Domestic Application of International Treaties: Calling for China’s Constitutional Reform

By Rosie Tang, first-year master’s student in Economic Law,

The internal effect of a treaty is a matter of domestic law, a problem that each country deals with its own laws. The general practice of states today is to regulate this relationship through their constitutions, although there is no uniform practice. In 2020 alone, China has concluded more than 100 bilateral or multilateral treaties. Shockingly, there is no concrete provision in the Chinese Constitution nor any uniformed stipulations in other Chinese laws regulating the application of international treaties, leading to chaotic scholar interpretations and confusions in judicial practice. This article analyzes two critical issues concerning the application of international treaties in China’s legal order—the legal status and applicability of international treaties and the hierarchy of international treaties in the domestic legal system. Finally, this article concludes that a constitutional reform is needed.

The Legal Status and Applicability of International Treaties in China’s Legal System

The very first step to untangle the internal effects of an international treaty in China would be to investigate the domestic validity of international treaties in the Chinese legal system. That a treaty is binding in international law does not mean it has obtained the status of law and the applicability in domestic legal systems. The applicability of a treaty means how a country’s judicial and administrative organs refer to the treaty to deal with specific issues. The way that treaties gain legal force and became applicable in municipal systems is practiced differently per country. Two approaches have long been used to explain the different implementations: “monism” and “dualism”.

The monist approach accepts that international law and municipal law form a unified normative system. The essential feature of the monist approach is that a treaty may be applied directly by domestic courts, without any further implementation by the national legislation. On the contrary, dualism connotes two separate legal orders; it “points to the essential difference of international law and municipal law, consisting primarily in the fact that the two systems regulate different subject-matter.”[1]This approach asserts that international treaties can only be applied by national courts once it has been “incorporated”, by explicit legislative implementation, into the national legal order. In this regard, China has, in principle, adopted the monist approach.[2]The Chinese Constitution is silent on the general legal status and applicability of international treaties and it is impossible to determine the status of international treaties in China’s domestic legal system on the constitutional level. The monist feature of the Chinese system can instead be glimpsed from laws in different areas and courts’ practices. For instance, the Criminal Law applies to “the crimes specified in international treaties to which the People’s Republic of China is a state party or of which it is a member and the People’s Republic of China exercises criminal jurisdiction over such crimes within its treaty obligations.”[3] The Civil Procedural Law, the Criminal Procedural Law, the Education Law, the Customs Law, the Patent Law and the Trademark Law all affirmed the direct applicability of international treaties by inserting the provision “in accordance with the international treaties concluded or acceded to by the People’s Republic of China or with the relevant regulations of the country.”[4] Accordingly, Chinese courts have directly applied several international treaties in the context of adjudicating civil cases with foreign elements. In Abdul Waheed v. China Eastern Airlines, the Court directly applied the 1955 Hague Protocol and the 1961 Guadalajara Convention which both China and Pakistan are parties to both treaties.[5] Nevertheless, there is no general provision in the Chinese Constitution regulating the applicability of international treaties, which left the status of treaties in national law unclear and varying from area to area.

The Hierarchy of International Treaties in China’s Legal System

The next issue of investigation would be after the international treaty gained the status of law in China’s domestic legal system, and in case that there is a conflict between the treaty and domestic law, what is the pyramid of norms to resolve the conflict? A more common posture is that states affirm the supremacy of constitutions over international treaties,[6] such as the Constitution of Belarus,[7] Greece[8] and Georgia.[9] There are, nonetheless, rare cases where state constitutions or constitutional courts grant international treaties superiority over national constitutional law. For example, the Belgian Supreme Court held when there is a conflict between a domestic law and an international treaty, the “treaty must prevail” in the Etat Belge v Fromagerie Franco-Suisse Le Ski case.[10] In addition, Austrian and Venezuela[11] Constitutions grant some international treaties equal status as the Constitution. Overall, the practice varied state by state.

Again, on the legal rank of international treaties having the status of law in China, the Chinese Constitution made no mention at all. It is thus only possible to delineate the general practice, or a variety of practices, from other domestic stipulations and case laws. It should be pointed out, however, that the Chinese Constitution cannot be applied as adjudicative norms in Chinese courts. It is thus impossible to detect the hierarchy of norms through constitutional cases since such cases do not exist. The current Chinese academic discourse deems treaties inferior to the constitution in China’s legal system mainly because: 1. The status of the state agency that revises the Constitution is higher than that of the state agency that abolishes treaties; 2. The requirement for constitutional amendment is stricter than treaty approval. For instance, according to Article 64 of the Constitution, amendments to the Constitution must be adopted by a vote of at least “two-thirds of National People’s Congress deputies”, while Article 67 (15) provides that the National People’s Congress Standing Committee exercises the power to decide on “the ratification or abrogation of treaties and important agreements concluded with foreign countries.” The National People’s Congress is superior to the National People’s Congress Standing Committee in China, so the status of the state agency that revises the Constitution is higher than that of the state agency that abolishes treaties. On the other hand, regarding the hierarchy between treaties and other Chinese laws, the similar problem persists as in the case of the legal status and applicability of treaties in China. According to Article 78 to 84 of the Legislation Law, the hierarchy of laws and regulations in China is ranked as follows: 1. The Constitution; 2. Laws; 3. Administrative regulations; 4. Local laws and regulations; 5. Departmental Regulations. Article 260 of the Civil Procedural Law provides that “if a provision of an international treaty which China has concluded or acceded to is different from that of the present law, the treaty provision shall apply, unless China has made reservation to the provision.”[12] The same principle is also repeated in the General Principles of the Civil Law[13] (now replaced by the Civil Code) and the Maritime Law.[14] Hence, if there is a conflict between treaty law and domestic law, the treaty shall prevail except when China has made reservations, but only within the strict stipulation of each area of law and no overall supremacy of treaties over domestic law can be inferred from these provisions. Therefore, an overall constitutional provision that clarifies the relationship between the Constitution, treaties and domestic laws will help the legislation to unify the currently inconsistent, fragile areas of law.

