Application Of Treaties In National Courts

International law has no comprehensive and authoritative law enforcement mechanism that exists in national legal systems. Therefore, it is of great practical significance to find a way to strengthen enforcement of international law. As international treaties play a more and more important role in today's international community, enforcement of treaties becomes central to enforcement of international law. Given the complementary role of national law in giving effect to treaties in domestic legal order, enforcement of international treaties relies heavily on states and their organs to respect international law. Among legislative, executive and national institutions, the application of treaties by national courts plays an important role and has direct influences on enforcement of international law. Appropriate application of international treaties is of particular significance to China. It is a realistic way to strengthen authority and credibility of China's judicial system.Considering the importance of application of international treaties by national courts, the practical issues that are confronted by courts when apply treaties will be examined from perspective of judicial practices and national courts in this dissertation with comparative method.Chapter1discusses national courts and compliance with international treaties. The aim is to provide a background for understanding the practice of application of treaties by national courts. Compliance with treaties refers to acts of states are in accordance with treaty provisions. Application of treaties by national courts is among one of the important ways to ensure treaties be complied with, although it is revealed both by theory and practice that this role has its limitation. In order to enlarge and strengthen this role, it is not only judges that needs be trained to improve their knowledge in international law, but the will of state organs as a whole are relevant. Only when the legislative branches, judicial branches and executive branches believed that they all have the responsibilities to apply treaties, will the courts exert a real role in safeguarding the compliance with international treaties.Chapter2discusses adoption of international treaties in national legal order. It is a precondition of direct application of treaties by national courts. The practice of states continues to display two main approaches to make international law applicable. One is transformation, which means in order to gain legal effect in national legal order a particular treaties requires subsequent legislation after it comes into effect under international law. The other is incorporation, which means treaties will become part of domestic law immediately after it becomes effective to the country concerned at the international level. The national practice of this respect is divergent, with varieties in between.Chapter3discusses direct application of international treaties by national courts. Logically, International treaties which have been given effect in the national legal order could be applied by courts as domestic law. But the judicial practices have shown a different picture. The doctrine of self-executing treaties is a classic theory concerning direct application of international treaties. It is originated in the US but also known in other countries. However, the concept of self-executing treaties varies from country to country. The same provision may be applied directly by the courts of one country and not be applied directly by courts in another country. In the lack of consistent practice, it is difficult to predict in advance whether a particular provision will be considered self-executing by the courts of a particular country.Chapter4discusses conflicts between international treaties and domestic laws. This is one of the most important questions when national courts deal with international treaty issues in cases. Generally speaking, in incorporation states, if status of treaty in domestic legal system is the same as that of national law in a particular country, the conflict rules such as lex posterior derogat priori will be applied by national courts. In some countries, international treaties are given absolute priority through the principle of primacy and the principle of consistent interpretation. In states with a system of transformation, the conflicts between international law and national law is in essence the conflicts of national laws, because the relevant treaty has been transformed into and become part of national law.Chapter5discusses questions arising from interpretation of international treaties by national courts. The power of domestic courts to interpret international treaties, and their independence from the executive in doing so, is subject to a variety of regulations in different countries. It is highly possible that the same provision of the identical treaty will have different meanings in different countries. The tendency of national courts to apply the concepts and methods of their own municipal law is probably one of the most important causes of this divergence. The method of interpretation by national courts includes text or intention approach; teleological approach; and liberal or restrictive interpretation. Chapter6discusses situations of treaty application in Chinese courts. International treaties were applied in Chinese courts since1979, one year after China adopted reform and open-up policy. For30years, the total amount of cases concerning treaty application by Chinese courts is increasing year by year. Among these cases, the amount of foreign-related commercial and maritime cases is largest, the secondary is foreign-related administrative cases, and the last is foreign-related criminal cases. The purposes of applying treaties by Chinese courts mainly include: using treaties to interpret municipal law; resolving issues as to subjects and objects of rights through applying treaties; applying treaties to recognize Foreign Judgments, Arbitral Awards according to treaties, and recognize validity of evidences derived abroad; to decide the content of rights that are prescribed in treaties; Applying treaties to establish criminal jurisdiction over crimes prescribed by international treaties.