《Resolution of Disputes between the Central and Regional Governments Models in Autonomous Regions.doc》由会员分享，可在线阅读，更多相关《Resolution of Disputes between the Central and Regional Governments Models in Autonomous Regions.doc（20页珍藏版）》请在三一文库上搜索。
1、Resolution of Disputes between the Central and Regional Governments: Models in Autonomous Regions Yash Ghai1 INTRODUCTION The Scope of the Paper The title given to me for my paper assumes that there are models of dispute settlement in autonomous areas. My own limited research suggests that there are
2、 no models, if by that is meant some regularity and pattern, or a desirable system. The rules and institutions for dispute settlement are contingent upon a number of historical, political and legal factors which vary considerably from one autonomous area to another. Thus autonomous areas within a pa
3、rticular part of the world or sharing the same political or legal traditions may have similarity in their dispute settling mechanisms (for example the three Nordic autonomies of land, Greenland and Faeroes exhibit certain common characteristics). I have not undertaken a search for a model; instead I
4、 focus on a comparison of the system in Hong Kong with two other autonomies. I make the comparison with reference to the choices that are available in designing dispute resolution systems, such as mediation, arbitration or litigation, as well as the broader political context which affect the frequen
5、cy of disputes (e.g., the method used for distributing or dividing powers), and the likely preference among the methods (e.g., whether the overall system is democratic or authoritarian). Defining Autonomous Regions In this paper, I define an autonomous region as a region which has a substantial meas
6、ure of autonomy within a state which is essentially unitary. There may be more than one such region in the state. The distinction I draw here is between autonomy and federalismin the latter, self-government is, as it were, generalised and extends to all regions of the state. This distinction may be
7、important for the study of norms, institutions and procedures for dispute settlement, for in autonomy a region confronts a whole state, clothed in the full strength of its sovereignty, while in a federation regions form a sort of trade union with common interests, and thus enhanced in their negotiat
8、ing position, confront the centre in a state of divided sovereignty. The distinction does not mean that the institutions and procedures that are employed in a federation cannot be 1 I wish to thank the Research Committee of the HKSAR for a grant to support my work on autonomy. used with advantage fo
9、r regional autonomy. The sovereign centre may, however, be reluctant to adopt some of these institutions and procedures, in order to emphasis the subordinate position of the region (and I will argue that this is the Chinese position regarding Hong Kong), but this is not the case everywhere (and cert
10、ainly not in Finland in relation to land, which is one of my sources of comparison). The distinction may also begin to lose some of its salience in federal systems where a particular region may acquire greater power than other regions (as in Quebec) or a self-standing autonomous arrangement may be t
11、ied in to an existing federal system (for which Canada again provides us an example in the aboriginal territory of Nunavat). land Islands But in order to achieve a sharper focus I have taken as my points of comparison two examples of regional autonomy in addition to the Hong Kong Special Administrat
12、ive Region. The first, as indicated above, is land, which consists of a series of islands in the Baltic. It has a small population, of just under 30,000 people, but it is a much studied autonomy, being one of the earliest of its kind, and generally considered to be a success2. For a long period it w
13、as part of the Swedish empire, and was administered for a substantial part of that period as an adjunct to Finland. When Sweden lost Finland to Russia in the early part of the 19th century, land went with it, being ruled as a component of the Grand Duchy of Finland. But on the grant of independence
14、to Finland by the Soviet Union in 1917, the people of land staked out a claim to be re-joined to Sweden, which it looked upon as the motherland. The people of land are Swedish speaking and were afraid of losing their identity in Finland with a different language and flushed with Finnish nationalism
15、after so centuries of external rule. They had the support of Sweden in their claim, but in the end, in the sensible Nordic style, the dispute was referred to the newly established League of Nations which duly delivered a Solomonic judgment, under which sovereignty over land would be stay with Finlan
