DAI Ruijun*

 

 

Keywords: court · human rights treaties · judicial application ·international law · domestic law

 

 

The judicial application of international human rights treaties means that a domestic court, within the framework of legitimate authority and procedures, uses the international human rights treaties that the country has acceded and ratified to handle a specific case¹. This process includes not only the situations where a court cites international human rights treaties, but also the situations where a court judges the applicability of the human rights treaties quoted by relevant parties and then decide the judgments.

 

The meaning of the judicial application of international human rights treaties can be analyzed from two perspectives — international law and domestic law. In terms of international law, it is about the application of international treaties within domestic legal systems. Specifically, it involves the following interrelated issues: whether lawmakers can incorporate international human rights norms into a country’s legal system; whether the incorporated treaties have direct legal effects (or direct applicability); and, in the case of treaty obligations going against the provisions stipulated in the domestic law, whether international treaties have an authority superior to domestic law. Generally speaking, “incorporation” is a prerequisite for a treaty to be applied in a state, but incorporation does not necessarily mean that the treaties can be directly applied; so we should take into consideration whether the treaties are “self-executing”² (some scholars also call this “direct legal force”³). Only self-executing treaties can be directly quoted by judicial organs and individuals, and only such treaties can be automatically applied within the domestic legal system.⁴

 

From the perspective of domestic law, experts and scholars have different understandings of what judicial application is. They distinguish “citation” and “application”. In a narrow sense, citation includes application but has a wider scope than application, but application refers only to when the cited law is used as the basis for judicial decisions. In the context of the Constitution, the provisions in the Constitution shall not be used as “applicable citation” to decide a case in a narrow sense, and “the court has no right to judge directly based on the Constitution.” However, such a theory holds a positive attitude towards the practice that Constitution can be cited in the legal reasoning section of a judgment, because according to some scholars, “such a practice focuses on citing the Constitution for reasoning, which can promote the implementation of the Constitution and maintain its authority.”⁵In a broad sense, citation is equivalent to judicial application. Those in favor of such an opinion hold that the most substantive criterion for judging whether it is judicial application lies in whether the cited law “has played a role in the trial of a case and whether the law has an impact on the outcome of the judicial decision”. In other words, in the process of hearing the case, we should examine whether the judge has applied “the legal concepts, spirit and rules enshrined in the cited provisions to identify facts and apply law for the purpose of settling disputes.” However, some scholars play down the arguments over the difference of the two above mentioned situations, saying that it is not important how the judgment is expressed, that “whether the Constitution is written in the main text column or the reason column of a judgment will not deny fact that the court has applied the Constitution.”⁶ Therefore, as long as it is a citation that affects the outcome of the final judgment, including those cited for reasoning or used as the basis for the judicial decisions, such practices should all be considered “applying the Constitution”.⁷

 

Therefore, the judicial application in international law carries a different meaning from that in domestic law. The application of treaties in international law is based on whether such treaties can be cited as legal sources to decide a case; as for the application of treaties in domestic law, if the treaties can be invoked, we should consider whether such treaties can be used as a basis for making judgments. The judicial application of international human rights treaties in China discussed in this thesis covers a series of issues ranging from the international law to domestic law. It not only discusses the citation of international human rights treaties in China, but also examines the specific situations in which human rights treaties are cited in domestic judicial practices. This thesis also analyzes judicial application in a broad sense, and discusses the legal reasoning for citation, the citation used as the basis for rendering a judgment,and the citation put forward by the parties in legal actions.⁸

 

How can we judge whether international human rights treaties can be cited? Most countries have stipulations in their Constitutions as to whether the international treaties they have joined are part of the country’s legal system and whether they have direct legal effects, so as to provide a basis and guidance for courts or individuals to invoke international treaties. The constitutions of some countries stipulate that international treaties that are properly approved and published can be directly applied in that country.⁹ This means that the international treaties that have been concluded are incorporated into the domestic law and become applicable as domestic law. The constitutions of some countries provide that the approved international treaties should be implemented in the country through making such treaties part of law,¹⁰ which means that the courts should apply domestic law that implement international treaties. There-fore, in general, whether domestic courts can apply international treaties depends on the constitutional arrangements made by the lawmakers of relevant countries.

 

Currently, China has ratified six United Nations core human rights conventions,namely the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Convention on the Elimination of All Formsof Racial Discrimination (ICERD), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of Persons with Disabilities (CRPD); and the International Covenant on Civil and Political Rights (ICCPR) that has been signed but is subject to approval. Whether these treaties can be directly invoked in judicial practices has always been a common concern in the theoretical and practical circles; however, the Chinese Constitution does not stipulate the relationship between international treaties and domestic laws, which has made the application of the treaties ambiguous. Practice is the only standard for testing the truth. Based on practice, the thesis examines whether there is judicial application of international human rights in China’s legal practice, and tries to explore the status quo, problems and reasons and possible suggestion for improvement of the judicial application of international human rights treaties in China.

