function – the Committee on the Basic Law – must be previously requested. A similar case from a comparative perspective is the power of the President of Finland, after the opinion of the Supreme Court, to declare void a law of the Aaland Island Parliament, on the basis of art. 12, par. 3, of the Finnish law on the Aaland Islands of 1920, and the power of the Canadian Lieutenant Governor to disallow provincial laws. A similar power was also conferred to the British Crown in relation to Hong Kong from the letters patent regulating the government of the colony before 1997.

In this way an “informal autonomy” has been preferred by the drafters of the Basic Laws to a legally enforceable autonomy45. Even if the legal guarantee is weaker, this does not inevitably mean – as the other aforementioned examples demonstrate – that the final outcome of this technique will be a diminution of the position of the Special Administrative Regions. It will be the political process and

44 And this recalls the case of Switzerland where there is a system of control of constitutionality of cantonal laws, but not of federal laws.

45 J. CHEN, Some reflections on HK’s autonomy, in Hong Kong Law Journal, 24 (1994).

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the political climate that decide whether the “high degree of autonomy” can be preserved in this way.

3.3. Foreign relations of the SARs. – Chapter VII of both Basic Laws regulates the “foreign relations” of the two SARs, developing the general principles established by art. 13 of both Basic Laws. Chapter VII includes an articulate regulation of this area of policy and a wide sphere of competence for the regions, generally wider than that usually recognized to Member States within federations. We can therefore agree with Hurst Hannum’s opinion, according to which «along with the “one country, two systems” philosophy (...), perhaps the most distinctive feature of the agreement is the extensive authority granted to the Hong Kong SAR in the area of foreign relations and participation in international organizations»46.

It is possible to analyse the regulation included in the Basic Laws distinguishing between the “direct” and “indirect” foreign policy of the Regions.

Indirect foreign policy is the power to participate in the formation and execution of central (in this case Chinese) foreign relations (and, within this, in the negotiations and execution of central international agreements), when interests or competences of the Region are affected. The assumption underlying this form of participation is that central foreign policy and international agreements concluded by the centre affect not only the powers of central authorities, but also those of the Regions or of the federated entities: the “foreign policy” competence of the federation is a “transversal” competence that can interfere with the competences reserved to the federated entities. Therefore, in federal States, the

46 H. HANNUM, Autonomy, Sovereignty, Self-determination. The accommodation of conflicting rights, II ed., University of Pennsylvania Press, Philadelphia, 1996, p. 140.

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participation of federal entities in the formation of federal foreign policy and in the preparation of international agreements is a kind of compensation for the loss of power that they are going to suffer through the agreement.

Direct foreign policy is the power to conclude agreements with States other than China and with member States of foreign federations or with foreign regions, to have “diplomatic” relations with such entities, and to be a member of international organizations. Generally in federal States this power: a) is limited to matters conferred or reserved by the Constitution to the sphere of competence of the member States; b) must be compatible with central foreign policy; c) (the exercise of these powers) must usually be authorized by a central authority (government or parliament). Moreover, in general member States are not directly members of international organizations.

A) As regards indirect foreign policy, the role of the Macao and Hong Kong regions is recognized both in the phase in which the international agreement takes shape and in the phase of its execution.

Art. 135 of the Macao Basic Law and art. 150 of the Hong Kong Basic Law allow representatives of the Government of the Macao and of the Hong Kong SARs to “participate in negotiations at the diplomatic level directly affecting the Region conducted by the Central People’s Government”. From this point of view, the position of the two SARs is similar to many member States within federations and different (in the sense of ensuring a stronger guarantee) from the cases of “Dezentralization durch Länder” and from the regionalized States.

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According to art. 138 of the Macao Basic Law and to art. 153 of the Hong Kong Basic Law the application of international agreements concluded by the PRC to the Macao SAR is not automatic, but must be decided case by case by the Central People’s Government, “after seeking the views of the government of the Region”.

