On the Autonomous Application of International Treaties in China's Foreign-related Judiciary
Ratification or non-ratification represents two states of effectiveness for international treaties,while selec-tion and exclusion are two forms of manifestation of party autonomy.Beyond the obvious scenario where parties may consensually exclude the application of unratified treaties,the combination of these factors in China's foreign-related ju-dicial practice has created three forms of autonomous treaty application that require examination:consensual application of ratified treaties,exclusion of ratified treaties,and consensual application of unratified treaties.The Interpretation by the Supreme People's Court on Several Issues Regarding the Application of International Treaties and International Practices in Foreign-related Civil and Commercial Cases,which comes into effect on January 1,2024,outlines the do-mestic application of international treaties but remains unclear about the relationship between international treaties and party autonomy.In practice,the consensual application of ratified treaties faces contradictions between practical and logi-cal aspects;the exclusion of ratified treaties encounters a misplacement of norms and exceptions;and the consensual ap-plication of unratified treaties suffers from improper qualification and choice.Following the release of the Civil Code,it is essential to appropriately manage the normative order between national public will and party autonomy in the domes-tic application of treaties,promoting a positive interaction between the two.In the current context of"legislative va-cancy",it is crucial to leverage the judicial interpretations of the Supreme People's Court,particularly through guiding cases and the synergistic effects of party autonomy.However,the ideal solution would be to swiftly enact relevant legis-lation to substantiate the legitimate rationale for the autonomous application of treaties.
Foreign-related JudiciaryInternational TreatiesAutonomy of Will
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