Proposal

The loophole in the Chinese Constitution is not conductive to the unity and integrity of the national legal system and a call for constitutional reform is at stake. This article proposes that the Chinese Constitution should be amended to stipulate that: 1. A treaty entered into force shall become an important part of the country’s laws. The Constitution can further distinguish the direct applicability of “self-executing treaties” and “non-self-executing treaties”, that “non-self-executing treaties” will be indirectly applied through legislative transformation; 2. A treaty takes precedence over domestic laws other than the constitution. These amendments would exert a guiding effect on the Chinese legislation to insert uniform provisions in different areas of law, saving judicial resources and reducing confusion and inconsistencies. In conclusion, there is a solid need for constitutional reform and training of domestic legal practitioners to operate within the constitutional system that adheres to clear treaty application.

[1] Ian Brownlie, Principles of Public International Law (7th edn OUP, Oxford 2008) 31–33.

[2] Xue Hanqin, Hu Zhiqiang & Fan Kun, ‘National Treaty Law and Practice: China’ in National Treaty Law (n 20) 163–64.

[3] Criminal Law of the People’s Republic of China (2020 Amended), Article 9.

[4] Civil Procedural Law of the People’s Republic of China (2017 Amended), Article 276; Education Law of the People’s Republic of China, Article 70; Criminal Procedural Law of the People’s Republic of China (2018 Amended), Article 18; The Customs Law of the People’s Republic of China (2021 Amended), Article 56 (6); The Patent Law of the People’s Republic of China (2020 Amended), Article 19; The Trademark Law of the People’s Republic of China (2019 Amended), Article 17.

[5] Judgment made by the People’s Court of Pudong New Area in Shanghai in 2005 (Pu Min Yi Chu No. 12164, 2005).

[6] Anne Peters, The Globalization of State Constitutions. New perspectives on the Divide between National and International Law, Oxford University Press, 262.

[7] Constitution of Belarus (1994), Article 128 (2).

[8] Constitution of Greece (1975), Article 28.

[9] Constitution of Georgia (1995), Article 6 (2)

[10] Cour de Cassation (1^st chambre), Etat Belge v Fromagerie Franco-Suisse Le Ski, judgement of 27 May 1971.

[11] Constitution of Venezuela, Article 23.

[12] Civil Procedural Law of the People’s Republic of China (2017 Amended), Article 260.

[13] General Principles of the Civil Law of the People’s Republic of China (repealed), Article 142.

[14] Maritime Law of the People’s Republic of China (2021 Amended), Article 268.

Bibliography

1. Ian Brownlie, Principles of Public International Law (7th edn OUP, Oxford 2008).
2. Xue Hanqin, Hu Zhiqiang & Fan Kun, National Treaty Law and Practice: China’ in National Treaty Law (n 20) 163–64.
3. Constitution of the People’s Republic of China (2018 Amended)
4. Criminal Law of the People’s Republic of China (2020 Amended)
5. Civil Procedural Law of the People’s Republic of China (2017 Amended)
6. Education Law of the People’s Republic of China
7. Criminal Procedural Law of the People’s Republic of China (2018 Amended)
8. The Customs Law of the People’s Republic of China (2021 Amended)
9. The Patent Law of the People’s Republic of China (2020 Amended)
10. The Trademark Law of the People’s Republic of China (2019 Amended)
11. Judgment made by the People’s Court of Pudong New Area in Shanghai in 2005 (Pu Min Yi Chu No. 12164, 2005).
12. Anne Peters, The Globalization of State Constitutions. New perspectives on the Divide between National and International Law, Oxford University Press.
13. Constitution of Belarus (1994), Article 128 (2).
14. Constitution of Greece (1975), Article 28.
15. Constitution of Georgia (1995), Article 6 (2)
16. Cour de Cassation (1^st chambre), Etat Belge v Fromagerie Franco-Suisse Le Ski, judgement of 27 May 1971.
17. Constitution of Venezuela, Article 23.
18. General Principles of the Civil Law of the People’s Republic of China (repealed), Article 142.
19. Maritime Law of the People’s Republic of China (2021 Amended), Article 268.