The Regional government has, therefore, the right to be consulted in relation to the application of such agreements, which represent an exception to the general rule of non-application of Chinese law in the Region. The international agreement could be a way for China to intervene in the regional sphere of competence, and the Region has in this case two guarantees: it can participate in the negotiations (though, of course, in a subordinate position) and it must be consulted about the implementation of the agreement in the Region. The exemption of a Region from the implementation in its territory of an international treaty signed by the central State is coherent with the high degree of autonomy granted to Macao and Hong Kong, but it is quite exceptional in a comparative perspective. Usually such a right is not conferred either to Member States of Federations, or to Regions. The only similar case is art. 4 of the Statute of Memel of 1924, where it was established that international treaties signed by Lithuania could be applied in the Memel Territory only if they did not conflict with the Statute of Memel. The guarantee of the Basic Laws does not go so far, but it allows the central and the regional governments to exclude case by case the application of a treaty in a Region.

The Basic Laws do not say whether the execution of the international agreement in the regions is reserved for the regions or may be carried out directly by China, but if we apply the general

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rule of non-application of Chinese Law and of non-interference of Chinese administrative authorities in the regions47, the consequence should be that this matter comes within the competence of the regions.

B) The SARs also have the power to conduct a direct foreign policy. They can:

a) maintain and develop relations with foreign states and regions in fields including “economic, trade, financial and monetary, shipping, communications, tourism, science and technology, and sports fields”48;

b) conclude and implement agreements with foreign states and regions in those fields49;

c) maintain and develop relations with international organizations in those fields50;

d) conclude and implement agreements with international organizations in those fields51;

e) be member of international organizations and international trade agreements such as GATT52;

f) participate in international organizations limited to States in fields affecting the region53;

g) participate in international organizations not limited to states 54;

h) retain its status in international organizations of which China is member 55;

47 Art. 22 of the Macao Basic Law and of the Hong Kong Basic Law.48 Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.49 Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.50 Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.51 Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.52 Art. 112 of the Macao Basic Law and art. 116 of the Hong Kong Basic Law.53 Art. 137.1 of the Macao Basic Law and art. 152.1 of the Hong Kong Basic Law.54 Art. 137.2 of the Macao Basic Law and art. 152.2 of the Hong Kong Basic Law.55 Art. 137.3 of the Macao Basic Law and art. 152.3 of the Hong Kong Basic Law.

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i) retain its status in international organizations of which China is not member56;

j) issue passports for holders of its permanent identity cards and travel documents for persons lawfully residing in the Region57;

k) conclude visa abolition agreements with foreign States and regions58;

l) establish official or semi-official economic and trade missions in foreign countries59;

m) establish foreign consular missions in the Macao SAR60;n) make the appropriate arrangements with foreign States

for reciprocal judicial assistance61;o) m ake the arrangements for the application of Treaties of

which the People’s Republic of China is not a part62.In general the exercise of these powers is not conditioned to an

authorization of the Chinese central government, with the exception of:

f) participation in international organizations limited to States;k) conclusion of visa agreements with foreign States or regions

(in this case art. 140 speaks of assistance or authorization);m) establishment of foreign consular missions in Macao;n) make the appropriate arrangements with foreign States for

reciprocal judicial assistance63;o) make arrangements for the application of Treaties of which

the People’s Republic of China is not a part64.

56 Art. 137.4 of the Macao Basic Law and art. 152.4 of the Hong Kong Basic Law.57 Art. 139 of the Macao Basic Law and art. 154 of the Hong Kong Basic Law.58 Art. 140 of the Macao Basic Law and art. 155 of the Hong Kong Basic Law.59 Art. 141 of the Macao Basic Law and art. 156 of the Hong Kong Basic Law.60 Art. 142 of the Macao Basic Law and art. 157 of the Hong Kong Basic Law.61 Art. 94 of the Macao Basic Law.62 Art. 138.2 of the Macao Basic Law and art. 153.2 of the Hong Kong Basic Law.63 Art. 94 of the Macao Basic Law.64 Art. 138.2 of the Macao Basic Law and art. 153.2 of the Hong Kong Basic Law.

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Furthermore the establishment of official or semi-official economic or trade missions in foreign countries must be reported for the record to the Central People’s government.