 

 

This thesis focuses on the judicial application of the six UN core human rights conventions ratified by Chinese government. At the same time, the thesis also expands to explore the judicial application of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In addition to the judicial application conducted by the court, the thesis also reviews cases where the parties invoke human rights treaties. The specific method for reviewing is to use core words included in the international human rights treaties as the search terms,and check the search results in the relatively comprehensive judicial case databases such as the websites of China Judgments Online and the PKUlaw. The search results show specific situations that relevant provisions in international human rights treaties are cited in judicial documents, and based on such verdicts, the author analyzes the state of judicial application of international human rights treaties in China. Considering that parties and courts may not be able to accurately use the names of these treaties when citing international human rights treaties, the author tried a variety of combinations¹¹ when setting search terms in order to collect cases as comprehensively as possible; in a bid to expand relevant searching results, the author also searched the cases where the words “international human rights”, “human rights treaties”, “human rights conventions”, “United Nations human rights” appear in the judgment documents. The cases were searched by November 22, 2018. According to the searching results, at least in 57 cases, the parties or the courts have cited the articles in international human rights or the opinions in international human rights instruments. The statistics of this research sample are shown in Table 1.

 

This study did not set a time limit for cases retrieval, but the cases reviewed were concentrated in the last six or seven years. One of the important reasons may be that the website of China Judgments Online was put into service on July 1, 2013, so the cases recorded in the uploaded documents all happened after that date. In addition, the parties’ statements may not be fully recorded in previous judgment instruments. Perhaps some parties may have invoked international human rights treaties, but they were not included in the judgment instruments. For example, in one case, in which Xu Gao accused Beijing Lufthansa Center Co., Ltd. of infringing on his right of personality was heard by the Chaoyang District People’s Court in Beijing in 2000, the plaintiff filed a lawsuit based on the International Convention on the Elimination of All Forms of Racial Discrimination claiming racial discrimination on the part of the defendant. However, the court’s judgment did not mention this convention.¹² So, from the judgment of this case, it is impossible to know whether the parties have cited international human rights conventions. Given that the object of this thesis is limited to judgment instruments, the research sample only reflects the cases where the citation of international human rights treaties were recorded in the judgment instruments. Therefore, the time span of the sample cases cannot fully prove that the judicial application of international human rights treaties in judicial practice in recent years is more than that in the past.

 

The geographical distribution of the trial courts hearing the sample cases covers a wide range of areas, with 57 cases distributed in 16 provinces, municipalities and autonomous regions. Among them, Beijing had the most, with a total of 13; followed by Guangdong province, with a total of 12; five each in Zhejiang province, Shanghai, and Shandong province; Jiangsu province and Anhui province had three cases, respectively; Hebei province and Sichuan province each had two cases and Chongqing,the Ningxia Hui autonomous region, Liaoning province, Hainan province, Fujian province, Heilongjiang province and Hunan province all has one. As for the levels of the trial courts, the legal actions filed to the intermediate people’s courts have the most cases where international human rights treaties have been cited, with the number reaching up to 32, followed by grassroots courts with the number standing at 21. A similar situation occurred in another four cases tried by higher people’s courts. Although intermediate courts have more relevant cases than grassroots courts, we should not jump to the conclusion that the higher the level of court is for the trial, the more frequent the citation of international human rights instruments are. See Table 2 for details.

 

Sample cases show that in judicial practice, all of the six core human rights treaties ratified by the Chinese government have been cited, among which the Convention on the Rights of the Child has been cited the most, with the number of times reaching 20. Besides, the Universal Declaration of Human Rights has been cited in 11 cases. We should note that the International Covenant on Civil and Political Rights, which the Chinese government has not ratified yet are cited in nine cases. In Table 3, the numbers of cases where international human rights instruments are cited are more than those of sample cases, because in some cases more than one international human rights instrument has been cited. For example, a party in a case has invoked the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

 

There are four cases in which the parties have the intention to invoke international human rights treaties, but they only vaguely express “relevant international human rights conventions”, “principles of protecting international human rights”, “norms of international human rights law”, “regulations of international human rights”. This shows that the parties have a slight awareness of international human rights law, but they do not fully understand it.

 

Among the cases where relevant parties can indicate the names of the cited international human rights instruments, there are 32 cases clearly pointing out the specific provisions in the cited international human rights instruments, accounting for 56.1 percent of the total. This suggests that they have some knowledge of relevant human rights instruments.

 

 

Of the 57 cases, there are seven cases where the courts proactively cited international human rights treaties during the trial process even though the parties involved do not cite the treaties; there is one case where the procuratorate invoked human rights treaties as the prosecutor; and the remaining 49 cases are all invoked by relevant parties. Among the cases in which the parties invoked international human rights instruments,the court responded to the citations in eight cases; in the remaining 41 cases, the court seemed to take an evasive or attitude or ignored their invoking , and did not mention or comment on the international human rights instruments citied by relevant parties.

 

 

The research finds that in China, the ratified international human rights treaties have been invoked by both of the parties and the courts. Although compared with tens of millions of judicial cases, the number of 57 sample cases only accounts for a tiny proportion, we can still capture some obvious characteristics.

 

 

The litigants cited international human rights treaties or international human rights instruments in the following three situations. 

 

First of all, litigants lodged lawsuits or claims directly based on international human rights treaties. Some of the claims put forward by the litigants are specific and they defend their claims with justification. For example, the party of a lawsuit has cited relevant provisions in the ICESCR in a bid to prove the right to strike. To this end, the party involved also stated that the revision of the Trade Union Law in 2001 was part of efforts to ratify the the International Covenant on Economic, Social and Cul-tural Rights, which suggests that the right to strike is legally recognized in China.¹³ In some cases, the parties’ citation is too general and there are no specific claims, so it is

difficult to get a response from the court. For example, some litigants cited the the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women to ask for the country to protect human rights in line with the requirements enshrined in such conventions.¹⁴ The significance of these citations lies in playing an advocacy role.

