A Study On The Domestic Application Of International Human Rights Treaties

Whereas the differences between the international human rights treaties and other international treaties,including the specific features of the legal relationship regulated by the international human rights treaties,the differences in respect of the domestic application amongst other international treaties and the urgencythat China is now facing how to resolve the pending issues of domestic application of international humanrights treaties, therefore, this thesis is aiming to discuss the domestic application of the internationalhuman rights treaties on the basis of analyzing the various states’ legislature and judicial practices ofdomestic application of international human rights treaties and to propose some suggestions for resolvingthe issues of domestic application of the same. The thesis started at the discussion of the pros and consof the traditional domestic application methods of the common international treaties, i.e. directapplication and indirect application, and the possible consequences induced by these two methods inapplying the international human rights treaties by domestic government, and on the basis of suchdiscussion, we then examined and analyzed the constitutional and judicial practices of various states, e.g.USA, Japan etc. regarding the domestic application of international human rights treaties in thosecountries, following the above analyzing, we summarized the recent changes in applying the internationalhuman rights treaties in domestic and found a new trend of domestic application that becomes more andmore reasonable and practicable, i.e. an interpretive application, here we carefully studied the advantagesof such application method against the traditional methods. We then deeply discussed the historicaldevelopment of the domestic application practices of the international human rights treaties of USA,Japan and South Africa. Finally, we discussed the current status of the domestic application of theinternational human rights treaties in China, summarized the problems to be resolved by China in applying the international human rights treaties, including the absence of the legislature, ambiguity of theapplication method, no definite conclusion regarding whether giving the priority of the internationalhuman rights treaties. Given that the foregoing issues and problems, we further made some suggestionsfor hoping to resolve the same, including starting the legislation to clarify the legal status of theinternational human rights treaties in PRC legal system, giving the power to PRC courts to resolve thepractical problems in applying the international human rights treaties, e.g. the application methods and thepriority issue, and particularly, we strong recommended the PRC courts to give the weight of theinterpretive methods when applying the international human rights treaties in judicial practices.