16、d, but with sufficient autonomy for the land people to maintain the Swedish language and culture (and control over natural resources), which would also be declared a neutral, demilitarised zone (to assuage Swedish anxieties of the future military uses of these islands). So in 1921 Finland legislated
17、 to implement autonomy for land, the centrepiece of which were the guarantees worked out under the auspices of the League of Nations. 2 The most detailed account in English of lands autonomous system is Lauri Hannikainen and Frank Horn (eds), Autonomy and Demilitarisation in International Law: The l
18、and Islands in a Changing Europe (The Hague: Kluwer Law International, 1996). Puerto Rico The second example is Puerto Rico, located in the Caribbean3. The US acquired Puerto Rico in 1898, as spoils of victory in a war with Spain. For the major part of the first 70 years the US ruled it as a colony
19、(euphemistically designated as an unincorporated territory in the language of the US Constitution). In 1900 some local representative institutions were set up, but control remained firmly vested in a Governor sent from the US and responsible to Washington. A very large part of the population (which
20、today amounts close to 4 million) are descendants of Spanish settlers, who have maintained the Spain language and culture, and a significant measure of civil law. In the dying days of the Spanish empire Puerto Ricans had extracted a charter of autonomy from its distant rulers. The sense of identity
21、that the autonomy had facilitated sharpened under the even more alien rule of the US. In 1947 the US agreed to arrangements for the election of a Governor from and by the residents of Puerto Rico. But their struggles for self- government did not bear fruit until 1952, in the global era of decolonisa
22、tion, when the US agreed to substantial autonomy and a constitution for Puerto Rico drawn by a constituent assembly elected by its residents and approved in a referendum by them. The exact scope of the autonomy, and Puerto Ricos relations with the US, remained defined in the then much truncated colo
23、nial legislation, the Organic Law, now renamed the Federal Relations Act, itself embedded in the doctrines of the US Constitution under which sovereignty still lay with the US4. Attempts to amend or repeal the Federal Relations Act have failed in the face of the opposition in the US Congress, althou
24、gh in practice Puerto Rico enjoys substantial autonomy, greater in some respects than states in the US federation. Comparing Hong Kong with land and Puerto Rico There are a number of reasons why comparisons between autonomies granted to land, Puerto Rico and Hong Kong might be instructive. There are
25、 several similarities and differences, which help us to explore the distinctiveness of each as well as the commonalities. In all cases, the region is only a minute part of the state, with a very small proportion of the population. In all cases, sovereignty remains with the centre (the case of land c
26、omes closest to shared sovereignty). Linguistic distinctions are fundamental in land and Puerto Rico, and not unimportant in Hong Kong. In Puerto Rico and Hong Kong there are issues of bilingualism of the legal system, but also the interaction of legal systems with different traditions. In all cases
27、 there has been some external involvement 3 For a constitutional history of Puerto Rico and its present constitutional relationship with the US, see Jose Trias Monge, Puerto Rico: The Trials of the Oldest Colony in the World (New Haven: Yale University Press, 1997). 4 Historical and contemporary con
28、stitutional documents are reproduced in Volume I of the Laws of Puerto Rico Annotated (1982) (Orford, New Hampshire: Equity Publishing Corporation). in land in the ways described above, in Hong Kong first with the UN dropping the then British colony from its list of colonies, and then with Britains
29、role through the Sino- British Joint Declaration and the Joint Liaison Group, and Puerto Rico also dropping out of the purview of the UN on achieving self-government in 1952. All three have concepts similar to Hong Kongs right of abode or permanent resident, as a way to emphasis autonomy. In land an
30、d Hong Kong the same instrument serves to establish local institutions and the relationship with the centre, while Puerto Rico makes do with two separate instruments. On a broader front, the economic systems in land and Puerto Rico follow the same principles as on their mainlands, unlike Hong Kong.