 

Besides, litigants cited domestic laws and international human rights treaties to make their arguments more convincing. For example, in the two administrative reconsideration cases of Ye Xueqing et. al. vs. Jinhua Municipal Government¹⁵ and Ye Xueqing et. al. vs. Yiwu Municipal Government,¹⁶ the plaintiffs said that the local government has the legal responsibility to protect the legal rights of women based on domestic laws such as the Constitution and the Law on the Protection of Women’s Rights and Interests as well as Convention on the Elimination of All Forms of Discrimination Against Women. In the case of a motor vehicle traffic accident involving an insurance company and Mr. Nie, the plaintiff invoked Article 3 and Aritcle 27 of the Convention on the Rights of the Child and specific provisions in the Law on the Protection of Minors, requiring that the judicial organs should give top priority to the rights enjoyed by children.¹⁷

 

Third, litigants use international human rights instruments as evidence. For example,some litigants have submitted the Convention on the Rights of Persons with Disabilities ¹⁸ and the International Covenant on Civil and Political Rights ¹⁹ as evidence.This also shows that the litigants have difficulty in accurately understanding the legal nature of international human rights treaties, and are not sure whether the treaties can be applied as legal rules.

 

A common problem in the cases where litigants cited international human rights treaties is that these litigants failed to check and demonstrate whether China has ratified the relevant treaties or whether the relevant treaties are legally binding on China.For example, in the case concerning administrative confirmation of legal aid, the plaintiff cited relevant provisions of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights to explain that “international law recognizes that legal aid is a state responsibility,”²⁰ but they did not consider whether the relevant international law is binding on China. This also reflects that the parties

involved in individual cases invoke international human rights treaties with a certain degree of randomness.

 

 

Although there are only seven cases where the courts proactively invoked international human rights treaties, accounting for 12.3 percent of the total sample cases, it is worth noting. Given that it is not clear whether ratified international human rights treaty are part of Chinese legal system, we can say that litigants’ citation marked remarkable progress in the public’s awareness of human rights protection. The citation by courts symbolized state organs’ application of international human rights treaties,which is of great value in recognizing the status of international human rights treaties in the domestic legal system.

 

The citations of international human rights treaties by courts include the following aspects.

 

First, in the absence of clear legal rules in domestic laws, the courts invoked international treaties. For example, in the custody case regarding surrogacy, the court first clearly pointed out that regarding the legal status and custody of children born in surrogacy, “currently, there is no clear provision in our laws”, “the court follows the principle that any court shall not decline to render a judgment” and shall make a judgment based on the “basic legal principles and the guidelines enshrined in law”. The court subsequently invoked Article 3 of the the Convention on the Rights of the Child involving the principle of the best interests of the child, on the grounds that “China, as a country participating in drafting the convention and ratifying the Convention should also follow this principle in legislation and judicial practice. When the court decides which party shall have the guardianship, the interests of the children should be protected as much as possible.”²¹ The court ultimately determined who had the right to guardianship based on this principle.

 

Second, in some foreign-related cases, the court has prioritized the application of international treaties in accordance with the legal rules written in domestic laws. In the divorce case, given that China is a party to the Convention on the Rights of the Child, the court held that “in accordance with the relevant provisions of the laws applicable to foreign-related civil relations and the general rules of civil law on the application of law, the application of the Convention on the Rights of the Child shall be applied in the first place”. The trial court is consequently decided that “it is more beneficial for the children to live with the mother” based on the Convention.²² In this case, although the court applied international human rights treaties in line with relevant provisions of domestic laws, the case was still decided in accordance with the provisions of human rights treaties.

 

Both of the above-mentioned cases are examples in which courts cited human rights treaties to render their judgments. The difference is that in the “surrogacy case”, the court failed to fully justify why the international human rights treaties could be cited as a basis to make the final judicial decision as the court did in the divorce case.The court hearing the “surrogacy case” simply stated the ratified treaties could be applied, which crossed the gap between the international human rights treaties and China’s domestic legal system. The root of the problem lies in the lack of a “bridge” that can cross this gap in China’s current legal system-specific rules stipulated in the

Constitution or other basic law that can transform the norms of international human rights treaties into China’s domestic laws.

 

Third, the court invoked both treaties and domestic laws in a case, with judges referring to relevant international treaties and domestic laws as a basis for rendering their judgments. For example, in a case of intentional homicide, the court stated that “China’s Criminal Law, Law on the Protection of Minors, Law on the Protection of Women's Rights and Interests, and the Convention on the Rights of the Child” all pointed out that China has acceded to provide special protection for the right to life enjoyed by children; the defendant should be punished according to law to “fulfill the protection of children’s basic human rights enshrined in national law and international conventions.”²³ The court strengthened its argument by citing international treaties and domestic laws at the same time.