The extension of the above-mentioned powers is so impressive that before comparing the foreign relations capability of the two SARs with regions or member States a more radical question must be raised: if full sovereignty, from a legal point of view, is essentially direct subjection to international law and full subjectivity to international law, what makes Macao’s and Hong Kong’s international status different from that of a sovereign State?

The answer to this question can be twofold.As regards what we have called indirect foreign policy, it has to

be noted that Macao and Hong Kong are bound by international agreements signed by China, even against their opinion (they only have the right to be consulted on the application of the Treaty in the Regions). And such agreements must be implemented in the two regions even against the advice of the regional authorities. This is, of course, absolutely the rule for Regions and Member States, but it is worth underlining if we wish to start from the perspective of comparing the international status of the two SARs with sovereign entities.

The semi-sovereign status of the regions is more evident in their direct foreign policy. Here they can behave as sovereign States in a wide range of areas and as a rule they are not obliged to seek any (pre-emptive or subsequent) authorization of the Centre. However, the strategic field of national security65 remains outside the scope of Macao’s and HK’s direct foreign policy capability. Here lies the core of sovereignty, and it is precisely this core that

65 But not of Public order, which is the responsibility of the Regions (art. 14.2 of the Macao Basic Law and of the Hong Kong Basic Law)

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constitutes the “forbidden area” for the authorities of the two regions.

It would be incorrect to state that this huge amount of power gives the Regions full subjectivity in international law, but, on the other hand, the regional competences seem to be very much extended both in indirect as well as in direct foreign policy. In this latter field the authorization power of the centre does not cover the whole of the regional powers. The position of the SARs is more similar to that of a confederated State, retaining a wide degree of international subjectivity, than to that of Regions or member States of Federations.

3.4. Citizenship and freedom of movement. – The regulation included in the two Basic Laws concerning citizenship and the right of establishment in the territory of the two SARs is also highly atypical, in a comparative perspective.

Federations are usually characterized by double citizenship66: each citizen of a member State is also a citizen of the federation and vice versa.

In regionalized States we must make a distinction: normally there is no regional citizenship as a formal distinguished status, but only the condition of resident in a Region (with the consequence of the right to vote in that Region); the situation is different in some cases of asymmetrical and/or special regionalism, in which we can find forms of double citizenship similar to federal ones67. Special

66 Also this rule has some exceptions. The traditional ones are Canada under the B.N.A. Act 1867 and South Africa under its 1909 Constitution (in those cases only federal citizenship was provided for).

67 See art. 8, 9 and 10 of the Statute of the Memel Territory. But in Memel there was a federal-style double citizenship (though this system existed only in Memel and not in the rest of Lithuania): it was not possible to be a Memel citizen without being also a Lithuanian citizen): see J. Kunz, op. cit., p. 234.

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treatment is sometimes provided for to protect small territorial minorities.

The case of Macao and Hong Kong is different. Strictly speaking, there is no double citizenship; on the other hand, residents of the two Regions are not absorbed by Chinese citizenship. Chinese citizens are only a part of Macao and Hong Kong “permanent residents” and this condition – that of permanent resident – is the one forming the “subjective element” (i.e. of the people) of the two regions. At the same time, only Macao and HK residents who are also Chinese citizens have the right to participate in the political life of the Chinese Popular Republic68 and can elect representatives in the National People’s Congress.

Permanent residents of Macao and Hong Kong are the citizens of the two Regions in all but name69. They have the right of abode, they can obtain permanent identity cards and passports from the Regions, they have the right to political participation in the Regions, they can settle in every part of the territory of the Region, leave and re-enter the Region70. Moreover, they are holders of the rights listed in the Basic Laws (but such rights are also recognized to the non-permanent residents of the two Regions).

This condition of permanent resident of the Regions cannot be automatically extended to the Chinese citizens from other provinces, autonomous regions or municipalities under direct control of the Central government71. These latter Chinese citizens can enter the regional territory only if they are authorized and they can settle in the Regions only on the basis of the conditions fixed by

68 Art. 21 of the Macao Basic Law.69 Y. GHAI, The Imperatives of Autonomy: Contradictions of the Basic Law, in J.

CHAN, L. HARRIS (a cura di), Hong Kong’s Constitutional Debates, Hong Kong Law Journal Limited, Hong Kong, 2005, p. 33 speaks of “a kind of quasi-nationality”.

