Approaches of Chinese international legal doctrine and the laws of the PRC to the relationship between international and national law
Journal Title: Альманах міжнародного права - Year 2017, Vol 18, Issue
Abstract
In the present research, the author analyzes approaches of Chinese international legal doctrine and legislation of the PRC to the problem of relationship between the norms of international and national law. It is noted that at the constitutional level the issue concerned is not regulated. The absence of such provision can be explained by numerous factors, e.g., historical background, the influence of the USSR Constitutions, etc. Moreover, under traditional international legal doctrine in China, national and international law are in «natural consistency» with each other if the state duly performs its international obligations, so there’s no need for specific ruling on the issue of conflict between national and international law. According to Chinese scholars, an international treaty becomes automatically part of the national law as soon as the National People’s Congress ratifies it. As there is no transformation or incorporation of international law into national law, from this perspective the PRC is a monistic country. On the contrary, Hong Kong applies the dualistic theory. However currently a number of Chinese lawyers are actively advocating for the inclusion of the norm governing the balance of international and national law into the Constitution of the PRC. In connection with the reforms, as well as accession to the WTO, the PRC no longer focuses on the theory of «harmonious unity», but includes certain norms on the primacy of international law in the laws and other normative acts. Nevertheless, it is too early to speak about the primacy of international law as a common law principle in the Chinese legal system: some normative acts apply only to a well-defined circle of social relations, so there should be talk of a tendency to enshrine international law standards in certain areas of Chinese national legislation in the absence of reservations.
Authors and Affiliations
О. С. Данильченко
Keywords
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