韩永红教授在《China Legal Science》2024年第6期发表论文《PROMOTING THE APPLICATION OF THE PRESUMPTION OF CONFORMITY TO TREATY IMPLEMENTATION》。

International law is made internationally but implemented basically ‘domestically’. As prescribed by customary international law and the Vienna Convention on the Law of Treaties, a binding treaty will create the obligation of performance for the states that have signed and/or ratified it. However, international law is ‘neutral’ in terms of how it should be implemented or performed in the domestic sphere. Therefore, states have a considerably wide margin of discretion in determining how to implement their treaty obligations within the framework of their domestic laws. Some treaties even recognize and support such discretion of states expressly. This flexible position is a realistic response to the lack of enforcement mechanisms in the international sphere and the respect for states’ sovereignty. However, on the other hand, it leads to the variety and fragmentation of treaty implementation in different states. Although monism and dualism provide useful theoretical foundations to analyze and classify state practices in dealing with the relationship between international law and domestic law, no actual dichotomous practice exists. Few states adopt an entirely ‘monist’ or ‘dualist’ approach but instead use different methods to implement treaty obligations. The actual adopted method of treaty implementation depends on mixed factors such as the state’s legal tradition. Such variety and fragmentation bring about inconsistency and indeterminacy in the treaty implementation and compliance with treaty obligations by states. To improve the state’s compliance with treaty obligations, to some extent, is to promote the unification and harmonization of the methods of treaty implementation by states. As Archimedes, the ancient Greek philosopher, is reported to have said, ‘Give me a lever long enough and a fulcrum on which to place it, and I shall move the world’. Efforts should be made to find a ‘fulcrum’ among the various methods to implement treaty obligations adopted by states.

Looking through the lens of various methods, we find the principle of the presumption of conformity may be the possible ‘fulcrum’. Although the precise term and extent may vary, many states have established the principle of the presumption of conformity or an analogous approach under which domestic laws are interpreted in conformity with the international legal relations of the states. These states consist of common law systems such as Australia, New Zealand, the United Kingdom, Canada, and the United States, and civil law systems such as Germany, Italy, Poland, Romania, and Japan. In these states, the presumption of conformity is adopted as an aid to domestic law interpretation and a means of indirect application of treaties. The common practice of the states in applying the presumption of conformity bridges the great variety of state practices in the implementation of treaty obligations, thus offering a direction for enhancing compliance with treaties among different states. The common reception of the presumption of conformity essentially rests on that it meets the demand of states to strike an appropriate balance between domestic law and international law. The Chinese scholar emphasizes the indispensability of the principle of the presumption of conformity in deciding foreign-related cases. ‘The principle of the presumption of conformity can alleviate the impact on domestic law caused by the direct application of treaties, and can also integrate domestic law and international law through case-by-case judgments.’

Instead of simply mechanically enforcing international law, domestic courts frequently produce hybrid international/national norms through the process of nationalization. While the principle of the presumption of conformity has been established and applied widely in states, problems have been revealed for its inconsistent application in domestic courts. A general problem is how far the principle of the presumption of conformity can go and what are the ways forward. Sub-problems related to it include but are not limited to (1) Is there any approach to promote the application of the presumption of conformity in domestic spheres? (2) Is there any approach on the international plane to promote the application of the presumption of conformity in domestic spheres while considering the flexibility required by states? A closer comparative study on the application of the presumption of conformity will contribute to the possible solutions to the above-mentioned problems.

This article focuses on the legislation, practice and scholarship on the application of the presumption of conformity in China. China’s legislation and practice on the principle of the presumption of conformity are little noticed or discussed at home or abroad. However, the promulgation of the Law on Foreign Relations of the People’s Republic of China is expected to change the situation at home, and articles 30 and 31 shed new light on the prospectus of treaty implementation in China. The Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases, which came into effect on January 1, 2024, provides further guidance on the implementation of the treaty. It comes to an appropriate moment to examine the legislation, practice and scholarship on the application of the presumption of conformity in China. For China, drawing on the experience of other states is necessary and beneficial. Canada is among the leading states in judicial practice on the presumption of conformity. The presumption of conformity is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. Canadian courts have invoked and applied the presumption of conformity in several important decisions over the decades, mainly involving intellectual property treaties and taxation treaties. However, there remain some controversies and inconsistencies as to whether the presumption of conformity applies only to interpreting ambiguous laws. And the judiciary has been criticized for approaching the interaction of domestic and international law without a clear and consistent methodology even though it deals with the issue frequently. This article, after discussing and comparing the methods and rules developed in the application of the presumption of conformity in states, explores similarities, differences, and problems in the application of the presumption of conformity between the states. There is a functional similarity in the application of the presumption of conformity, essentially requiring the domestic courts to interpret domestic law in a way that is in conformity with or at least not in conflict with their treaty obligations. The common problem existing in the application of the presumption of conformity among states is the lack of consistency and predictability. The states are struggling to strike the appropriate balance between preserving the discretion to incorporate treaties into their domestic law and the reputation to comply with international treaty obligations. As a tool helping states relieve from the dilemma, proposals for promoting the application of the presumption of conformity are respectively put forward at the domestic level and international level. This article opines that a collaborative framework to promote the application of the presumption of conformity should be developed. Additionally, it suggests that a soft law instrument should be drafted by the International Law Commission (ILC) at the international level to promote the application of the presumption of conformity.