Judicial Application of International Law in China

Abstract

Unlike the constitutions of most of states providing the status of international law in the domestic legal systems, China’s Constitution remains silent in this regard. While many Chinese laws refer to treaties, stipulating that the treaties that China has ratified should apply and, especially, in case that Chinese domestic laws are inconsistent with Chinese treaty obligations, the latter shall prevail. Furthermore, Chinese laws hardly mention other sources of international law, for instance, international custom. China, on most occasions, enforces international law by enacting or updating domestic laws. In this context, therefore, what Chinese courts apply is domestic law instead of international law. However, China does not enact or revise all laws necessary to enforce the relevant international law. This creates uncertainties as to how Chinese courts apply international law. Furthermore, in the Chinese Communist Party (CCP)-led China, courts are often reluctant to challenge the governmental authority by applying international law. Due to the legal and political constrains, Chinese courts are generally ambivalent to international law. Treaties applied by Chinese courts are limited and Chinese judges usually do not interpret them in detail. Specially, Chinese courts are reluctant to apply treaties which are mainly designed to constrain the governmental authority. Nevertheless, Chinese courts have been more friendly with international law and sought the accurate and coherent application of international law in the past decade. First, the Supreme People’s Court (SPC) has taken more measures to enhance the better application of treaties. In November 2009, the SPC adopted the Rule Concerning the Invoking of Normative Instruments Including Laws and Regulations in Adjudicative Instruments. Under the rule, the applicable laws used to decide cases are confined to Chinese “laws” referred to in China’s Legislation Law. However, also in accordance with the rule, international law may be used in legal reasoning. This judicial methodology was already embraced in the Regulations on Issues Concerning the Trial of Administrative Cases Relating to International Trade adopted by the SPC in 2002 (hereinafter “the SPC Regulation (2002)”). The regulation, in Article 9, provides that, if judges find that there exist more than one reasonable interpretations for a Chinese law in adjudicating international trade regulation case, and among which one interpretation is consistent with a treaty that China has entered into, such interpretation shall be adopted. Chinese courts have applied such “consistent interpretation” principle in many cases. Specially, in 2015, the SPC, in the Several Opinions on Providing Judicial Services and Safeguards for the Construction of the “Belt and Road” by People’s Courts, requires that courts accurately apply treaties. Specially, it requires that courts interpret treaties in strict accordance with the Vienna Convention on the Law of Treaty (VCLT). Second, in addition to international commercial treaties, other treaties, especially human rights treaties which are aimed to constrain the governmental authority, have begun to be applied by Chinese courts. It is expected that, as China has become a leading power and thus seeks to exert more influences on international legal order, international law will be more applied in Chinese courts.