The Special Administrative Regions of the PRC in comparison with by Ic4bxY9


									                                             Marco Olivetti (*)

                                  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
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

         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.
         G. JELLINEK, Über Staatsfragmente, Koester, Heidelberg, 1896.
         R. REDSLOB, Abhängige Länder, Veit, Leipzig, 1914.
         J. KUNZ, Die Staatenverbindungen, Kohlhammer, Stuttgart, 1929.
entity was clearly weaker than the one granted to a member State within a
       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 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.

          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.
          See e.g. Y. DINSTEIN (ed.), Models of Autonomy, Transaction Books, New Brunswick-London, 1981; H.                      Formatted: Indent: First line: 0.39"
HANNUM (ed.), Autonomy, Sovereignty, and Self-Determination. The Accommodation of Conflicting Rights, II ed.,
University of Pennsylvania Press, Philadelphia, 1990.
      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 of
different models of constitutional arrangements regulating the distribution of power
over the territory: federalism, regionalism, unitary-centralized State, confederation of
      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                          Formatted: Indent: Left: 0", First line: 0.39",
                                                                                                                  Right: 0"
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

         In fact, “China is not a federal State per se; however, the constitutional arrangement between Beijing   Formatted: Indent: First line: 0.39", Right:
and Hong Kong bears some similarities to that of federal States” (L. YAHONG, The Central-HKSAR Legislative        0"

Relationship: A Constitutional Assessment, in R. WACKS (ed.), The new legal order in Hong Kong, Hong Kong
University Press, Hong Kong, 1999, p.164).
          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).
          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.
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;
      (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;

       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.
          The main exception is that of Croatian autonomy within Hungary between 1868 and 1918.
          G. SCELLE, Précis des Droit des Gens, Recueil Sirey, Paris, 1932.
          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        Formatted: Indent: Left: 0", First line: 0.39",
favour of the State in a regional State – with the exception of Italy after 2001 - , residuary power in favour of   Right: 0"
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
       c)         the fact that Member States also have constitutional autonomy, while Regions do not.
           See the Italian Constitution, where such forms of participation are reduced to: a) the power to          Formatted: Indent: First line: 0.39", Right:
initiate national laws (art. 121); b) the power to initiate a national referendum, but only in agreement with       0"
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.
      (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 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

        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).
        See further, section 3.2.
        Art. 13 of the Basic Laws of Macao and Hong Kong.
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.
                                                                                                               Formatted: Indent: First line: 0.39", Right:

      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 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.

          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”.
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
      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

           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”.
          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”.
          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.
          “The United States shall guarantee to every State in this Union a Republican Form of Government,        Formatted: Indent: First line: 0.39"
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”.
          “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”.
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 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);                             Formatted: Indent: Left: 0", First line: 0.39",
                                                                                                                      Right: 0"
      (b)       homogeneity             of      the       political        structure         (e.g.       liberal-
      (c)       homogeneity of the regulation of fundamental rights.
      In the case of the SARs there is a remarkable lack of homogeneity in each of                                    Formatted: Indent: First line: 0.39", Right:
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.

          See also art. 51 of the Constitution of Switzerland of 1999.                                                Formatted: Indent: First line: 0.39", Right:
          See e.g. T. MAUNZ, Verfassungshomogenität von Bund und Länder, in P. KIRCHHOF, J. ISENSEE (eds.),           0"

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

          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).
          For this remark see E. DO NASCIMIENTO CABRITA, Limites de Naturaleza Internacional e Constitucional a   Formatted: Indent: First line: 0.39"
Autonomia da R.A.E.M., in (1995).
          But between 1899 and 1905 and again after 1908 the autonomy of Finland was slightly reduced in          Formatted: Indent: First line: 0.39", Right:
the framework of the Russification policy adopted in those periods.                                               0"
          J. KUNZ, Die Staatenverbindungen, cit., p. 206.
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.
      (a)   As regards the homogeneity of the socio-economic structure, the tendency                            Formatted: Indent: Left: 0", First line: 0.39",
                                                                                                                Right: 0"
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

       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
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) Political 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
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)     Homogeneity 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.
                                                                                                                        Formatted: Indent: First line: 0.39", Right:

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.
          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.
          On this complex problem see: O.M. FISS, Hong Kong Democracy, in Columbia Journal of Transnational Law,        Formatted: Justified, Indent: First line: 0.39"
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.
           See art. 142 of the German Constitution of 1949.                                                             Formatted: Indent: First line: 0.39"

      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 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                                 Formatted: No underline

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
      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.

         The only possible basis for such a judgment in art. 31 would be the provision according to which      Formatted: Indent: First line: 0.39", Right:
“The State may establish special administrative regions when necessary”. It would be possible to argue that,   0"
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.
      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 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.

