Introduction
China’s role as a global power has necessitated a robust and complex framework for entering into international treaties. As a permanent member of the United Nations Security Council and a major economic and political actor, China’s treaty-making process is a critical area of study for understanding its engagement with international law and global commitments. This article examines China’s constitutional framework for treaty-making, focusing on the legal mechanisms that enable the country to enter into international agreements. It also explores China’s approach to the relationship between international and domestic law, specifically whether it adopts a monist or dualist perspective, and how treaties are implemented within its national legal system. Additionally, the article assesses China’s position regarding the Vienna Convention on the Law of Treaties (VCLT) of 1969, and the implications of this stance for other countries engaging in treaty-making with China. By providing a detailed analysis of these aspects, this piece contributes to the broader discourse on international legal cooperation and China’s place within it.
Constitutional Framework for Treaty-Making in China
The treaty-making process in China is governed by its constitutional and legal framework, which delineates the roles of various state organs in negotiating, signing, and ratifying international agreements. The Constitution of the People’s Republic of China (PRC), adopted in 1982 and subsequently amended, serves as the foundational legal document outlining the authority and procedures for entering into treaties. Several key articles within the Constitution explicitly address the distribution of powers related to foreign affairs and treaty-making, reflecting the centralized nature of the Chinese political system.
Article 67 of the PRC Constitution vests the Standing Committee of the National People’s Congress (NPC) with the authority to “decide on the ratification and abrogation of treaties and important agreements concluded with foreign states” (Constitution of the People’s Republic of China, 1982, Article 67(14)). This provision establishes the NPC Standing Committee as a pivotal body in the treaty-making process, particularly for treaties deemed significant to national interests. The full NPC, as the highest organ of state power under Article 57, also plays a role in matters of exceptional importance, although its involvement is less frequent due to its periodic sessions. Instead, the Standing Committee often acts on its behalf to ensure efficiency in decision-making.
Additionally, Article 81 of the Constitution specifies that the President of the PRC, in accordance with decisions made by the NPC or its Standing Committee, “ratifies and abrogates treaties and important agreements concluded with foreign states” (Constitution of the People’s Republic of China, 1982, Article 81). This indicates that the President holds a ceremonial yet essential role in formalizing treaties, acting as the representative of the state in international relations. Meanwhile, the State Council, as the executive organ under Article 85, is tasked with managing foreign affairs and negotiating treaties under the direction of the NPC or its Standing Committee. Article 89(9) further empowers the State Council to “conduct foreign affairs and conclude treaties and agreements with foreign states” (Constitution of the People’s Republic of China, 1982, Article 89(9)), highlighting its operational role in the initial stages of treaty-making.
Beyond the Constitution, procedural details governing treaty-making are elaborated in the 1990 Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties (hereinafter referred to as the Treaty Procedure Law). This law provides a structured process for negotiation, signature, and ratification, ensuring that treaties align with national policies and legal standards. According to the Treaty Procedure Law, treaties requiring ratification must be submitted to the Standing Committee of the NPC for approval before the President can ratify them. For less significant agreements, the State Council has the authority to approve and conclude them without NPC involvement (Treaty Procedure Law, 1990, Article 7). This bifurcation reflects a pragmatic approach to balancing efficiency with oversight in treaty-making.
The constitutional framework underscores the centralized and hierarchical nature of China’s political system, where the Communist Party of China (CPC) exerts overarching influence over state organs, including in matters of foreign policy and treaty-making. While the Constitution formally allocates powers to the NPC, the President, and the State Council, the CPC’s leadership ensures that treaty-making aligns with national strategic objectives. This political dynamic is crucial for understanding how legal provisions are applied in practice, as decisions on treaties often reflect broader policy directives from the Party leadership.
Monist or Dualist Approach: China’s Position on International Law
A fundamental question in the study of international law is whether a state adopts a monist or dualist approach to the relationship between international and domestic legal systems. In a monist system, international law is automatically incorporated into domestic law upon ratification of a treaty, becoming directly applicable without further legislative action. In contrast, a dualist system treats international and domestic law as separate, requiring specific legislative measures to transform international obligations into enforceable national law.
China’s approach to this relationship is predominantly dualist, reflecting a deliberate choice to maintain sovereignty and control over the implementation of international commitments. Unlike monist systems where treaties might take precedence over domestic law or be directly enforceable in national courts, China requires that treaties be transformed into domestic legislation or administrative regulations before they can have legal effect within its jurisdiction. This stance is not explicitly articulated in the Constitution but is evident in legislative practice and judicial interpretation.
