Cooperation amongst Conflicts: Where are Mainland China and Hong Kong Now
During the process of integration, what are the main problems China has encountered in matters of regional legal cooperation?
Since 28 September, 2014, when roads in the city centre of Hong Kong Special Administrative Region (SAR) were occupied by thousands of protesters due to a disagreement with the Central Government on the procedure for the chief executive election, concern has arisen over the possible influences on cooperation within one country.
Integration under “One Country, Two Systems"
Contrary to the integration progress in Europe, which started with economic cooperation, China’s integration was initiated by the “one country, two systems” policy. (To illustrate the difference, Charter I and II are provided below.) It is a political arrangement that safeguards China’s resumption of sovereignty over Hong Kong SAR and ensures Hong Kong’s high degree of autonomy, including executive power, legislative power and independent judicial power. Following the political reunification, economic cooperation was triggered by the bilateral economic agreement, i.e. Closer Economic Partnership Arrangement (CEPA), which focuses on zero tariffs and liberalization of entry into the Mainland market. The latest statistics on foreign direct investment (FDI) released by the Ministry of Commerce of the P.R.C., state that among the top ten nations and regions with investments in China, Hong Kong (USD78.302b) was top of the list by the end of 2013.
Emergence of the Regional Legal System in China
Simultaneously, a regional legal system gradually evolved in China, concerning the rules regulating the intersection between the Mainland and the SAR. The first intersection concerns the interpretation of the constitutional document, i.e. the Basic Law, which is binding on the Mainland and the SAR. The second intersection relates to bilateral legal arrangements between the Mainland and the SAR on some specific topics, for instance, recognition and enforcement of civil and commercial judgments and arbitral awards. The third intersection occurs in the courtrooms of each region. With or without a bilateral legal arrangement, the courts have to adjudicate on cases with inter-regional factors because the active role of economic integration enables people, capitals, goods and services to move across the borders.
Main Problems Concerning Regional Legal Cooperation
In the course of cooperation, China’s regional legal system has not developed without problems. The first problem is that mutual trust between the Mainland and the SAR is still under construction. People in the SARs did not acquire their Chinese nationality in a natural way but through political and constitutional arrangements. Therefore, the sense of rooted attachment to their country is relatively weak. The second problem is there is no regional supreme court like the CJEU to adjudicate on disputes caused by the legal pluralism in the individual regions in China. Bound and restricted by the local legal systems, the courts in the various jurisdictions will be influenced by the so-called homeward trend to a greater or lesser degree. A regional supreme court could cultivate and promote common awareness by means of instructive judgments. The third problem is that the scope of regional legal cooperation arrangements is still quite limited. As a result there are still quite a lot of issues that have not been addressed at the regional level. Considering China’s regional political, economic and legal cooperation reality, the solutions are unlikely to be a ‘copy and paste’ of regional and international experiences but a balanced way tailored to China’s context.