 

Fourth, interpreting domestic law in accordance with the provisions of international human rights treaties. For example, in a case related to insurance compensation, the court held that the relevant provisions written in the Law on the Protection of Minors,the Law of Inheritance and the General Provisions of the Civil Law all reflected the principle of the best interests of the child enshrined in Article 3 (1) of the Convention on the Rights of the Child. ²⁴ Then, following this principle, the court interpreted relevant legal rules in domestic laws and made a judgment. In this case, the court did not directly base the trial on the Convention on the Rights of the Child, but demonstrated that the provisions of the human rights convention have been included in relevant domestic laws. In other words, the provisions of domestic laws are consistent with the convention, so that case was tried in accordance with domestic law.

 

We should note that although in many cases the courts tried cases, clarified the rights and obligations among the parties, and decide legal responsibilities based on the principles, spirit, or even specific provisions in human rights treaties, in all of the verdicts, the court did not list human rights treaties in the legal reasoning section and simply cited relevant domestic laws. To describe this application that is not directly based on human rights treaties, some scholars define it as “indirect judicial application.²⁵.This definition is essentially the same as the distinction between citation and application at the beginning of this thesis. In order to avoid confusion, this thesis holds

that there are several situations in which Chinese courts invoke international human rights treaties, namely, direct citation of international treaties, incorporating the norms of international treaties into domestic laws, simultaneously citing international treaties and domestic laws, and interpreting domestic laws in line with international treaties. All of these can be grouped into the category that courts apply international human rights treaties.

 

 

In most cases, the courts gave no comments on litigants’ invocation of international human rights treaties. In the following cases, the courts made a negative evaluation of the litigants’ citing international human rights treaties.

 

First of all, the court gave different responses to the situation when the parties presented international human rights instruments as evidence. Some courts believed that the content of the evidence has nothing to do with the case-related facts that need to be reviewed and refused to accept these international human rights instruments as evidence.²⁶ Some courts pointed out that extracts of relevant provisions of international conventions are not evidence.²⁷

 

Besides, the courts held that the litigation claims or litigation subjects made by the litigants in accordance with international human rights treaties could not fall within the scope of the court’s judgment. For example, in the case of Ye Xueqing et. al.vs. Jinhua Municipal Government, the court rehearing the case held that the content stipulated in the international conventions invoked by the plaintiff did not belong to the administrative responsibilities in the sense of administrative law, and therefore did not meet the conditions for accepting administrative litigation²⁸. In a case involving liability for medical damage, one party requested the hospital to make compensation based on the Constitution and the Universal Declaration of Human Rights. In this regard,the court pointed out that the rights protected by the Constitution and Universal Declaration of Human Rights are different from the civil rights and interests stipulated in the substantive law of civil law.” Therefore, the court refused to hear the case.²⁹ In this case, the court denied the plaintiff’s claim on the ground that the rights enshrined in the Constitution and international human rights conventions were not justifiable.

 

Finally, on the grounds that international human rights treaties have not been incorporated into domestic laws and cannot be directly applied, the applicability of human rights treaties was denied. In a dispute over product liability, the plaintiff cited the Convention on the Rights of the Child to explain that the child is anyone who under the age of 18. In response, the court clearly pointed out that “the Convention on the Rights of the Child is an international convention and should be incorporated into domestic law before it can be applied in China. Therefore, the definition of ‘children’ should refer to relevant provisions in Chinese domestic laws”³⁰. Obviously, the judge in this case holds that in China, international treaties can only be applied after they have been converted into domestic law. However, the judge did not provide any legal basis to support this view, and it goes against a large number of civil and commercial judicial practices that directly apply international treaties.

 

 

 

The shift from outward-looking obligations to inward-looking obligations in the objects regulated by international law and the international norms are the important reasons for domestic courts to apply international treaties. Traditional international law is mainly concerned with “outward-looking obligations”³¹ between countries, which means the obligations implemented through actions between countries at the international level. With the increasingly “inward-looking” development of international obligations, international law began to explicitly require countries to take certain measures in their respective domestic legal systems.³² The inward-looking development of international law has offered a place for domestic courts to deal with the legal relations of international treaties.

 

International human rights law is a remarkable example. Different from traditional international law, international human rights law mainly adjusts the relationship between the state and the individuals within its territory and under its jurisdiction, with the focus on confirming individual human rights and stipulating that a state has to perform its obligations of protecting human rights. The “non-reciprocity” characteristics of the relationship between the state parties and their citizens embodied in international human rights treaties determine the inward-looking nature of implement-ing international human rights treaties,³³ which emphasize the specific implementation of the international conventions by the state at home. As some scholars have pointed out, treaties that adjust the relationship between rights and obligations between private individuals and the treaties that adjust the relationship between the state and private individuals all need to be implemented within a country, ”because individuals must resort to domestic legal procedures when claiming rights or requiring others to shoulder legal responsibilities.”³⁴ The non-reciprocity feature of international human rights treaties and the inward-looking nature of implementing human rights treaties also make the “foreign-related” factor irrelevant in the application of international human rights treaties. Whether foreign-related factors are involved is not a necessary prerequisite for the application of international human rights treaties. Only five of the 57 sample cases have foreign-related factors, and the remaining 52 cases completely dealt with domestic legal relations, which also prove this viewpoint.

