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Conflict And Application Between Bilateral Investment Treaty And Multilateral Treaty

Posted on:2020-01-22Degree:MasterType:Thesis
Country:ChinaCandidate:W T LiFull Text:PDF
GTID:2416330623453508Subject:International Law
Abstract/Summary:PDF Full Text Request
With the acceleration of globalization,countries are more dependent on the international law to regulate intricate international relations,in order to minimize the anarchy of the international community and avoid the proliferation of the law of jungle.As the most basic element of international relations and the most important source of international law,international treaties cover various fields,such as politics,economy,trade,culture and judicial assistance.The political field is mostly regulated by jus cogens,the cultural field itself seeks the development of diversity and does not pursue a unified formative road.As to judicial assistance,it involves the authority of a country's sovereignty.Therefore,there are fewer conflicts between bilateral and multilateral treaties in these three fields explained above.However,in the economic and trade field,since it has the most full exchange of interests under bilateral cooperation and the most efficient capital transfer under the multilateral cooperation environment,it has always been the “main battlefield” of bilateral treaties and the“test field” of multilateral treaties.In a general sense,due to the profound changes in the nature and composition of international law,the lack of a unified legislative and judicial organs in international community,the complexity of the domestic political system and the formulation of foreign policies,etc.,there is no structural or organic connection in international treaties,and the fragmentation of international law is intensifying in this context,therefor,the issue of treaty conflict is significant.From the perspective of China's international practice,the China-ASEAN Free Trade Area,the Asia-Pacific Free Trade Area(Trans-Pacific Partnership Agreement),the SCO,the European Union and otherregional organizations have developed rapidly in the past two decades.It is particularly noteworthy that,with the EU as the representative,the degree of integration of regional organizations becomes deepening,and the close cooperation among all members of the region has continuously impacted the United Nations and WTO.International economic and trade,political system.It is true that the Vienna Convention on the Law of Treaties provides a possible solution to the conflict of treaties,but it is clear that with the rapid development of international law practice in recent years,the Convention is obviously unable to solve this problem.In theory,the concept of “treaty conflict” can be divided into a broad sense and a narrow sense.The essence of an international treaty is an international legal norm.In terms of its basic constitution and function in the legal sense,it is in line with the legal norms in the domestic legal system.Its functions mainly include command,prohibition,authorization and exemption and the general manifestation of conflicts is mainly reflected in the opposition of these four functions in specific articles.Therefore,the meaning of “treaty conflict” goes far beyond the case of conflicts between obligations,but rather that a treaty's provisions will result in or may result in a violation of another treaty's provisions.In terms of its manifestation,there are theoretical classifications of “real conflicts and false conflicts”,“intrinsic conflicts and conflicts in applicable law”,while in reality,the conflict between bilateral treaties and multilateral treaties is expressed as “AB-ABC"(or “ABC-AB”)and “AD-ABC”two major types.There are general principles to solve treaty conflicts,but at the same time,the conflicts between bilateral treaties and multilateral treaties also have their own particularities,and are mainly embodied in three aspects: connotation,subject of responsibility and solution.First,in terms of connotation,in the context of international relations,bilateral treaties refer to the institutional form that coordinate the relationship between two countries based on individual special considerations;multilateral treaties refer to coordination based on appropriate universalized principles of action.From the perspective of legal behavior,“international legal acts” also conform to the three major “private law legal acts” elements of autonomy of the will,declaration of will and legal effect.And it also distinguishes bilateral and multilateral by “national declaration of will” and “national vote”.Secondly,because of the different inherent nature between bilateral treaties and multilateral treaties,the consequences of conflict between them are different from the general stateresponsibility,and most of them lead to the commitment of third-parties' responsibilities.Finally,on the perspective of the conflict,no matter the method of interpretation of the treaty or the application of the conflict resolution of the treaty is different from general situation.In fact,in the course of long-term international cooperation and international conflicts,the international legal scholars have been actively exploring and practicing effective means of coordinating conflicts,and theoretically formed “conflict clauses”,“lex posterior” and “lex specialist degrota legi generali”.The “conflict clause” is the primary method for conflict resolution of treaties.And it refers to the provision which is intended to determine the relationship between different treaties.However,because the conflict clause usually involves the interrelationship among multiple subjects,especially those involving the third parties,if the multi-party relationship cannot be balanced,the role of the conflict clause will be seriously restricted.The dilemma and theoretical gap of conflict rules in practice