Judicial Application of International Law in China

by

Congyan Cai

• LAST REVIEWED: 22 August 2023
• LAST MODIFIED: 22 August 2023
• DOI: 10.1093/obo/9780199796953-0248

Introduction

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.

General Overviews

Generally speaking, Chinese courts traditionally were reluctant to apply international law. Like many other international lawyers, the author of Wang 2021 suggests that the ambiguity of status of international law in Chinese legal system constitutes a major obstacle for applying international law in China. Yu and Li 2016 explores more factors leading Chinese judges not to apply or to inaccurately apply international law. Zhao and Zhao 2017 suggests some measures that the Supreme People’s Court (SPC) can take to enhance the accurate and coherent application of international law in China. In contrast, Cai 2016 analyzes the judicial application of international law in a larger context of the rise of China.

• Cai Congyan. “International Law in Chinese Courts during the Rise of China.” American Journal of International Law 110.2 (2016): 269–288.

  This article provides a unique understanding of the judicial application of international law in China. It examines the methodology that Chinese courts apply in international law. More importantly, by investigating what international law Chinese courts apply and what they do not apply, how they apply, and how they respond to China’s national development policy and foreign policy, this article explores how Chinese courts enhance the rise of China.

• Wang Meili. “Legislation Pattern for the Status of International Treaties in the Era of Civil Code.” Modern Law Science 43.1 (2021): 199–209.

  Article 142 of the General Principles of Civil Law (GPCL) adopted in 1986 provides that, where there are inconsistences between treaties and Chinese law, the former shall prevail. GPCL ceased to apply as the Civil Law Code (CLC) was adopted in 2020. Unfortunately, the CLC does not include a provision similar with Article 142 in the GPCL. There are two solutions. The better one is to clarify the status of international law in the Chinese Constitution. Alternatively, the SPC adopts “Judicial Interpretation” to clarify how Chinese courts apply treaties. In Chinese.

• Yu Zijin and Li Jiang. “Problems and Solutions: Judicial Application of Treaties in China.” Politics and Law 2016.8 (2016): 138–147.

  This article finds major problems in judicial application of treaties: “Judicial Interpretation” adopted by the SPC does not clarify on what occasions treaties may be directly applicable; judges often do not fully explain why treaties are or are not applied; many judges, especially those in the less-developed regions, have little knowledge of treaties. Thus, the SPC lays out criteria concerning treaty application, select “Guiding Cases,” establish the “Reporting System” on treaty application, and improve the capability building for judges, etc. In Chinese.

• Zhao Jun and Zhao Dandan. “The Supreme People’s Court and Perfection of the Judicial Application of International Treaties.” Journal of Zhejiang University (Humanitarian and Social Science) 47.2 (2017): 93–105.

  This article suggests that the SPC considers several measures to improve Chinese courts’ application of treaties. They mainly include the adoption of more “Judicial Interpretations” (Shi Fa Jie Shi) on treaty application, the selection of “Guiding Cases,” the establishment of “Reporting System” on treaty application, and the setting up of a new internal body within the SPC responsible for drafting “Judicial Interpretation,” selecting “Guiding Cases,” and replying to queries from local courts on treaty application.