 

 

Generally, international law only focuses on the final fulfillment of international legal obligations, but does not limit the specific ways that countries fulfill their obligations,so countries can decide how to implement treaties in their own countries. The particularity of the international human rights treaties is that it sets specific requirements for the state parties to adopt the judicial application treaties. The United Nations core human rights treaties that China has ratified and signed all regard judicial application as a way to perform their treaty obligations. For example, Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates “The State Party shall ensure that within its jurisdiction, everyone can by means of the competent domestic courts and other State organs against any violation of this Convention that violates its human rights and fundamental freedoms. Acts of racial discrimination, obtain effective protection and relief, and have the right to seek fair and adequate compensation or remedy from any such court for any losses suffered as a result of such discrimination.”Article 2 (3) of the International Covenant on Civil and Political Rights also has special provisions on judicial remedies for covenant rights. Other human rights treaties generally use the terms “all appropriate methods”³⁵ and “all appropriate measures”³⁶ to generally stipulate the obligations of the state parties, which actually cover measures to safeguard the rights through judicial methods. Other treaties, such as the Convention on the Rights of the Child, in addition to generally stipulating that a state party shall adopt all appropriate measures, which also expressly using court remedies as a kind of means for state parties to safeguard the rights in its provisions concerning protecting specific rights.³⁷ The specific provisions of international human rights treaties oblige states parties to fulfill the rights recognized in the conventions through judicial methods.

 

Given that the fact that the protection of rights in domestic laws is generally inferior to the provisions of international human rights treaties, each treaty body responsible for monitoring the implementation of human rights treaties hopes and recommends that the courts of state parties directly apply international human rights treaties. For example, the Committee on Economic, Social and Cultural Rights made it clear that the method of direct incorporation of international human rights conventions into domestic laws “avoids the problems that may arise from incorporating treaty obligations into domestic laws and lays a solid foundation for individuals to cite the provisions of protecting human rights in this treaty in domestic courts.³⁸ At the same time, the Committee on Economic, Social and Cultural Rights specifically raised the traditional debate on whether economic, social and cultural rights can fall within the scope of the jurisdiction.³⁹ “For most legal systems, no rights protected by international conventions do not have certain the provisions that make such protected rights subject to jurisdiction.”⁴⁰ The Committee on the Rights of the Child emphasizes that state partiesmust ensure that the provisions of the Convention on the Rights of the Child have legal effect in their domestic legal systems. The committee welcomes the fact that some countries have incorporated the convention into their domestic laws, and holds that such incorporation means the provisions of the Convention on the Rights of the Child can be cited in domestic trials and applied by judicial authorities. When some provisions in the Convention on the Rights of the Child go against the state party’s domestic laws or previous judicial practices, the convention will prevail in terms of judicial application.⁴¹ The Committee on the Elimination of Discrimination against Women has issued similar opinions.⁴²

 

Although the opinions or suggestions put forward by various treaty bodies are not binding on state parties, these opinions actually play a role in guiding states parties to fulfill their human rights treaty obligations, and guide countries to implement international human rights treaties. Countries are paying more and more attention to the opinions from treaty bodies and adjusting, to varying degrees, their respective measures to implement human rights treaties. Looking at the whole world, the practice of domestic courts using international human rights treaties to interpret laws or hear cases is be-coming a more regular practice than before.⁴³

 

 

Various treaty bodies continue to pay attention to whether international human rights treaties can be applicable in Chinese courts and whether they can be invoked by litigants, and have repeatedly raised such questions when reviewing China’s periodic reports on how such treaties have been implemented in China. The treaty bodies not only pay attention to the status of international human rights treaties in the Chinese legal system at the institutional level, but also pay attention to whether Chinese courts or litigants have actually invoked international human rights treaties. In 2004, the Committee on Economic, Social and Cultural Rights asked China “to what extent did Chinese courts invoke the ICESCR”.⁴⁴ In 2013, the committee again asked “whether everyone under the jurisdiction of the State party can invoke these rights in domestic courts”.⁴⁵ In 2006, the Committee on the Elimination of Discrimination against Women asked the Chinese government to list the cases accepted by Chinese courts and tribunals where the Convention on the Elimination of Discrimination against Women has been cited since the last report was reviewed.⁴⁶ In 2009, the Committee on the Elimination of Racial Discrimination asked China “whether Chinese courts received any judicial cases involving the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination”.⁴⁷. In 2013, the Child Rights Committee asked China to “clarify the Covention of the Rights of the Child’s legal status in China’s domestic legal system”, and inform the committee whether “Chinese domestic courts invoke the rights contained in the convention as grounds for judgment or guidelines for the interpretation of relevant legal norms”.⁴⁸ In 2015, the Committee against Torture made a similar inquiry.⁴⁹

 

The continued attention from the treaty bodies has indicated the course charted by the United Nations human rights bodies for judicial application of human rights treaties. They want to know about the judicial protection of human rights in China. At the same time, these continuous concerns will also bring about China’s reflection and exploration on the judicial application of human rights treaties.

 

 

Many Chinese laws and judicial interpretations stipulate that courts can directly apply international treaties under certain circumstances. For example, several laws, such as the Law of Negotiable Instruments, Marine Environmental Protection Law and the Civil Aviation Law, all provide that if the international treaties concluded or participated in by the Chinese government go against the corresponding domestic laws, the provisions of the international treaties shall prevail, except for those reserved by China. The Supreme People’s Court also provides guidance for domestic courts on the application of international treaties through judicial interpretations.⁵⁰ Accordingly, the court can directly apply international treaties. The judicial practice in this area is endless. Therefore, in certain areas where provisions have been clearly stipulated in laws or judicial interpretations, the practice that domestic courts directly applying international treaties to handle cases has taken shape in China.

