On The Direct Implementation On The International Treaties

Treaties are playing an increasingly important role in the international community as one of the main source of international law. In recent years, with the constantly expanding of the scope that international law could adjust, the status of treaties in the domestic law is becoming higher than ever. Pacta sunt servanda principle is the premise and guarantee of the observation of the international law and the development of international relation. According to pacta sunt servanda principle and regulations of Vienna Convention on the Law of Treaties, all valid treaties are binding on states and must be performed by states in good faith.Since the states have to comply with the duty that treaties regulated, they clearly will figure out the pattern of treaty execution. So contracting states must take necessary measures to ensure the performance of the treaties in its territory. In order to achieve the goal and target of the treaties, contracting states should executed treaties in good faith given consideration to both spatial extension and temporal duration.The subject of international law includes state, International organization and nations who are struggling for independence etc. Generally speaking, private law subjects such as individuals, corporations are hard to be bearers of rights and duties of treaties. It’s necessary that national institutions to make rights and duties comes into force to private subjects according to the regulations of domestic legal procedures when the content of treaties involves rights and duties of private subjects.The treaties-implementation, as well as embracement of treaties belong to internal affairs of one state, and generally regulated in its constitution. In some countries, such as Britain and Italy, embrace treaties by transformation, which means that treaty contents shall be transformed into domestic law. In this way, state institutions’ performance of treaty is actually the performance of domestic law.Most countries in the world embrace treaties by incorporation, regard treaties as sources of domestic law. Their judicial branch and executive branch will directly face the problem about the form of application of treaties in order to solve disputes. On the whole, the mode could be divided into direct treaties-implementation and indirect treaties-implementation. Direct treaties-implementation means that it’s unnecessary to transform treaties into domestic law for judicial branch and administrative branch to execute them as long as the treaty is embraced. Indirect treaties-implementation refers to that treaties must be transformed into domestic law through domestic law procedure when the treaty comes into implementation.Due to the fact that direct treaties-implementation and indirect treaties-implementation both have advantages and disadvantages, it’s the most widespread for many countries to take mixture mode. If the treaty itself require contracting parties to take indirect treaties-implementation or the treaty comes to alliance or territory etc., in such cases, indirect treaties-implementation clearly could make treaties correspond to domestic law excellently and decreases the probability of conflicts and contradiction of treaties and domestic law. However, we should notice that with the rapid growth of treaties and wideness of the scope that treaties could adjust, taking indirect treaties-implementations repeatedly will lead to increase of the cost of legislature. Besides, it goes against the performance of treaties and even risks taking national responsibilities. Direct treaties-implementation has many unique advantages such as easy, simple and efficient and it’s in favor of domestic application of treaties without transformation of domestic legislature.Chapter II analyzes the treaties-implementation practice of some foreign countries, especially the practice of the United States. The United States ‘practice of direct treaties-implementation has the longest history around world and it has the most profound effect on other countries. The constitution of the United States confirmed the highest legal status of treaties, and requires that state courts should be bound by treaties, which means that treaties could be implemented directly. Since Foster & Elam v. Neilson, the judicial practice of the United States divided treaties into “self-execution treaties” and “non-self-execution treaties” and discriminates the way to apply the treaties from treaties by seeking whether the contracting parties’ intention to implementation directly. Thins measure was followed afterwards. The judicial branch of the United States then developed this measure and further explained the measure. As a result, they formed four popular and well-accepted standards: the “intent-based” standard, the judiciability” standard, the “constitutionality” standard and the “private right” standard, which are quite valuable for our future practice.The procedure system of treaties-implementation of the United States is more mature, there are two methods to declare the implementation of treaties. One is case law that practiced and summarized in courts of different levels, and cases afterwards will be bound by these case law. Another is congress’ declaration directly in decision of treaties-ratification when the president is contracting the treaties.Other countries taking incorporation when accepting treaties are influenced by the practice of the United States, such as Holland, France etc.. Contracting authority belongs to administrative branch. If the treaties involve some significant issues like national security, territory, human rights and trade, it can’t be implemented directly. Other treaties-implementation will be determined by judicial branch case by case according to some standards.Chapter III introduces Chinese direct treaties-implementation and difficulties as well as solutions. We began to implement treaties after the founding of the People’s Republic of China. Compared to other countries, our practice is not so mature until now. The underlying reason is that there are no relative regulations in our constitution or constitutional documents. Law on the procedure of the conclusion of treaties regulates the legal procedure to contract a treaty. Our legislature about treaties-implementation could only be found in some special legislation such as General Principles of the Civil Law, maritime law and law of negotiable instrument, as well as some administrative regulation. These articles generally emphasize the attitude and solutions of direct treaties-implementation if there were conflicts between treaties and domestic law. Still, there are some invisible limitations when implementing treaties directly. For example, some regulations regard treaties as fallback provisions. There is no lack of successful practice of direct treaties-implementation in courts at all levels. Because of the decentralization and chaos of relative legislation along with limited scope of judicial interpretation, our situation of direct treaties-implementation is still not in a good state. It will has negative influence on our performance of treaty duties.We should improve our practice from the perspective of legislation and judicature referred to other countries’ reasonable practice. On the legislative aspect, we need to complete our constitution or constitutional documents on treaty-affairs, such as legal state of treaties and treaties-implementation, even introduce a special law on treaty series. It’s necessary to let go some invisible restriction on direct treaties-implementation. On the judicial aspect, we should reduce dependence on judicial interpretation. The Supreme Court may add a specialized agency to interpret treaties in case possible difficulties about treaties-implementation in future. The judges and administrative staff should seek for better understanding about treaties to promote our practice of direct treaties-implementation and well protect the parties’ benefits. In this way, we may establish a mature treaties-implementation system from the top down and perform treaty duties in good faith.