On Automatic Implementation Of The Treaties In The Domestic Judicial Execution

Nowadays, as the international exchange and cooperation developes rapidly, the importance of international treaties are becoming more and more obvious. However, their importance can only be fully displayed through the enforcement by the contracting states, and then the domestic enforcement of the treaties turns out to be a common problem to all the states. Since the international law does not make provisions for the approaches to compliance and performance of the treaties, we can see that neither of the states has completely the same legislation and judicial practice in this regard. In the United States, the judicial practice distinguishes all the treaties into self-executing treaties and non-self-executing treaties, which has a great impact on other countries. With the number of international treaties affecting private rights increasing, the domestic judicial enforcement of self-executing treaties has become a prominent issue.This article begins with the basic concept of self-executing treaties, interprets and defines some easily confused notions and paves the way for the following theoretical analysis, in order to achieve the consistency of the concepts and the integrity of the system. Then it mainly introduces the judicial practice of self-executing treaties in foreign countries. After the introduction of the origin and development of self-executing treaties, it fully discusses their identification standards and the hierarchy when they have conflict with domestic law. The final goal of this article goes to the shortcomings and improvements of the enforcement of self-executing treaties in China.The structure of this article is as follows: besides the introduction and conclusion, it is divided into three chapters.Chapter I: the explanation and definition of some related concepts. It is divided into three parts. Part one begins with the basic concept of "judicial enforcement" in the title, analyzes and compares the differences between "implementation", "application" and "enforcement", tells us why this article chose "judicial enforcement" as its title, which establishes the discussion scope of the full text. Based on the comparative analysis of the various definitions of "transformation" and "adoption", part two defines their true distinction. Part three distinguishes self-executing treaties and non-self-executing treaties and reveals their relations, which paves the way for the following discussion.Chapter II: the legislation and practice of the judicial enforcement of self-executing treaties in foreign countries. It is divided into three parts. Part one introduces the identification ways of self-executing treaties in different states, as well as their origin and development. Part two discusses the identification standards of self-executing treaties, focusing on the practice in the United States, and analyzes the "Intent-Based" standard, the "Justiciability" standard, the "Constitutionality" standard and the "Private Right of Action" standard. Part three analyzes the hierarchy of self-executing treaties when they have conflict with domestic law in national courts.Chapter III: the status quo and improvements of the judicial enforcement of self-executing treaties in China. It first introduces the legislation, the judicial practice and theory of self-executing treaties in China, then compares the domestic situation with that of foreing countries, and finally points out the shortcomings and makes some suggestion.Based on the above three parts of discussion, the end of this article draws the final conclusion in several respects. It is essential to establish certain uniform identification standards for self-executing treaties, which is helpful for their effective enforcement in the contracting states. Based on the comparison of the pratice in China and foreign countries, our country should add a general provision on the application of treaties to our Constitution, amend the existing laws and regulations on self-executing treaties, and defines their identification standards and hierarchy. In the judicial practice, the Supreme Court should consider to make some judicial interpretations, in order to achieve the consistency of the judicial enforcement of self-executing treaties.