 

However, in terms of international human rights treaties, in current laws we cannot find any clear guidance on how the courts can directly apply human rights treaties. Some scholars accordingly hold that, in line with Chinese laws, international human rights treaties are basically not directly applicable in domestic courts.⁵¹ People who hold this view are not in a minority.⁵² Some people have even suggested, “On the application of human rights treaties, the Supreme People’s Court may consider formulating judicial interpretations, making it clear that all human rights treaties shall be not directly applicable and shall not be applied in Chinese courts”.⁵³ This view rubs contrary to the tendency of the judicial application of international human rights treaties in China, the incorporation of international human rights treaties into the domestic laws recommended by UN human rights organs, as well as the attempts to enable individuals and courts to invoke human rights treaties in judicial activities.

 

In spite of the above-mentioned academic views, practice has opened the prelude to the judicial application of international human rights treaties. This aspect stems from the characteristics and requirements of international human rights treaties. On the other hand, it may benefit from the institutional possibilities in Chinese domestic laws.

 

 

The Chinese Constitution does not stipulate the legal status of international treaties. Therefore, we can’t find guidance on how to apply international human rights treaties in China from the current Constitution. But even though there are no specific provisions on this issue in the Constitution, this does not mean that the application of international treaties is prohibited in China’s judicial practice. Among the current 268 laws,⁵⁴ there are 48 stipulating the possibility of directly applying international treaties, which could support this opinion.

 

In terms of the law, although the term of application of “international human rights treaties” has not appeared in domestic laws. However, if we carefully analyze the legal relationships regulated by international human rights treaties and domestic laws, we will find that the domestic laws that allow the application of international treaties actually contain the situations where international human rights treaties can be applied.

 

First, the domestic laws that allow the application of international treaties include many basic laws, such as the Constitution, administrative law, civil law and commercial law, economic law, social law, criminal law and procedural law. Although international human rights treaties mainly focus on the obligation to protect individual human rights and national human rights, the scope of rights covered and the legal relationships involved are very extensive. International human rights treaties involve constitutional rights such as the right to vote and the right to be public servants, the right of personal freedom and personal safety free from violence, procedural rights such as

having access to seek judicial remedies, civil and commercial legal conducts, the right to marry and the right of family happiness, the right to work and the right to social security. Taking the marriage and family-related rights and civil and commercial rights as examples, from the perspective of domestic law, these rights are subject to regulation of the civil law. If some provisions in the General Rules of Civil Law are different from those in other domestic laws, the provisions of international treaties shall prevail, which possibly results in the application of international human rights treaties.

 

Second, the legal relationships involved in international human rights treaties are not limited to the relationships between the individual and the public power of a state, but also includes the relationships between the individuals and other private subjects. This is because the state bears the obligations of respecting, protecting and fulfilling human rights under the international human rights law. A state should not only ensure that all national institutions and their representatives “respect” individual human rights and fundamental freedoms without interference or infringement; or that national institutions proactively take necessary measures to provide opportunities and create conditions for “fulfilling” individual human rights; a state also shoulders the obligation of protecting human rights. Such a “protective” obligation requires a state take measures to prevent other individuals or groups from infringing on the legal rights, freedoms or properties enjoyed by others.⁵⁵ For example, Article 2 (d) of the Convention on the Elimination of Discrimination against Women states that the states parties agree to pursue by all appropriate means a policy of eliminating discrimination against women, undertaking to take concrete steps to eliminate discriminatory laws, policies and practices in the national legal framework.” Article 2 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination also makes similar provisions. Judging from the 57 sample cases applying international human rights treaties, the cases cover three areas of civil law, administrative law and criminal law, of which civil cases account for the largest proportion with the number reaching 33, followed by the administrative cases and criminal cases, with the number respectively standing at 18 and six. This shows to a certain extent that the cases where international human rights treaties could be applied are not limited to the ones dealing with public power and personal relations. In order to fulfill the obligation of “protecting” human rights, a state should not only prevent it by making laws, it also needs to investigate,file prosecution and impose punishment on the individuals who violate the human rights of others. Therefore, the judiciary as a state institution plays an unavoidable and irreplaceable role. If there are no provisions in the domestic laws or the provisions need further improvement and the ratified international human rights treaties happen to have relevant provisions, the courts shall resort to international treaties instead of refusing to render a judgment.

 

International human rights treaties are likely to become part of China’s legal system through the provisions that allow the application of international treaties, due to the wide range of rights involved and the broadness of the legal relationship being regulated. Therefore, the provisions in some domestic laws that allow the application of international treaties can provide a legal ground for Chinese courts to apply human rights treaties. However, it is worth noting that most of the provisions allowing the application of international treaties appear in foreign-related chapters, which means lawmakers intend to guide judges to apply international treaties in case of handling legal relationships with foreign-related factors. This is different from the characteristic that the application of international human rights treaties does not require foreign-related factors. Recently, some scholars have suggested that international treaties cannot be regarded as unsuitable for handling all of the domestic civil relations without foreign-related factors. After the judiciary has carefully considered the intention of the country to conclude international treaties and the opinions of the legislature, it can decide to apply international treaties to those cases without foreign-related factors.⁵⁶ If this opinion is adopted, it will further remove the obstacles to the courts’ application of international human rights treaties.

