On The Internal Application Of International Treaties And Our Country's Countermeasures

Theoretically speaking, there are various theories on the relationship between international law and domestic law, and we can get monism and dualism in general. In the theory of monism there are international law priority and domestic law priority. Both monism and dualism have their own advantages and disadvantages. In order to get over flaws of the traditional monism and dualism, the academic circles sought and explored continuously and finally established a new theory—the theory of coordinating the international law and domestic law , which gets rid of bondage of the traditional theories and explains the relationships between international law and domestic law by a new conception. Meanwhile this theory gets more and more agreements by its advantages in academic truss.In practice, some questions, for instance, how to put international law into effect and how to deal with the conflict between international law and domestic law,are not answered by consulting the theory due to the sovereignty principle of each nation. So the problem of treaty applicability based on the analysis of legislation and judicature of each nation is tried to discuss in this paper. In practice, the relationship between international treaty and domestic law involves tow aspects: from the perspective of international law, NO.26 of Vienna Convention on the Law of Treaties (1969) says:"Every treaty in force is binding upon the parties to it and must be performed by them in good faith ."NO.27:"A party may not invoke provisions of its internal law as justification for its failure to perform a treaty .This rule is without prejudice to article 46."1 Therefore, international treaty has priority compared with domestic law. A country must obey the international treaty once it concludes an agreement with other countries, otherwise it will take responsibility for the international law; from the perspective of domestic law, how to carry out the treaty in a country is the issue of domestic law under the circumstance when Vienna Convention on the Law of Treaties (1969) and other relational international treaties have no idiographic rules about how to implement the obligation of treaty.Mr. Li Haopei divided domestic execution of treaty into three parts: firstly, the acceptance of treaty on domestic law (transformation or integration); secondly, automatic implement of treaty and un-automatic implement of treaty; thirdly, the status of treaties in domestic law and domestic law itself. So the following three issues on intestine treaty applicability will be discussed in the paper: first, the proper way of using treaties within the country; second, the status of treaties in domestic law; third, the way to solve problems when treaties have conflict with domestic law.Base on this condition,the author probes into the practice in China of the treaty applicability and proposes that China should take flexible way, clearing the way to solve problem when international treaty conflict with domestic law and its status, and different with the flexible way. But no matter what countermeasure takes, China should persevere the principle of prevention primarily, and pay attention to the correspondence between international treaty and domestic law to avoid their conflict when legislating law and ratifying treaty.