A Study On The Application Of International Maritime Treaties In China’s Courts

So far,China has concluded and participated in 25 international maritime treaties and their protocols.According to the principle of pacta sunt servanda,China has the obligation to comply with the international maritime treaties concluded or participated in that have entered into force.How to implement international maritime treaties in domestic level and harmonise the relationship between international maritime treaties and domestic laws have become hot issues for research in the international jurisprudence and maritime law circles.On the issue of the domestic application of international treaties,scholars in China have conducted more in-depth research,the subject of which involves the status of treaties in China’s domestic law,the mode of application,the conditions of application,etc.However,the existing studies on international treaties or international maritime treaties still suffer from insufficient empirical research and incomplete research samples.Based on a comprehensive search,collection and analysis of cases on the application of international maritime treaties in China’s courts,this paper finds that among the international maritime treaties to which China is a party and has concluded,11 international maritime treaties have been applied in China’s courts.Among them,the International Convention for the Prevention of Collision at Sea(ICOC),the International Convention for the Safety of Life at Sea(SOLAS)and the International Convention on Civil Liability for Oil Pollution Damage(CLC)have been applied in the largest number of cases.On the basis of sorting out and analysing the above cases,it was found that there were three more important problems in judicial practice,such as insufficient research on the doctrine of international treaties,inconsistent application of international maritime treaties and inconsistent order of application of treaties.On this basis,the causes of the above problems are analysed.With regard to the problem of insufficient reasoning of treaty application,it can be divided into two situations,such as the lack of reasoning of treaty application and insufficient reasoning of treaty application,which appear in the cases of public law maritime treaty application and the cases of private law international maritime treaty application respectively.For public law international maritime treaties caused by the lack of treaty reasoning problems,mainly due to the lack of domestic legal level to take over the norms and the differences in the function of the treaty in the trial caused.The lack of international treaty reasoning form norms and neglect of the role of domestic law on the incorporation of provisions of private law international maritime treaties is the cause of the inadequate reasoning of the application of treaties arising from the cases of application of private law international maritime treaties.For the problem of inconsistent application of international maritime treaties,the reason for this is that the application of international maritime treaties is judged by a relatively coarse standard,and domestic law fails to provide a unified and clear standard The reason for this is that the language of Article 268(1)of the Maritime Law is ambiguous,so that in judicial practice,when the provisions of international maritime treaties and domestic laws are consistent,the practice of applying different laws arises.In response to the causes of the above problems,this article suggests that a principle "incorporation" clause should be included in the China’s Consititution to make it clear that international treaties are part of China’s legal system,and to provide a source of validity and basis for the application of treaties in the interpretation of the law.With regard to the form of maritime treaty reasoning,it is proposed to improve the provisions on the format of treaty application reasoning in view of the specificity of treaty application reasoning.In respect of the mode of application of maritime treaties,it is proposed to amend the provisions of the Maritime Law and the judicial interpretation to construct the provisions of the Maritime Law on the application of treaties in the mode of direct application of treaties,and at the same time to stipulate in the judicial interpretation the basis of application of international maritime treaties of public law and the criteria for judging the mode of application of international maritime treaties.In terms of the order of application,the priority of application of international maritime treaties is clarified in the Maritime Law and the judicial interpretation.