 

 

The Supreme People’s Court has repeatedly provided guidance on which normative documents the courts can invoke in trial activities. In 2009, the Supreme People’s Court limited the scope of normative documents that courts can cite in their verdicts, saying that in order to meeting the needs for trying cases, normative documents falling outside the realm of laws, regulations, and judicial interpretations can be used as legal grounding for reasoning if such documents are considered legal and valid after review.⁵⁷ In 2016, in a document aiming to standardize the verdicts in civil cases, the Supreme People’s Court clearly excluded the citation of the Constitution from the “legal basis” for rendering a judgment. However, the document allows the “illustration on the principles and spirit embodied in the Constitution in the legal reasoning section of judgments”.⁵⁸ In 2018, the Supreme People’s Court gave a broad interpretation of the arguments that the court can use to explain the reasons for judgments. In addition to laws, regulations, and judicial interpretations, courts can invoke self-evident truth, reasonable consideration, empirical laws, trading practices, private regulations, professional ethics, legislative materials, legal principles, and prevailing academic views.⁵⁹

 

Although none of the above documents explicitly mentioned “international treaties”, we can hold that they provide an indirect legal ground for judicial organs to invoke international human rights treaties in reasoning: international human rights treaties, as laws that are legally binding on China, are clearly belonging to normative documents; As a “law”, the binding effect of human rights treaties is obviously higher than self-evident truth, principles, experience, common practice and academic views,and should become the first reference for courts to interpret the reasons for judgment.

 

 

The popularization of the concept of human rights at home and abroad has greatly enhanced the awareness of rights in all sectors of society; the extensive human rights education has raised the level of human rights-related knowledge mastered by officials and the public. It is foreseeable that against the backdrop of comprehensively advancing the rule of law, litigants whose rights have been violated and the courts responsible for safeguarding social fairness and justice will be faced with a question of how to use international human rights to protect their legal rights, just like the role played by domestic laws. When the scope of vision and knowledge enjoyed by the judicial practitioners is extended to international law, the application of international treaties in judicial practice will become a natural result. In the sample cases the relevant parties cited international human rights treaties in more than 85 percent of the cases, which highlight litigants’ strong sense of protecting their legal rights and the attempts to seek judicial remedies. The court, as an applicator of the law, is obviously more cautious than litigants. Nonetheless, in recent years, we can see more cases where courts have applied international human rights treaties,⁶⁰ and such practice enables us to see a positive trend of the judicial organs applying human rights treaties.

 

Consequently, the inherent characteristics and specific requirements of international human rights treaties, the possibilities of China’s current legal system and the awakening of the judicial organs have all contributed to the application of international human rights treaties in China’s judicial practice.

 

 

Overall, Chinese courts’ application of international human rights treaties is still in its infancy. Among the sample cases, there are fewer cases that the courts proactively invoked international human rights treaties, and such cases mostly occurred in recent years. The specific application situation is even more varied.

 

First of all, the courts in different regions have very different views on whether the application of international human rights treaties could be allowed in judicial practice. From the perspective of courts, they apparently consider themselves qualified to apply human rights treaties. In sharp contrast, some courts have clearly expressed the view that courts cannot directly apply international human rights treaties, holding the opinion that human rights treaties must be incorporated into domestic laws before such application, or those human rights treaties stipulate symbolized rights and such rights cannot resort to justice. More courts chose to remain silent when faced with a large number of litigants’ citations. Perhaps the reason behind the silence is that these courts are uncertain about whether human rights treaties can be applied in judicial practice. These three scenarios indicate that the court system has not yet reached a consensus on this issue, and even holds conflicting opinions sometimes.

 

Second, the courts applying human rights treaties failed to give convincing reasoning. On the one hand, the court did not explain why the human rights conventions were invoked and why they could be invoked, or the explanations were too brief and vague. Most courts justified their application of international human rights treaties based on the facts that China has entered into such conventions. However, they haven’t considering further whether being a party to a treaty means direct application of such a treaty, which showed the cognitive limitations of the judges in charge the case on the multiple connotations of the relationships between international law and domestic law. On the other hand, in most cases, the courts did not analyze the meaning of the cited clauses, and the relevance between the cited clauses and the cases is not fully explained. In some cases, the courts only quoted the names and related content of the international human rights treaties, but did not specify which articles are citied from the human rights treaties, which reflected that the courts need to improve their reasoning section in case of citing human rights treaties.

 

The root cause of the courts’ ambiguity about the applicability of international human rights treaties is that the Constitution or other laws do not specify how to ap-ply international human rights treaties. Therefore, for a court that is willing to apply human rights treaties, whether human rights treaties can be used as a basis or a reason for judgments, whether it should be specifically invoked or merely as a general reference, which are issues that all need further guidance and regulation.

 

Although the implementation of international human rights treaties through domestic legislation does not go against the practice that the domestic courts directly apply human rights treaties. On the contrary, when the provisions in international human rights treaties are different from domestic laws, or domestic laws don’t provide rules for judges to make judgments but international human rights treaties do, on such occasions, the application of human rights treaties by courts is not only necessary but also appropriate. However, under the current situation where written law serves as the main judicial basis, the law without express provisions will not bring greater discretion for the judges, but this will lead to chaotic judicial practice and inconsistent official attitudes. Therefore, it is urgent to regulate standards for applying international human rights treaties in China from the perspective of top-level design.