The dualist nature of China’s system is further reinforced by the Treaty Procedure Law, which mandates that treaties with provisions differing from existing domestic laws must be accompanied by legislative or administrative measures to ensure compatibility (Treaty Procedure Law, 1990, Article 17). For instance, when China accedes to international agreements that necessitate changes to domestic legal frameworks, such as trade agreements under the World Trade Organization (WTO), the relevant provisions are enacted through domestic laws or amendments to existing statutes by the NPC or State Council. This process ensures that international obligations are filtered through the lens of national priorities and legal traditions.
Judicial practice in China also underscores this dualist orientation. Chinese courts do not generally recognize treaties as directly applicable unless they have been incorporated into domestic law. This principle was illustrated in cases involving international human rights treaties, where courts have required reference to corresponding domestic legislation rather than direct application of treaty provisions. This approach allows China to maintain a clear demarcation between international commitments and domestic legal obligations, preserving state autonomy in implementation.
However, it is worth noting that China’s dualist approach does not preclude the influence of international law on its domestic system. In areas such as trade and environmental law, China has demonstrated a willingness to align domestic policies with international standards, albeit through a controlled process of legislative adaptation. This pragmatic adaptation suggests a hybrid tendency, where while maintaining a dualist framework, China selectively incorporates international norms to fulfill strategic objectives or global responsibilities.
Implementation of Treaties into National Law
The process of translating international treaties into national law in China is a multi-step procedure that reflects its dualist approach. Once a treaty is ratified by the NPC Standing Committee and formalized by the President, it does not automatically become part of the domestic legal system. Instead, the State Council or relevant ministries assess the treaty’s provisions to determine whether new legislation or amendments to existing laws are necessary for compliance. This assessment often involves consultations with legal experts, government agencies, and occasionally public input, depending on the treaty’s scope and impact.
For treaties that align with existing laws, no additional legislative action may be required, and implementation can proceed through administrative measures or regulations issued by the State Council. However, for treaties that conflict with or exceed the scope of current domestic law, the NPC or its Standing Committee must enact specific legislation to incorporate the treaty’s provisions. An example of this process is China’s accession to the WTO in 2001, which necessitated extensive reforms to domestic trade and intellectual property laws to comply with international standards. The State Council and NPC collaborated to revise numerous statutes, demonstrating the systematic approach to treaty implementation (Wang, 2007).
Furthermore, the implementation process is hierarchical, with central authorities overseeing compliance at provincial and local levels. The State Council often issues directives to local governments to ensure uniform application of treaty obligations, addressing potential disparities in enforcement across China’s vast and diverse regions. This top-down approach is consistent with the centralized governance structure and emphasizes the role of state control in managing international commitments.
Challenges in implementation often arise due to the complexity of aligning international norms with China’s socialist legal system, which prioritizes state sovereignty and Party leadership. For instance, treaties related to human rights or labor standards may face resistance or selective implementation if perceived as conflicting with national policies. Scholars have noted that China tends to prioritize economic and security-related treaties over those concerning individual rights, reflecting a strategic approach to international law (Li, 2015).
China and the Vienna Convention on the Law of Treaties (VCLT) 1969
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is widely regarded as the cornerstone of international treaty law, codifying customary norms governing the formation, interpretation, and termination of treaties. Often referred to as the “treaty on treaties,” the VCLT provides a comprehensive framework for ensuring clarity and stability in international agreements. As of the latest available data, 116 states have ratified the VCLT, and many others recognize its provisions as reflective of customary international law (United Nations Treaty Collection, 2023).
China, however, is not a party to the VCLT. It did not sign or ratify the Convention upon its adoption in 1969, largely due to historical and political circumstances, including its limited engagement with international legal frameworks during that period. Despite not being a formal party, China has acknowledged the VCLT’s significance as a codification of customary international law and often adheres to its principles in practice. For instance, in treaty negotiations and dispute resolution, Chinese diplomats frequently reference VCLT provisions, such as those on good faith (Article 26) and treaty interpretation (Articles 31-33), indicating a pragmatic acceptance of its normative value.
China’s non-ratification of the VCLT can be attributed to several factors. Historically, during the mid-20th century, China viewed some international legal instruments as reflective of Western dominance and was cautious about committing to frameworks that might limit its sovereignty. Additionally, as a state with a distinct legal and political system, China has preferred to engage with international law on a case-by-case basis, retaining flexibility in its treaty-making practices. Nevertheless, China’s participation in numerous bilateral and multilateral treaties demonstrates that its non-membership in the VCLT does not preclude adherence to internationally accepted standards.
For other countries engaging in treaty-making with China, this situation presents both challenges and opportunities. On one hand, China’s non-ratification means that it is not legally bound by the VCLT’s specific provisions, potentially creating uncertainty in areas such as treaty termination or dispute resolution if disagreements arise. On the other hand, China’s general adherence to customary international law, as reflected in the VCLT, suggests that treaties negotiated in good faith and with clear terms are likely to be respected. Foreign states are advised to ensure that treaty texts with China are explicit regarding interpretation, amendment, and termination clauses to mitigate potential ambiguities arising from differing legal perspectives.