31、In the former two, both the region and the mainland are democratic, with strong traditions of legality, while in the case of Hong Kong, neither part is democratic, and legality is not valued by the mainland government. The relationships in the first two are consensual (although that is not how they
32、originated in land, where the League of Nations ignored the wishes of the islanders) while in Hong Kong they were imposed. Consequently referenda have played an important role in reaching decisions in the former, unlike in Hong Kong. Not all of these factors and distinctions are immediately relevant
33、 to dispute settlement. But I believe that dispute settlement mechanisms should be located in a broad context if we are to understand their dynamics. For example in a non-democratic system, strong legal guarantees of regional autonomy may be less effective than weak legal guarantees in autonomous sy
34、stems where both the region and the centre are democratically constituted. I therefore make some comparison which go beyond the strictly legal and constitutional dimensions. One special difficulty in comparing Hong Kong-China with other autonomy systems must be noted. In the case of Hong Kong, the p
35、urpose of autonomy is unusual. It is to preserve the separate systems of economy, society and politics that characterise the Mainland and Hong Kong. The theme of Hong Kongs Basic Law is separation, rather than integration5. There is less need for common action on economy or political values. land an
36、d Puerto Rico share many characteristics with their mainlands: market economy, human rights, legal values, and democracy. There are many fewer points of intersection and interaction between the systems in Hong Kong and the Mainland than in the other two cases. This minimises disputes between Hong Ko
37、ng and the Mainland, unlike the other two, which share a common currency and elements of a common tax policies. But precisely because Puerto Rico and land share broadly the same legal tradition as their mainlands, there is large agreement on institutions and procedures for dispute settlement. Thus d
38、espite having a larger, or potentially larger, number of inter-governmental 5 I have elaborated this point in chapter 4 of my book, Hong Kongs New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong University Press, 2nd ed, 1999). disputes, Puerto Ric
39、o and land do a better job of handling and resolving them than is likely to the case in Hong Kong-China relations. The difference in the purpose of Hong Kongs autonomy from others (in Hong Kong the principal purpose being to maintain its market economy as opposed to the protection of linguistic and
40、cultural traditions in others) also means that the kind of disputes are likely to be of a different kind and order. And because of the limited commitment of the PRC to legality and the weakness of its legal institutions, it is likely that the system of dispute resolution would be very different from
41、 that in other systemsless governed by rules than policy and expediencies of the moment. IMPORTANCE OF DISPUTE RESOLUTION MECHANISMS The obvious importance is that an autonomy system which does not have an effective mechanism to resolve disputes will shore up difficulties, and is likely to collapse
42、in due course (the breakaway of Bangladesh from Pakistan can be explained on the inadequacy of dispute resolution mechanisms). Autonomy systems are normally complex and complicated. They divide public powers between different levels of government. They allocate financial and other resources to regio
43、ns. They may establish parallel systems of courts. Normally these lead to competition between governments for power, resources and jurisdiction. Moreover, since the laws and policies of both sets of governments impact on the people, their welfare depends on a clear understanding of jurisdiction and
44、responsibility. Disputes are bound to arise. What is undesirable is not, as is some times imagined, the frequency of disputes, but the failure to recognise or deal with them. Disputes which are satisfactorily resolved, or at least managed, since resolution is often too ambitious a goal, help to stre
45、ngth the overall system. Fair procedures, which at least provide for some parity between governments, are necessary if dispute resolution is to strengthen unity or at least a sense of common purpose. The rules for dispute resolution in land are generally considered to be fair and this has helped to
46、reconcile land to Finnish sovereignty, while the perceived unfairness whereby the Standing Committee of the National Peoples Congress will give interpretations of the Basic Law at the behest of the Chief Executive of the HKSAR has reinforced the alienation of many in Hong Kong from the system of (we
47、ak) autonomy6. Some forms of dispute resolution help to clarify the constitutional framework for the exercise of autonomy and the relations between governments, and thus reduce disputes in the future. In other cases, the mechanism of dispute resolution, especially when affected 6 Several aspects of
48、this issue are discussed by and from a variety of perspectives in Chan, Fu and Ghai (eds) in Hong Kongs Constitutional Debate: Conflict over Interpretation (Hong Kong: Hong Kong University Press, 2000). by the courts, can assist in the development of the framework and thus introduce some flexibility
49、 which may be precluded by the difficulty of using the formal amendment procedure (the courts may also introduce inflexibility, for the same reasonthis is some times a complaint which Puerto Ricans make against the jurisprudence of the US Supreme Court as regards their relationship to Washington7). In relation to Hong Kong, it can be argued that the interpretation by the Standing Committee of the NPC of the right of abode and the subsequent elaboration of it by the Court of Final Appeal (Lau Kong Yung v Director of Immigration 1999 3 HKLRD 778) has reduced flexibility, which the