Research Questions Of How International Treaties Apply In China

With the continuous development of China’s opening to the outside world, thenumber of international treaties are increasing. But our Constitution does not makeclear provisions about the legal effect of the treaty, the provisions about Treatyapplicable legal requirements in our country is scattered among the variousdepartments of the General Principles like Civil Law, Civil Procedure Law, MaritimeLaw and so on. This decentralized legislative mode has many drawbacks, first of all, itwill cause legal uncertainty, and further lead to the confusion caused by theapplication of the law. Second, it may lead to the international treaties can not beapplied in our country, and do harm to the China’s international image. To solve thisproblem, this article attempts to combine practical experience abroad, explore thepossibility of means to modify the current law in order to address the treaty applicableconfusion.As regards to the contents, the article includes four chapters discussedrespectively the treaty applicable in the domestic legal basis of its mode, British andother countries around the world for the the treaty domestic application of the practice,treaty domestic application of the practice in China and the possibility and means toimprove the application of the treaty system in China.The first chapter discusses the treaty applicable in the domestic legal basis and itsmode, first introduced the concept of the treaty applicable in the country, and a briefsummary of the legislative basis that "pacta sunt servanda" principle and national constitutional provisions. Then discuss directly applicable mode, indirectly applicablemode and "self-executing treaty" and "non-automatic implementation of the treaties"mode and try to compare advantages and disadvantages of these modes.The second chapter discuss the practice of different countries in the question ofdomestic treaty applicable, respectively, of a typical countries, such as directlyapplicable in France, the Netherlands, indirectly applicable to typical countries suchas the United Kingdom, as well as a "self-executing treaty with"non-automaticimplementation of the Treaty" mode in the United States. From the comparativeadvantages and disadvantages of the practice of States in trying to find the idealmodel suited to China’s national conditions.The third chapter research our country’s current practice in the issue of treatydomestic application, and further divided into two categories: civil and commercialinternational treaties with non-civil and commercial matter international treaties. Thisdistinction is because China has a relatively special principle “directly applied” forcivil and commercial treaties, but this directly apply is not absolute, there are manylimitations exist. In the field of non-civil and commercial matters, the application oftreaty in our country seems more confusing, need to be addressed by modifying thelegislation.On the basis of first three chapters, The final chapter discuss directly applicable,indirect applicable, the "self-executing treaty" and "non-automatic implementation ofthe Treaty of the three modes, which mode is more suitable with China’s currentnational conditions and the world development trend. And further discuss thepossibilities to modify “Constitution” and mend “Treaty procedural law” into “Treatyprocedural and applicable law” in order to solve the chaos of treaty application inChina.