70 Art. 31 of the Hong Kong Basic Law and art. 33 of the Macao Basic Law.71 Art. 22 of the Macao Basic Law.

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the Central People’s Government, after consulting with the government of the affected Region.

Therefore there is neither the freedom of movement nor the freedom of establishment that characterizes federal and regional States. Even if mainland Chinese are not technically aliens in the two Regions, neither do they enjoy the rights of movement and the right of abode typical of full citizenship.

Also in this case the condition of the Region is more similar to that of an associated State than to that of a member State. But even in this case we can identify a weak point: it is the Chinese Central Government – and not the regional government, which only has to be consulted – that has the power to decide on the settlement of a Chinese mainland citizen in the Region.

3.5. Immunity from Chinese law. – It is a strict consequence of the principle of “one country, two systems” that the Chinese legal order does not apply in the territory of the two SARs.

On the one hand it could be said that the federal technique of the general clause in favour of the federated entities is not expressly provided for in the basic Laws. On the other hand – with the exception of emergency periods – Chinese legislation in the regions is confined only to the very limited fields indicated in Annex III and, with the very limited exceptions listed there, “national laws generally do not apply to the SAR”72.

Even more interesting than the horizontal division of powers is the total exclusion of a vertical division of powers within the areas of regional competence: regional laws are not obliged to respect Chinese laws, with the sole exception in their own Basic Laws.

72 L. YAHONG, The Central-HKSAR, cit., 177. See in this essay an analysis of the mechanisms that central government can use to condition SAR legislation.

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Both the vertical and the horizontal separation of the Hong Kong and Macao legal orders from the Chinese legal order is clearly different from the double-level legal system that characterizes federal and regional States, where central laws are directly operative in the Regions or member States in a large lists of fields and where often central legislation conditions the validity of regional or member State legislation73.

If we start from the Basic Laws, the two SARs are even exempted from the obligation to observe the Chinese Constitution: this is a striking difference if compared with the clause that federal States impose on member States, i.e. the obligation to respect the federal Constitution (supremacy clause74). But this element can be better compared with the autonomy granted to some special regions, where the reason for autonomy is to exempt the Regions from some general (constitutional) rules that are not to be applied in the Regions: a good example is the regulation of language in the autonomous Italian province of Alto Adige/SüdTirol. Of course, the exemption from the obligation to observe the central Constitution is much wider, and almost general, in the case of Hong Kong and Macao. This is another consequence of the principle of “one country, two systems”.

The principle underlying the exemption from Chinese legislation and from the obligation to observe the central Constitution is a sort of immunity of the Regions from Chinese legislation. This is a principle typical of the traditional confederations (where there is no direct contact between the confederal authorities and the citizens

73 The most interesting example is that of the former “Rahmengesetzgebung” in the German legal system (before the 2006 constitutional reform), of the “legislazione di principio” in concurrent Italian legislation and of the “legislacion basica” of the Spanish Constitution.

74 See e.g. art. VI sec. 2 of the US Constitution.29

of the confederated States, but all the powers of the Confederation are mediated by the States) and not of modern federal States.

Of course the big question is whether in the Basic Laws there exist mechanisms that could allow for forms of “infiltration” of Chinese legislation into the regional legal orders. This phenomenon has been typical of all federal and regional States and is now very common also in supra-national legal orders like the European Union. The “protective” nature of the autonomy (which has been called “autonomy as separation”75) of Macao and Hong Kong seems to be designed in order to avoid this tendency, and this makes the autonomy of the Special Administrative Regions so atypical. In the system of the Basic Laws the way that the central Chinese government can condition the regional legal orders is by influencing their institutions through the selection of the Chief executive and the important role of the executive power in the machinery of regional government.

