Communications in Humanities Research

- The Open Access Proceedings Series for Conferences


Communications in Humanities Research

Vol. 12, 20 November 2023


Open Access | Article

General Application of International Treaties in China

Na Zhu * 1
1 Inner Mongolia Wise-View Law Firm

* Author to whom correspondence should be addressed.

Communications in Humanities Research, Vol. 12, 90-98
Published 20 November 2023. © 2023 The Author(s). Published by EWA Publishing
This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Citation Na Zhu. General Application of International Treaties in China. CHR (2023) Vol. 12: 90-98. DOI: 10.54254/2753-7064/12/20230049.

Abstract

The world today is undergoing major changes unprecedented in a century. World multipolarization, economic globalization, social informatization and cultural pluralism are developing in depth, and the pace of reshaping the global pattern and international order is accelerating. As an objective historical process, the globalization of law has also become an irreversible trend of the times, which undoubtedly challenges the traditional theory of the relations between international law and domestic law. Under such a new world pattern, China pursues and advocates a new type of international relations and values, and has always attached great importance to the implementation of international law and related international obligations. However, in China, the study of how to apply treaties is limited to theoretical discussions, there are many uncertainties in judicial practice, and there are still legislative gaps in the hierarchy and method of treaty application in the domestic legal system, which are all issues that need to be solved urgently.

Keywords

application of international treaties, transformation, adoption

References

1. See J. Brierly, The Law of Nations, 6th edition, Oxford (1963),1-40.

2. Hans Kelsen, Principles of International Law, 2nd edition, Holt, Rinehart and Winston, Inc. (1966), 553-88; H. Triepel, Völkerrecht und Landesrecht, Berlin, 1899.

3. Gerald Fitzmaurice, “The General Principles of International Law Considered from the Standpoint of the Rule of Law”, Vol. 92, Recueil des Cours (1957), II, 71.

4. Malcolm N. Shaw, International law, 6th edition, Cambridge University Press (2008), 132-133.

5. James R Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press (2012), 50.

6. Wang Tieya, Guojifa Yinlun, Peking University Press (1998), 189-190.

7. Björn Ahl, “China’s New Global Presence and Its Position towards Public International Law: Obeying, Using or Shaping?” (August 25, 2016). Lutz-Christian Wolff, Chao Xi (eds), Legal Dimensions of China’s Belt and Road Initiative, Wolters Kluwer, Hong Kong (2016), 481-505. Available at SSRN: https://ssrn.com/abstract=2830199.

8. Wang Tieya, Guoji Fa (International Law), Beijing: Law Press·China (1981), 44.

9. Liang Xi, Guoji Fa (International Law), Wuhan University Press (2003), 14.

10. Tang Yingxia, “The relationship between international law and domestic law and theapplication of international treaties in China’s domestic law”, Social Science Front, No. 1, 2003, 177.

11. D. P. O’Connell, International Law, two volumes, 2nd edition, Vol I, Stevens & Sons (1970), 49.

12. Oppenheim’s International Law, Vol. I: Peace, Sir Robert Jennings and Sir Arthur Watts, 9th edition, London: Longman (1992), 60.

13. See, e.g., Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

14. Li Haopei, Tiaoyuefa Gailun (Law of Treaties), Beijing: Law Press·China (1981), 392.

15. Xu Jintang, “Several Issues on the Domestic Application of International Treaty”, Chinese Review of International Law, 2014, No. 3, 79.

16. Zhang Xiaodong, “Also on the Application of International Treaties in China”, Law Review, No. 6, 2001, pp. 73-79.

17. Che Pizhao, “On the Application of Treaty in China”, Law Science Magazine, No. 3, 2005, pp. 96-99.

18. Jiang Guoqing, “Several Issues in International Law and International Treaties”, Journal of Foreign Affairs College, No. 3, 2000, pp. 16-17.

19. Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th revised edition, London and New York: Routledge (1997), 63.

20. Zhou Gengsheng, International Law, [M]. Beijing: Commercial Press (1981), 20.

21. Li Min, “On the Legal Status of Treaties in China”, Journal of Zhoukou Normal University, Vol. 38, No. 1, Jan. 2021, 112.

22. Article 142 of the General Principles of the Civil Law of the People’s Republic of China: “The application of law in civil relations with foreigners shall be determined by the provisions in this chapter. If any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations. International practice may be applied to matters for which neither the law of the People’s Republic of China nor any international treaty concluded or acceded to by the People’s Republic of China has any provisions.”

23. Mo Jihong, “On the New Trends in the Relationship between International Law and Domestic Law”, World Economics and Politics, No. 4, 2001, 39-40.

24. Hans Kelsen, General Theory of Law and State, New Brunswick: Transaction Publishers (2006), 379.

25. Wang Meili, “Legislation Form of International Treaty Status in the Era of Civil Code”, Modern Law Science, Vol. 43, No.1, Mar. 2021, 205.

26. See Para. 111(4) of the Restatement (Third) of Foreign Relations Law of the United States (1987): An international agreement of the United States is “non-self-executing”: (a) if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation,(b) if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or (c) if implementing legislation is constitutionally required.

27. Zuo Heicong, “Research on the Direct Application of Treaties”, Chinese Journal of Law, No. 3, 2008, 88-97.

28. Anthony Aust, Handbook of International Law, 2nd edition, Cambridge University Press (2010), 75.

29. Li Long, Wang Xigen, “A Jurisprudential Pensive Research on the Relationship Between the International Law and the National Law —— With Regard to the Similar Ideas of Asian Countries”, Modern Law Science, Vol. 23, No. 1, Feb. 2001, 15.

Data Availability

The datasets used and/or analyzed during the current study will be available from the authors upon reasonable request.

This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Authors who publish this series agree to the following terms:

1. Authors retain copyright and grant the series right of first publication with the work simultaneously licensed under a Creative Commons Attribution License that allows others to share the work with an acknowledgment of the work's authorship and initial publication in this series.

2. Authors are able to enter into separate, additional contractual arrangements for the non-exclusive distribution of the series's published version of the work (e.g., post it to an institutional repository or publish it in a book), with an acknowledgment of its initial publication in this series.

3. Authors are permitted and encouraged to post their work online (e.g., in institutional repositories or on their website) prior to and during the submission process, as it can lead to productive exchanges, as well as earlier and greater citation of published work (See Open Access Instruction).

Volume Title
Proceedings of the International Conference on Global Politics and Socio-Humanities (ICGPSH 2023)
ISBN (Print)
978-1-83558-113-1
ISBN (Online)
978-1-83558-114-8
Published Date
20 November 2023
Series
Communications in Humanities Research
ISSN (Print)
2753-7064
ISSN (Online)
2753-7072
DOI
10.54254/2753-7064/12/20230049
Copyright
20 November 2023
Open Access
This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited

Copyright © 2023 EWA Publishing. Unless Otherwise Stated