Moreover, other countries should be aware of China’s dualist approach and the need for domestic implementation of treaty obligations. Treaties with China may require follow-up monitoring to ensure that commitments are translated into national law and effectively enforced. Engaging with Chinese counterparts through diplomatic channels and legal experts familiar with the PRC’s system can facilitate smoother treaty negotiations and implementation.
Implications for International Legal Cooperation
China’s treaty-making process and its approach to international law have significant implications for global legal cooperation. As one of the world’s largest economies and a key player in international organizations, China’s engagement with treaties shapes outcomes in areas such as trade, climate change, and security. Its dualist framework ensures that international commitments are carefully vetted and adapted to national contexts, which can delay implementation but also allows for tailored responses to global challenges.
The non-ratification of the VCLT, while notable, does not significantly hinder China’s participation in the international legal order. Many of China’s treaty practices align with global norms, as seen in its active role in negotiating agreements like the Paris Agreement on climate change and the Belt and Road Initiative’s numerous bilateral accords. However, the lack of formal commitment to the VCLT may occasionally lead to misunderstandings or differing expectations in treaty interactions, necessitating clear communication and robust legal drafting by partner states.
Furthermore, China’s treaty-making process reflects broader trends in its foreign policy, prioritizing sovereignty and strategic interests. Other countries must navigate this reality by balancing mutual benefits with an understanding of China’s legal and political constraints. Building trust through consistent dialogue and emphasizing reciprocity in treaty obligations can enhance cooperation and minimize potential conflicts.
Case Studies of Treaty-Making with China
To illustrate the practical application of China’s treaty-making framework, this section briefly examines two significant examples: the Sino-US Trade Agreement (Phase One, 2020) and China’s accession to the Paris Agreement on climate change (2016). These cases highlight how constitutional processes, dualist implementation, and international engagement interplay in China’s treaty practice.
The Sino-US Trade Agreement, signed in January 2020, aimed to address trade imbalances and intellectual property issues between the two countries. Negotiated under the purview of the State Council, the agreement required approval by the NPC Standing Committee due to its economic significance and impact on domestic policy. Post-ratification, China implemented commitments through administrative regulations and amendments to intellectual property laws, reflecting its dualist approach. This process demonstrated China’s ability to adapt international commitments to domestic frameworks while adhering to agreed timelines (Office of the United States Trade Representative, 2020).
Similarly, China’s ratification of the Paris Agreement in 2016 showcased its engagement with multilateral environmental treaties. Approved by the NPC Standing Committee, the agreement aligned with China’s national goals for carbon neutrality. Implementation involved a series of domestic policies, including renewable energy targets and emissions trading schemes, enacted through State Council directives. This case underscores China’s strategic approach to international commitments, balancing global responsibilities with national development priorities (United Nations Framework Convention on Climate Change, 2016).
Conclusion
China’s treaty-making process is a sophisticated interplay of constitutional authority, political oversight, and legal implementation, shaped by its dualist approach to international law. The Constitution of the PRC, through Articles 67, 81, and 89, establishes a clear framework for treaty negotiation, ratification, and abrogation, with the NPC, President, and State Council playing distinct but interconnected roles. As a dualist state, China ensures that international treaties are incorporated into domestic law through deliberate legislative or administrative actions, maintaining control over their application within its jurisdiction.
While China is not a party to the Vienna Convention on the Law of Treaties of 1969, its treaty practices largely conform to customary international law, providing a basis for reliable engagement with other states. For countries entering into treaties with China, understanding its legal and political context—including the need for domestic implementation and the influence of national priorities—is essential for effective cooperation. As China continues to expand its global influence, its treaty-making framework will remain a critical area for study, offering insights into the evolving dynamics of international law and state sovereignty.
References
- Constitution of the People’s Republic of China. (1982, as amended). National People’s Congress of the People’s Republic of China.
- Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties. (1990). National People’s Congress of the People’s Republic of China.
- Li, Z. (2015). International Law in China: Historical and Contemporary Perspectives. Chinese Journal of International Law, 14(3), 567-589.
- Office of the United States Trade Representative. (2020). Economic and Trade Agreement between the Government of the United States of America and the Government of the People’s Republic of China (Phase One Agreement).
- United Nations Framework Convention on Climate Change. (2016). Paris Agreement. United Nations Treaty Collection.
- United Nations Treaty Collection. (2023). Status of the Vienna Convention on the Law of Treaties. Retrieved from United Nations Treaty Database.
- Wang, G. (2007). China’s Compliance with WTO Commitments: Legal and Policy Perspectives. Journal of World Trade, 41(2), 387-405.
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