On The Current Situation And Perfection Of China's Treaty Conclusion System

Treaties are important legal form in international relationships. It is serious to conclude treaties. In order to ensure the right execution of a country's right to conclude treaties, the conclusion of treaties should be led and managed uniformly by laws and regulations concerning the conclusion of treaties. The current Law of the People's Republic of China on the Procedure of the Conclusion of Treaties was formulated in 1990. At that time, China had not joined in Vienna Convention on the Law of Treaties. Hong Kong and Macao had not returned to China, either. Under this condition, there was a gap between provisions of Law of the People's Republic of China on the Procedure of the Conclusion of Treaties and the reality. On March 12, 2008, the last day of NPC and CPPCC, Hainan delegation submit a proposal to suggest that Law of the People's Republic of China on the Procedure of the Conclusion of Treaties should be amended as soon as possible, which drew a lot of attentions from relevant departments. Ministry of Foreign Affairs has been already engaged in the investigation and evidence-collection for the amendment of Law of the People's Republic of China on the Procedure of the Conclusion of Treaties. The job to improve the legislation concerning the conclusion of treaties of China is before us urgently. And this is just the practical significance to write this paper, with the hope that this paper will be beneficial to the amendment of Law of the People's Republic of China on the Procedure of the Conclusion of Treaties.This paper is composed of three chapters. Chapterâ… examines the main legal problems concerning the conclusion of treaties, including the basic connotation and characteristics of treaties, the competence and right to conclude treaties, procedures on the conclusion of treaties and regulations of international law for the conclusion of treaties.Chapterâ…¡mainly focuses on China's practices on the legislation of procedure law on the conclusion of international treaties. Firstly, this chapter gives a brief introduction to Constitution of the People's Republic of China and Law of the People's Republic of China on the Procedure of the Conclusion of Treaties. Then, the present author conducts a comparison between regulations of China's law and international law concerning the conclusion of treaties. Finally, based on the comparison, the defects of China's prevailing laws concerning the conclusion of treaties are summarized. The first one is China does not admit and accept some important international conventions in time. The second one is that Law of the People's Republic of China on the Procedure of the Conclusion of Treaties does not take China's and international regulations concerning the conclusion of treaties into consideration. The third one is that Law of the People's Republic of China on the Procedure of the Conclusion of Treaties does not endow NPC clearly with the right to conclude treaties. The fourth one is that relevant provisions of Law of the People's Republic of China on the Procedure of the Conclusion of Treaties contradict with those of substantive international treaties in perspective of legal principles. The fifth one is that Law of the People's Republic of China on the Procedure of the Conclusion of Treaties prescribes too much on principles but little on the practical operation thereof. The sixth one is that in examination and approval procedure for treaties prescribed in China's laws, there is a lack of correspondent procedures for seeking opinions on treaties with the goal of ensuring the rights and interests of specific departments or individuals involved in these treaties. The seventh one is that in Law of the People's Republic of China on the Procedure of the Conclusion of Treaties, there is a lack of particular regulations concerning the conclusion and application of treaties that Hong Kong and Macao are subject to. All these facts show that there are problems in China's conclusion of treaties with foreign countries. Law of the People's Republic of China on the Procedure of the Conclusion of Treaties needs urgent amendment and improvement.Chapterâ…¢elaborates on some assumptions on how to improve and enhance China's present legislation. Firstly, this chapter points out the necessity and significance to amend and improve Law of the People's Republic of China on the Procedure of the Conclusion of Treaties. Then, it summarizes the basic principles that the improvement of Law of the People's Republic of China on the Procedure of the Conclusion of Treaties should adhere to. Finally, on the condition of adhering to the basic principles, specific suggestions on the improvement of Law of the Peoples Republic of China on the Procedure of the Conclusion of Treaties are put forward. The first suggestion is to improve the transparency of the process of concluding treaties. The second one is to establish organizations exclusively for treaty negotiation. The third one is to ensure the realization and coordination of the different interests of all parties involved in treaties in the process of examining and approving treaties upon conclusion. The fourth one is to give special instructions on the special approval procedure for important international agreements and treaties and improve the approval level for important treaties, that is, to approve these treaties by NPC or by the Standing Committee of NPC under special authorization. The fifth one is to add provisions concerning the confirmation of the status and application of treaties in China's domestic law. The sixth is to add special instructions on the procedure of concluding treaties with foreign countries by Hong Kong and Macao.In order to achieve a good research result, the present author adopts many research methods. The first method is empirical analysis. The present author conducts empirical analysis by combining facts with jurisprudence when elaborating opinions. Specifically speaking, when elaborating opinions, the present author carries out empirical analysis through examining specific legal texts, observing relevant cases deeply, cite opinions of authorities or studying practical treaties carefully. The second method is comparative analysis. The present author mainly compares the similarities of and dissimilarities between regulations concerning the procedure of concluding treaties in international law and the law on the procedure of concluding treaties in China, analyzes the defects of China's law in this aspect and summarizes enlightenment therefrom to China. The third method is historical analysis. When studying the law on the procedure of concluding treaties of China, the present author reviews the history of China's practices on the conclusion of treaties in the past few decades and demonstrates problems that China has in concluding treaties based on the comparative analysis between the current situation and the past.