 

 

From the perspective of the application of international human rights law, whether it is invoked by litigants or applied proactively by the courts, it is a positive exploration we should hail. The application of international human rights treaties in judicial activities can make up for the limitation of rights protection caused by the legal loopholes in domestic laws and regulations.⁶¹ Meeting the requirements of the international human rights conventions, China has acceded to is a specific measure taken by the state to implement human rights treaties, and it is also a strong demonstration of the success in China’s human rights education. It should be fully affirmed. But at the same

time, the problems exposed by existing practice and the tension between practice and the current system cannot be ignored.

 

 

In a few cases, there are sharply opposing views on whether the courts can directly apply human rights treaties. This is the outcome caused by the lack of relevant institutions and theoretical disputes, and such influence has extended to judicial practice. Therefore, to support courts to apply international human rights treaties from the perspective of domestic law, it is necessary to fill the gaps scattered in institutions in a timely manner and provide the basis that courts can depend on to apply human rights treaties.

 

Judicial practice needs stronger legislative support. Some scholars pointed out that without the explicit authorization of the National People’s Congress and its Standing Committee, courts only have the obligation to apply or not to apply international treaties approved by the legislature, and have no authority to decide whether to apply such treaties.⁶² In other words, whether the ratified international treaties are part of the Chinese legal system and the scope of the “law” on which the courts’ trial activities are based must be clearly stated by the legislature. The vast majority of courts choose not to apply and many scholars argue that the court cannot apply international human rights treaties. The fundamental reason is that it is difficult to find a clear authorization in domestic laws. Therefore, without the explicit authorization of the Constitution or other basic laws, the limited practice that courts apply international human rights treaties is likely to be questioned for its legitimacy. If we hold a positive attitude toward the courts’ practice of applying international treaties, we must fill in the gaps in legal norms and build a legal bridge for the application of international treaties.

 

 

In order to justify courts’ application of international human rights treaties and ensure the unity of law and judicial practice, the most direct and fundamental solution is to clarify the legal status of international treaties, including international human rights treaties, in the Constitution. Taking into consideration the specific situation of human rights treaties, this thesis attempts to make the following preliminary recommendations.

 

First, the Constitution can stipulate the relationship between international treaties and domestic laws through “incorporation”. The “incorporation” means recognizing that the international treaties concluded by China are part of China’s legal system. The constitution of a country’s legal system is a fundamental issue that should be resolved by the Constitution. In the absence of relevant provisions in the Chinese Constitution,there are already a large number of provisions in other laws saying that international treaties can be applied. Obviously, the legal basis of such practice is absent. If the Constitution clearly states that “the international treaties concluded by China are part

of the Chinese legal system”, it will provide legal grounds for applying international treaties stipulated in lots of current laws. Meanwhile, this would give competent judicial organs authority to apply international human rights treaties.

 

Second, as mentioned at the beginning of the thesis, “incorporation” does not mean international treaties can be directly applied, and a further distinction should be made according to the nature of the treaties. Considering the broadness of the matters covered by international treaties and the differences in norms and standards, it is difficult for the Constitution to make uniform provisions on the application of different treaties. Therefore, in order to make the application of the treaties more flexible and reasonable,⁶³ in combination with the current practices, the application of different types of treaties may be left to the legislature to clarify in separate laws, or the NPC Standing Committee shall clarify each item when it decides to ratify a treaty.⁶⁴ In terms of the treaties that competent judicial organs fail to give clear guidance, the application of such treaties can be handled by courts according to the actual situation in judicial practice. After a certain accumulation of judicial practice, the Supreme People’s Court can issue judicial interpretations to clarify the specific ways to apply a treaty or some provisions in a specific treaty.

 

Finally, in terms of human rights treaties, some may be concerned that the nature and measures to protect human rights might vary due to the different natures of various rights, and it is not an appropriate to allow all of the rights to seek legal remedies in courts. This concern stems from the enduring debate on the nature of civil and political rights and economic, social and cultural rights. In the context of specific rights, the gradual fulfillment of rights protection is not incompatible with the state party’s obligation to “take immediate measures”. As the UN core human rights treaties have all established individual complaint procedures, the disputes over the litigation of different rights is about to come to an end. As some commentators have said, China’s prudent attitude towards courts’ application of international human rights treaties does not have much to do with whether the rights in dispute are litigable.⁶⁵

 

 

Worldwide, the mainstreaming of human rights not only manifests itself in the fact that lawmakers in a rising number of countries make international human rights treaties superior to domestic laws through writing relevant provisions into their Constitutions,but also in the continuous practice that more judges regard international human rights treaties and even the opinions of the treaty bodies as the legal basis for interpreting laws and hearing cases. The direct application of international human rights treaties by domestic courts has become a widespread practice all over the world. Even the countries that have always been always been regarded as pursuing “dualism” have frequently cited international human rights instruments in judicial practice.⁶⁶

 

As an important party that actively accepts international human rights standards and deeply participates in international human rights governance, China’s judicial institutions are proactively trying to join the general trend of applying international human rights treaties. The national legislature should protect and encourage such attempts, fill the institutional gaps in time, in a bid to make the practice of judicial application of human rights treaties more standardized and give due play to the international human rights treaties in our country.