A Comparative Study On The Exercise Of Treaty-Making Power In China And The United States From A Perspective Of Foreign Relations Law

A consensus has been reached among Chinese scholars that China’s treaty-making power has its own defects.Many scholars have already put forward some suggestions.However,what kind of concepts should we follow to improve?How can these concepts be accurately obtained?For United States,as one of the most important treaty-making counterparties of China,how does it do?What enlightenment lessons can we learn from the experience of United States?In the researches and studies to improve China’s treaty-making power,what issues have not been fully valued by our scholars,or even have been neglected?As an important effort to improve China’s treaty-making power,the former Legislative Affairs Office of State Council has issued the Implementation of the Law on the Procedure of the Conclusion of Treaties(Draft for Soliciting Opinions)in 2017.What are the highlights of it?The answers of these questions are of great significance to improve China’s treaty-making power,to learn from other countries,including US,and to better conduct treaty negotiations with foreign countries.This paper holds the belief that foreign relations law is a good point of view to study about how to improve China’s treaty-making power.It can help us to properly understand the balance of special interests during treaty-making process.The rise of the foreign relations shows that besides efficiency,a country pays more attention to the values of the rule of law while carrying out its foreign relationship with other countries.Nevertheless,compared with pure domestic affairs,the value of efficiency has its significant importance in foreign relations.For different countries,during the development and improvement of treaty-making power,the requirements of balance between the rule of law and the efficiency may vary.The United States Trade Representative(USTR)and the Fast Track/Trade Promotion Authority(TPA)system reflect the United States’ pursuit of the rule of law and efficiency in trade negotiations under national circumstances.All of these have important enlightenments and implications for China.China’s treaty-making power should be understood in the context of the overall rule of law in China and the rule of law in foreign relations.The promulgation of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties in 1990 is an important measure for the implementation of the rule of law in China,and efficiency is also an important value pursued by this law.However,due to the restriction of the 1982 Constitution of the People’s Republic of China,there are many shortcomings in the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties.Generally speaking,not enough attentions have been paid to the value of the rule of law.To perfect it,Chinese international law scholars have put forward many suggestions.Despite this,the lack of clear thinking on foreign relations among international law scholars has resulted in the fail to fully discuss the improvement of China’s treaty-making power from the perspective of coordinating the rule of law and efficiency.The continuous improvement of the overall level of rule of law in China and China’s full participation in the international system have placed higher demands on the rule of law and efficiency in the exercise of treaty-making power.Especially,higher requirements have been put forward to improve the rule of law regarding to the exercise of treaty-making power.The implementation of the Law on the Procedure of the Conclusion of Treaties(Draft for Soliciting Opinions)has made important progress in this regard.It addresses the provisions of the treaty negotiation mechanism and the content of the review.To compare with the United States’ trade representatives and the fast track/TPA system,although it is different in the form of government,in terms of function,it has the same effect.Besides introduction and conclusion,this paper has 5 main chapters.Chapter 1 discusses the evolution of the value of foreign relations governance and the legalization of the exercise of treaty-making power,providing a analysis framework for the rest of chapters.Chapter 2 studies Unite States’TPA system and its exercise of treaty-making power.Through a detailed research over the origin and development of TP A,it discloses how United States balance the rule of the law and the efficiency in treaty-making from the prospective of power.Chapter 3 studies USTR and its exercise of treaty-making power.Similar to last chapter,it discloses the balances struggles from the prospective of mechanism.Chapter 4 evaluates the current rule of law in China’s treaty-making power.From the prospective of foreign relations law,it reviews the birth of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties and its main content.Cases studies have also been presented to demonstrate the shortcomings.Improvement direction has also been pointed out in this chapter.Chapter 5 studies the further improvement of China’s treaty-making power.By learning from the experience of United States and the Implementation of the Law on the Procedure of the Conclusion of Treaties(Draft for Soliciting Opinions)issued by the former Legislative Affairs Office of State Council,it discusses two important factors during the improvement of China’s treaty-making power.