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Academia 12 Home | Press | Academia | 12 | artikel8 Autonomy in Hong Kong and in South Tyrolby Sergio Ortino Autonomy in Hong Kong and in South Tyrol is the paper presented by Professor Sergio Ortino, director of the scientific area "Minorities and regional autonomies" of the European Academy Bolzano/Bozen, at the International Conference "Constitutional Transition" organised by the faculty of Law of the University of Hong Kong on 28 May-1 June 1997, a month before Hong Kong's transition to the Chinese rule. Hong Kong has been experiencing the undergoing transition from British colony to Special Administrative Region of the People's Republic of China. In this perspective it is appropriate to study this process in the context of constitutional change while comparing it to similar developments in other parts of the world. Here below the Academia is publishing some pages of this essay. From an international legal point of view both situations, in South Tyrol and in Hong Kong, might resemble the classic post-Versailles cases of minority protection, according to which the accommodation of conflicting rights was not attempted through general provisions set up by an international organisation (at that time, for instance, the League of Nations) and valid for all the participants, but through a complex network of insertions in specific minority treaties among particular parties(1). Within this international framework, we can furthermore note that similar roles are those between Austria and the United Kingdom from one side, Italy and China from the other. The former, having lost or being about to lose their rights of sovereignty on South Tyrol and Hong Kong respectively, try to guarantee special autonomy rights to the people of the two areas, through negotiations and agreements with the latter. As we have seen, the above stated similarity is evident, of course, only if we consider the events following the second world war, as far as South Tyrol is concerned. Finally, the reached legal status of South Tyrol and Hong Kong exhibit both the individual and the collective aspects of minority rights, ensuring for the two areas not only some protection for their particular individuals, but also relevant territorial autonomy. According to the principle of integrity of the national territory contained in the classic international law, both the People's National Congress of China and the National Parliament of Italy have the power to amend respectively the Basic Law and the Special Statute, unilaterally. The provisions of the Sino-British agreement, as well as those of the Paris agreement of 1946 between Italy and Austria, can be safeguarded only indirectly by the British and Austrian governments respectively. Bearing in mind what happened to South Tyrol, it would have been helpful if the Basic Law itself had contained a dispute-settlement or consultative mechanism in the event of disagreements over its implementation or amendment(2). However, the guarantees contained in the foreseen Sino-British Joint Liaison Group are better than nothing, even though the commission will stop work after January 1 2000 according to the Annex II of the Sino-British Joint Declaration. The relevant territorial autonomy that both South Tyrol and Hong Kong enjoy does not derive from the implementation of general principles of a federal State, but from a special status within the constitutional order of China and Italy respectively. If article 31 of the Chinese Constitution that affirms: "The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions", article 116 of the Italian Constitution rules: "Particular forms and conditions of autonomy, in accordance with special statutes adopted by constitutional law, are attributed to Sicily, Sardinia, Trentino-South Tyrol, Friuly-Venetia Julia and the Aosta Valley", that is to the two main Italian islands and to some particular border and mountain areas of Northern Italy. Under a formal point of view the main dissimilarity on this subject is that the People's National Congress of China approves and amends the Basic Law by a simple majority of votes, while the Italian Parliament approves and amends the Statutes of the five special Regions through the general aggravated legislative procedure, foreseen by article 138 of the Italian constitution for any kind of amendments of the constitution or approval of the constitutional laws. But the two constitutional situations of Hong Kong and South Tyrol differ also in a substantial aspect. According to the Italian Constitutional Court there are some fundamental principles and values of the constitution that are unchangeable even through the aggravated legislative procedure of article 138 IC. On the contrary, the basic policies of the People's Republic of China regarding Hong Kong developed in the paragraph 3 of the Sino-British Joint Declaration and now stipulated in the Basic Law of the Hong Kong Special Administrative Region, are unchangeable only until 2047. The South Tyrol question is characterised by the fact that Austria and Italy are members of the European Union, a supranational level of government between (now) 15 States of the European Union and the international order. This fact has many implications. Firstly, the statement issued by the Austrian government in 1992 according to which the Italian government had implemented the whole "package" of reforms agreed between the two state representatives and the South Tyrolese in 1969, has to be inserted in the negotiation process that brought Austria to be accepted in 1995 into the European Union, of which Italy has been a co-founder since 1951. Secondly, in these last years the vision of a European Union founded upon Regions instead of the traditional nation States, receives more consent than ever. Within this framework, for instance, there are some projects for setting up a Euro-region, that will consist of the Austrian Voralberg and Tyrol, on one side, and of the Italian South Tyrol and Trentino on the other. This kind of cross-border institutional intersection is surely more practicable in a confederal order like the European Union, than between isolated traditional nation states. There is no doubt that Hong Kong would reinforce its autonomy and efficiency, if it could have at its disposal institutional tools like these ones. For the future of the Hong Kong Special Administrative Region it might be useful to stress how important it would be if Hong Kong's autonomy did not remain an isolated case in Chinese policy, but a part of a more general institutional development. As a matter of fact, it is possible that China may follow the experience of the former URRS, as some parts of the current People's Republic of China are striving for independence. The major national minorities areas, Tibet, Xinjiang and Inner Mongolia, have separate histories and strong traditions of independence, which may lead them to break away from the central government regardless of the costs. As far as Han China is concerned, there is no doubt that China's rapid economic development since 1978 and the consequent different levels of regional economic growth have the potential to lead, if not to political disintegration, to a high degree of regional autonomy. The introduction of market forces suggest in general terms that economic power is moving away from the Center to the localities. Not the central planning process, but foreign trade and capital provide those localities, that are placed to take advantage of the situation, with alternative sources to assist their economic development. This point is well highlighted by the benefits that the constitutional trend toward regionalisation in Italy, in the sixties, had in regards to the autonomy cause in South Tyrol. According to the constitution of 1948 (articles 114-133) the Italian Republic should have been divided into twenty regional entities. Beside the five above mentioned Special Regions with wide legislative and administrative powers and with a basic statute approved by a constitutional law of the national parliament, the Italian constitution provided for the establishment of 15 other new Regions with less legislative and administrative powers and with a basic statute approved by an ordinary law of the national parliament. Meanwhile Sicily had its special statute in 1946 (even before the entry into force of the new Italian constitution in January 1, 1948), and Trentino-South Tyrol and Aosta Valley a few weeks later (respectively 31 January and 26 February 1948), Sardinia and Friuly Venetia Julia had to wait until 1963 to have their Special Statute, not to speak of the other 15 ordinary Regions that were established only in 1970. This new atmosphere developed in the sixties in favour of the implementation of a complete regional State foreseen by the Italian constitution, took away from its isolation the South Tyrol autonomy question. The nature of the conflicting rights between majority and minority is ideological and economic in the case of China-Hong Kong, while ethno-national in the case of Italy-South Tyrol. As we know, the apportionment of human society in political organisations according to the idea of "modern State", has always been superimposed over many other divisions, sometimes more important, of the same society in social groups. At the beginning, the modern State had to face the religion question as a cleavage within human society (particularly during the XVI and the XVII century). Afterwards, the national principle was the main criterion of political unification of the States, especially during the XIX century. In the XX century, similar problems arose all over the world because of the birth of political ideologies. Notes/A>(1) Patrick Thornberry, International Law and the Right of Minorities (Oxford, Clarendon Press, 1991) 38-54.(2) Hurst Hannum, Autonomy, Sovereignty, and Self-Determination. The accomdation of Conflicting Rights (Philadelphia, University of Pennsylvania Press, 1990) 149. |
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