         See Treaty of Paris between France, Britain, Italy and Japan on the one hand and Lithuania on the
other of 8.5.1924.
          See the Anglo-Nicaraguan Treaty of 28.1.1980, and recently art. 180 and 181 of the present
Nicaraguan Constitution.
         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).
         This was the case of the autonomy of Rutenia within Czechoslovakia (Constitution of 1920).
      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 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

         Some arguments on this point are quoted in L. YAHONG, The Central-HKSAR, cit., p. 167 and note 26.
         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”.
         See Scotland Act 1998 and Government of Wales Act 1998.
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
      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

         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”.
         And this recalls the case of Switzerland where there is a system of control of constitutionality of
cantonal laws, but not of federal laws.
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 the political
climate that decide whether the “high degree of autonomy” can be preserved in this

       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

        J. CHEN, Some reflections on HK’s autonomy, in Hong Kong Law Journal, 24 (1994).
         H. HANNUM, Autonomy, Sovereignty, Self-determination. The accommodation of conflicting rights, II ed.,
University of Pennsylvania Press, Philadelphia, 1996, p. 140.
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 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.
     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 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    Formatted: Indent: Left: 0", First line: 0.39",
                                                                                          Right: 0"
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 fields ;

        Art. 22 of the Macao Basic Law and of the Hong Kong Basic Law.
        Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.
        Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.
     c)         maintain and develop relations with international organizations in those
fields ;
     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 ;
     i)         retain its status in international organizations of which China is not
     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
     m)         establish foreign consular missions in the Macao SAR60;
     n)         make the appropriate arrangements with foreign States for reciprocal
judicial assistance61;
     o)         make the arrangements for the application of Treaties of which the
People’s Republic of China is not a part62.

        Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.
        Art. 136 of the Macao Basic Law and art. 151 of the Hong Kong Basic Law.
        Art. 112 of the Macao Basic Law and art. 116 of the Hong Kong Basic Law.
        Art. 137.1 of the Macao Basic Law and art. 152.1 of the Hong Kong Basic Law.
        Art. 137.2 of the Macao Basic Law and art. 152.2 of the Hong Kong Basic Law.
        Art. 137.3 of the Macao Basic Law and art. 152.3 of the Hong Kong Basic Law.
        Art. 137.4 of the Macao Basic Law and art. 152.4 of the Hong Kong Basic Law.
        Art. 139 of the Macao Basic Law and art. 154 of the Hong Kong Basic Law.
        Art. 140 of the Macao Basic Law and art. 155 of the Hong Kong Basic Law.
        Art. 141 of the Macao Basic Law and art. 156 of the Hong Kong Basic Law.
        Art. 142 of the Macao Basic Law and art. 157 of the Hong Kong Basic Law.
        Art. 94 of the Macao Basic Law.                                                      Formatted: Indent: First line: 0.39"

     In general the exercise of these powers is not conditioned to an authorization of      Formatted: Indent: First line: 0.39", Right:
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
     o) make arrangements for the application of Treaties of which the People’s
Republic of China is not a part64.
     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
     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.
        Art. 138.2 of the Macao Basic Law and art. 153.2 of the Hong Kong Basic Law.
        Art. 94 of the Macao Basic Law.
        Art. 138.2 of the Macao Basic Law and art. 153.2 of the Hong Kong Basic Law.
      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 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

         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)
         Also this rule has some exceptions. The traditional ones are Canada under the B.N.A. Act 1867 and       Formatted: Indent: First line: 0.39", Right:
South Africa under its 1909 Constitution (in those cases only federal citizenship was provided for).             0"

find forms of double citizenship similar to federal ones67. Special 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 the Central People’s
Government, after consulting with the government of the affected Region.

         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.
         Art. 21 of the Macao Basic Law.                                                                             Formatted: Indent: First line: 0.39"
         Y. GHAI, The Imperatives of Autonomy: Contradictions of the Basic Law, in J. CHAN, L. HARRIS (a cura di),   Formatted: Indent: First line: 0.39", Right:
Hong Kong’s Constitutional Debates, Hong Kong Law Journal Limited, Hong Kong, 2005, p. 33 speaks of “a kind          0"
of quasi-nationality”.
         Art. 31 of the Hong Kong Basic Law and art. 33 of the Macao Basic Law.
         Art. 22 of the Macao Basic Law.
      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
      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.
      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

       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.
often central legislation conditions the validity of regional or member State
      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
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

          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.
          See e.g. art. VI sec. 2 of the US Constitution.
          E.g. Y. GHAI, The Imperatives of Autonomy, cit., p. 32.
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
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

         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.
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                      Formatted: Indent: Left: 0", First line: 0.39",
                                                                                                                Right: 0"
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 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,                              Formatted: Indent: First line: 0.39", Right:
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

          But the examples are much more frequent: see Czechoslovakia 1920-38 (for Rutenia), Lithuania
after 1920 (for Memel),
          See a comparison in R.L. WATTS, Comparing federal systems, II ed., Mc Gill-Queens University Press,
Kingston, 1999, p. 64.
of a State79; or the different outcomes of policies practised in the fields that are
regionalized; or the different guarantee of civil 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 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

         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
         We have conceptualized these latter problems under the problem of homogeneity.
         An exception to this general rule are the federal territories, the federal districts and sometimes
dominated territories.
         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
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
     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.
     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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