4. The asymmetrical position of the SARs as a key to explain their form of autonomy. – Placing the two SARs in a comparative perspective is, as has already been said, highly problematic. This model of autonomy includes elements typical of the regional, the federal, the unitary and the confederal arrangements but it does not correspond to any of these.

Here it is important to underline that the main problem, seen from a federal perspective, is the asymmetrical context in which the SARs’ autonomy is placed: the autonomy that they enjoy is totally different from that recognized to the other autonomous regions, provinces and cities directly subjected to central government in

75 E.g. Y. GHAI, The Imperatives of Autonomy, cit., p. 32.30

which China is divided. If viewed from the Chinese point of view, the SARs are the peak of an asymmetrical regional system.

Such a high degree of asymmetry places the SARs clearly outside the federal model, even given the very different variations that the original American model underwent when it was transplanted into contexts radically different from the original one76. And asymmetry is the most important principle derived from the comparison of different models of autonomy that can be used to interpret the constitutional position of the SARs.

In a comparative perspective, asymmetry indicates different phenomena:

a) the fact that a State is regionalized or federalized only in a part of its territory, while in the rest of the territory it is organized according to the model of a centralized State (this is the case of Portugal after 1976 and of Britain after 1998)77;

b) the fact that a State has different types of composing regions or federated States: this is the case of Italy as regards the

76 On the other hand, asymmetry is more typical of regional arrangements. Clearly some forms of regionalism are now extended over the whole territory of

the State and the autonomy granted to the regions is very similar to that granted to Member States within federations (the difference is usually of degree of autonomy: consider the Spanish and, to a lesser degree, the present Italian situation. Moreover, today the division of a State into administrative regions is ever more frequent, as in France, Poland, the Czech Republic or Peru. In all these cases the regional State is not in principle more asymmetrical than a federal State.

In other respects this is only a part of the history of regionalism and usually it is not in these cases that the Regions enjoy a larger degree of autonomy. Indeed, if we look at the often forgotten pre-history of regionalism – that of the various forms of decentralization of single regions of a State, before and after World War I (the “Dezentralization dürch Länder”), that can be considered as the forerunner of modern regionalism – asymmetry was the rule and not the exception. In many cases of regionalism (a) autonomy was granted only to a part of the federal polity; (b) there are differences in the degree of autonomy of the various entities into which the State is divided. Such asymmetry was present also in the earlier phases of the history of Italian and Spanish regionalism and in all the cases of Dezentralization durch Länder (with the exception of Austria between 1861 and 1918 and of the Chinese Constitution of 1923) before World War II. In some of these cases the powers devolved to the regions were more extensive than in many federal States.

77 But the examples are much more frequent: see Czechoslovakia 1920-38 (for Rutenia), Lithuania after 1920 (for Memel),

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difference between ordinary and special regions, and of Russia with its different subjects of the Federation;

c) the fact that each region has its own level of autonomy, negotiated on a bilateral base with the State: this is the case of Spain (this is indeed a sub-hypothesis of b);

d) the fact that the federation includes federated entities of a different nature, with territorial superposition between them: this is the unique case of Belgian federalism after 1993;

e) the fact that the different States are equal from the point of view of autonomy (i.e. of the competences they can manage) but have different powers in the arenas where the federated entities are represented as states, and therefore, in principle, equally: this is the case of the majority of the federal States that do not recognize equal representation to the federated entities in the second Chamber. But this phenomenon can be of special relevance in a federation where one of the federated entities controls the instruments of political decision of the federation: this was the extraordinary case of Prussia in the Second German Reich (1871-1918).

Of course, it is also possible to speak of asymmetry in an unspecific sense, considering the different influence of some federated entities because of their (demographic78 or geographic) dimension, their economic strength or their political weight; or the different inputs for which the Regions are created in the various parts of a State79; or the different outcomes of policies practised in the fields that are regionalized; or the different guarantee of civil

78 See a comparison in R.L. WATTS, Comparing federal systems, II ed., Mc Gill-Queens University Press, Kingston, 1999, p. 64.

79 We may think of the “hechos diferenciales” in some Spanish regions, or of the economic and cultural reasons that explain respectively the Regions and the Communities in Belgium

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and social rights in the federated entities; or the difference in the organization of political institutions80.

