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Studies on the Basic Theory of Treaty Application in China

Author: WangYong
Tutor: ZhouHongJun
School: East China University of Politics and Law
Course: International Law
Keywords: Treaty Application Basic theory
CLC: D993.8
Type: PhD thesis
Year: 2006
Downloads: 1201
Quote: 7
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Abstract


With the rapid growth of international communication and cooperation,international treaties, as a most primary source of international law and a mostimportant legal instrument of adjusting international relationships in various fields,play an extraordinary role in the international plane. Nevertheless, most internationaltreaties could only function through the domestic implementation. Thus a deepresearch on the domestic application of international treaties of contracting states hasgreat significance. China is among the leading contractors of international treaties inthe world, and has concluded about 14,040 treaties with foreign countries during theperiod from 1 Oct 1949 to 1999. Treaties take an important place in the fields ofChina’s politics; society, economics, cultural life and diplomacy, and most of thosetreaties should be applied in China. However, there is even no stipulation in either ourpresent Constitution or constitutional documents. There is also no clear provision inother laws and regulations, together with the disorder in judicial practice. Regardingall these situations, it is of great necessity to study on the fundamental theories of theapplication of international treaties. To be more specific, the significance of this studyincludes many aspects: Firstly, the study can cure the defects in our constitutionallegislation. Secondly, the study can help to avoid the contradiction and disorder injudicial practice and thus change the disordered into well ordered. Thirdly, the studycan promote the development of the theories on application of international treaties inChina. Fourthly, the study has great practical significance. Finally, the study on thefundamental theories on application of international treaties is a basis for the study onthe relevant specific problems in China and offers a guidance to resolve thoseproblems.The thesis studies the problems of treaties-application in China from macroscopicperspective, and then shows the general regularities and principles of thetreaties-application in China. This thesis can be considered as a general introduction tothe application of international treaties in China in this sense. This thesis makes a deepstudy on the fundamental theories on treaties-application in China in evidential analytic, comparative analytic, statistical analytic, philosophical analytic and historical analyticapproaches. Through deep research, this thesis reveals the defects in thetreaties-application in China, analyzes the reasons and spares no effort to perfect theapplication mechanism of treaties in china.This thesis has about 200,000 words including the introduction and sevenchapters. Their specific contents are as follows:The introduction instructs the definition of the title of this thesis, thesignificance of the study, the thinking-way and construction of the study, theapproaches, and the characteristics and innovations of this thesis.ChapterⅠgives a deep analysis on three main reasons of thetreaties-application in China. First of all, "pacta sunt servanda" is the legal theoreticalreason for the application of treaties in China. Secondly, the real reason for theapplication of treaties in China is that the treaties involve private interest ormodification of domestic laws. Furthermore, the most fundamental reason for theapplication of treaties in China is the coordination of the interest of the internationalcommunity, the national interest of China, and the private interest at domestic level.ChapterⅡfirstly makes a general statement of the definition, characteristicsand classification of acceptance. Then this chapter discusses the reality of theacceptance of treaties in China’s domestic laws, and points out that the conclusionprocedure must come before the acceptance. This chapter continues to give fourpieces of advices for perfecting the acceptance mechanism of treaties in domesticlaws.ChapterⅢpoints out that the fundamental principles of treaties-application inChina are the basis for the application of treaties in China, and are importantprinciples which go through the whole procedure of the application of treaties inChina. There follows the analysis on three fundamental principles of the applicationof treaties in China, which are the principle of sovereignty, the principle of "pacta suntservanda" and the principle of the protection of private interest.ChapterⅤintroduces the five different practices about the legal status oftreaties within domestic legal system. Introduces and analyses the standpoints andreasons concerning the legal status of treaties within domestic legal system by somedomestic scholars, and points out the tendency of "treaties are prior to laws" whichreflected in the stipulations. On the basis of jurisprudence, it defines the legal status oftreaties within China’s legal system.ChapterⅥanalyses the China’s regulations, the judicial interpretations andthe cases concerning treaties-implementing methods whatever directly or indirectly ormixture during the lasting 20 years. On such basis, it points out that there are manydefects within the legal documents of direct treaties-application, and shortage of legaldocuments of indirect treaties-application as well as the confusion of standardsconcerning the application of treaties directly or indirectly, which resulting to theconfusion of system of treaties-application in China. To change such condition, ourcountry shall establish the system of "self-execution treaties" and "non-self-executiontreaties" to rule the application of treaties.ChapterⅦintroduces the methods of prevention and solution of conflicts between treaties and domestic laws of china and other states, analyses the defects ofthose methods, and brings out suggestions of perfecting.ChapterⅧdiscusses the perfection of application system of treaties fromaspects of legislation system and judicial system. In aspect of legislation system, weshall use the terms of treaties normatively, compactly and unified in domestic law, andto be like this, shall amend the constitution law as well as the law of procedure of theconclusion of treaties. In aspect of judicial system, we shall reform the judicial systemto improve its independence, shall innovate the judicial idea as well as the thought oflaw application, shall train the judicial professionals who are familiar with bothinternational treaties and law of treaties, shall perfect the judicial interpretation andimprove the transparency as well as applicability of such judicial interpretation, andshall establish the reporting system of judicial application of treaties.

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CLC: > Political, legal > Legal > International law > Law of Treaties
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