show that the use of conflict clauses still needs more support from international law theory.The “lex posterior” is an important statute law principle for resolving treaty conflicts,mainly embodied in Article 30,paragraphs 3 and 4 of the Vienna Convention on the Law of Treaties.This principle assumes that the same institution intends to repeal the provisions that contradict the new law.Therefore,when the conflict occurs,the chronological order is the foundation to determine which should be applied first.But we should note that the application of this principle has strict requirements such as “same subject of the matter” and “same department”.In addition,the difficulty in applying the principle is also caused by the determination of the time dimension of the “former treaty” and the “later treaty”,and it may be more difficult to solve this issue if the parties are different in the two treaties.“Lex specialist degrota legi generali” is one of the most important principles of customary law to resolve conflicts in international treaties.Its application needs to meet the requirements of “the conflict does exist” and “the problem that the special law and the general law deal with are the same matter”.In practice,the distinction between “general” and “special” and the application of this principle and “post-law principle” mainly depend on “the last will of the state”.The difficulty of applying the above theory has enabled international organizations to develop a more operational judgment model in practice.The EU wasthe first organization to deal with bilateral investment agreements signed by its member states,so they had a important reference value.The conflicts between bilateral treaties and multilateral treaties that occur under the EU system can be divided into two types:(1)BITs between EU Member States and third states(extra-EU BITs);(2)BITs between EU Member States themselves(intra-EU BITs).In dealing with intra-EU BITs conflicts,Court of Justice of the European Union(CJEU)defended the EU integration process.In the case of the European Commission v.Italy,the idea of separating “rights” and “obligation” in the treaty was proposed,and the criteria for judging the validity of internal BITs were further clarified in the case of the East Sugar Company v.Czech Republic to establish the guideliness for European law over domestic law.However,in dealing with extra-EU BITs conflicts,the CJEU has gradually formed three solutions:“the effectiveness of EU law is superior to the external BITs concluded by member states”,"notification and review of exta-BITs in the EU" and "the transfer of power to the EU,and the whole is consistent against the third parties".In a nutshell,the EU's approach in practice can be divided into four modes:(1)apply VCLT strictly;(2)follow the“multilateral treaty” priority model;(3)perform “notification + review” process before the conclusion of bilateral treaties;(4)abolish BITs,and transfer power to the unity,making it as the subject to negotiate with the third parties.In the Chinese context,the conflict between bilateral treaties and multilateral treaties is concentrated in the relationship between “China-EU” and “China-ASEAN”,especially in the investment field.EU is the highest development of regional economic integration in the world.EU is also the world's second-largest economy.Dealing with the relationship between China and EU countries BITs and EU law plays a pivotal role in China's foreign relations.At the same time,ASEAN has not only become a new growth point of the world economy in recent years,but also play an irreplaceable role in One Belt and One Road.It is also increasingly important to deal with the relationship between China-ASEAN Countries BITs and the CAFTA Investment Agreement.In order to resolve or coordinate the conflicts between international treaties formulated by these institutions,it is not enough to rely solely on methods such as lex posterior and lex specialist degrota legi generali.The resolution of treaty conflicts not only needs to improve the legal theories of resolving treaty conflict,but also seeks a clear and effective mechanism of cooperation and coordination between different international treaty regimes and countries,and finallyforms a set of solutions to the fragmentation of international law and treaty conflict.Based on the theory and practice,the following two aspects of improvement are particularly important.First,we must use interpretation and revision as a access to improve the legal theory of conflict resolution.As far as the interpretation method is concerned,it is necessary to emulate the interpretation system of domestic legal norms,improve the interpretation methods of international treaties and introduce new interpretation rules as a supplement to the existing interpretation methods.From the amendment to the approach,increase the treaty amendment rules to ensure the final resolution of treaty conflicts.Second,we must reform the practical mechanism for conflict resolution of treaties by means of coordination and cooperation.In the first place,deepen the direct synergy between international organizations and third-party countries in the areas of information exchange,mutual participation in meetings,development of cooperation understandings and memoranda;in the next place,strengthen the role of the United Nations in coordinating cooperation between different treaty regimes;and finally,improve international cooperation between non-governmental organizations and different treaty regimes.Third,in the form of amendments,the treaty amendment rules will be added to guarantee the final resolution of treaty conflicts.Fourth,we must reform the practical mechanism for conflict resolution of treaties by means of coordination and cooperation.
Keywords/Search Tags:Treaty Conflicts, Bilateral Treaty, Multilateral Treaty, Application of Treaty
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