Both in the specific (notably in the one mentioned under b) and in the unspecific sense, the position of Hong Kong and Macao is highly asymmetrical within the Chinese State. And though asymmetry already exists between “ordinary” provinces, cities and autonomous regions, the degree of autonomy granted to the two SARs is asymmetric within a more general asymmetry.

This is – besides the lack of homogeneity – the most important reason why Macao and Hong Kong cannot be considered as federalized territories within a unitary State. Federalism and asymmetry are in general two conflicting ideas, given two essential characteristics of federal arrangements: equality between member States and integral federalization of the territory of the federation81. Indeed, while asymmetry in its unspecific meanings is a physiological consequence of a federal arrangement, asymmetry in some of its specific meanings – notably when it has the form of a partial regionalization of the territory of a State or when it creates differences in the type or in the level of competences granted to the regions – changes the working of some mechanisms of central importance within a Federal State. Here, for example, lies the reason why the Basic Laws cannot be autonomous constitutions: as they divide the competences between the centre and each region and, more generally, define the status of the SARs, they must be central laws82. Here lies also one of the difficulties of imagining

80 We have conceptualized these latter problems under the problem of homogeneity.

81 An exception to this general rule are the federal territories, the federal districts and sometimes dominated territories.

82 The Constitution of Iceland as an autonomous Region of Denmark between 1874 and 1918 was a Danish law, just as the Constitution of Finland as a Russian Region between 1809 and 1917 was a Russian Law.

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central institutions where the SARs are represented: their specialty is more coherent with bilateral forums of negotiations than with institutions where all the autonomous entities of the Chinese State are represented. And here, maybe, we can find a reason for the absence of a central Constitutional Court endowed with the competence to judge the validity of SARs laws: it should have assumed the form of an arbitration Court (like the High Court for Sicily in the years between 1946 and 1952). And asymmetry can also explain the high degree of autonomy recognized to the two SARs: its level – from the point of view of the self-governing powers – is so high that no State in the sense we usually give to this word could survive if its form were generalized to the whole national territory.

For these reasons, although some aspects of Macao’s and Hong Kong’s autonomy can be compared with that of federated entities within Federal States, their asymmetrical position is the origin of the difficulties in placing them fully in a federal context.

For the same reasons the comparison with the autonomy of some regions is easier. Indeed, today we know of some examples of States whose territory is fully regionalized, in some cases with the granting of legislative powers to Regions (Italy, Spain), in other cases only with administrative powers (France, Poland). And while in some of these cases regionalism has its origin in the search for the appropriate scale for governance in some areas of public intervention in the economy, in other cases full regionalization has generated various similarities between these regional States (Italy and Spain) and some (centralized) federal States (Germany, Austria, Switzerland): between these two cases the difference is of quantity and not of quality of autonomy.

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Yet regionalism has in the governance of the economy only one of its two roots: the other is to grant a specific status to ethnically, linguistically or culturally differentiated areas of a State, and often this is a condition to avoid secession (or to thwart secessionist demands) or a condition to allow the incorporation of a previously foreign territory.

It is in this context that we find the concrete cases that can be best compared with the autonomy of the two SARs. Some of these cases belong to the European history of the 19th century (Finland within Russia, Croatia within Hungary), while some others belong to the period between the two World wars (the Memel Territory, Rutenia) or even after the Second World War (the Free Territory of Trieste, South Tyrol, the Basque Country, Catalonia, the Aaland Islands).

In relation to these experiences, the most striking differences lie in the lack of homogeneity of the form of State between the two SARs and the centre, in their immunity from central legislation and in the extension of powers in the sphere of foreign relations.

My proposal is to define the status of Hong Kong and Macao as “separate autonomous regions within an asymmetrical State”. Only by underlining the separation of these entities from the rest of the State under whose sovereignty they are placed and by placing it in the context of an asymmetrical arrangement can we interpret the high degree of autonomy that the Joint Declarations and the two Basic Laws recognize to the two autonomous regions.

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