Recent years have seen a number of cases wherein Chinese courts actively apply international human rights treaties, despite the unclear status of international treaties in the Chinese legal system.
As the PRC Constitution does not stipulate the status of international treaties in the Chinese legal system, judicial views diverge on whether international human rights treaties can be applied in cases. Nevertheless, recent years have seen a number of cases wherein Chinese courts actively apply international human rights treaties.
The article Judicial Application of International Human Rights Treaties in China(我国对国际人权条约的司法适用研究) by Dr. Dai Ruijun(戴瑞君) published on Human Rights (No. 1, 2020) may help us understand the situation.
I. Overview of the cases
By now, China has ratified six core UN human rights treaties, namely, the Convention on the Elimination of all Forms of Discrimination Against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities, and has signed the International Covenant on Civil and Political Rights, which is yet to be ratified.
In China, up to 22 Nov. 2018, the parties or the courts had invoked international human rights treaties in at least 57 cases.
The six core human rights treaties ratified by China have all been invoked. Among them, the most frequently invoked one is the Convention on the Rights of the Child, which was cited in 20 cases. In addition, the Universal Declaration of Human Rights was invoked in 11 cases. It is worth noting that the International Covenant on Civil and Political Rights, which has not been ratified by China yet, was also cited in 9 cases. Besides, some cases referred to more than one international treaty.
Among these cases, the international human rights treaties were invoked actively by the courts, without parties’ mentioning, in seven cases; by the prosecutor in one case; and by the parties in 49 cases. Among the 49 cases in which the parties invoked international human rights instruments, the courts responded to the invocations in 8 of them, but evaded the question in the remaining 41 cases.
II. Characteristics of the cases
The cases involving the application of international human rights treaties in Chinese courts demonstrate the following characteristics.
1. Cases wherein the international human rights treaties were invoked by the parties
The parties mainly invoke the human rights treaties in the following three circumstances:
(1) filing litigation claims directly based on international human rights treaties;
(2) invoking both domestic law and international human rights treaties, to enhance the persuasiveness of their claims;
(3) taking the international treaties as evidence to prove their rights.
2. Cases wherein the international human rights treaties were invoked by the courts
Although there were only seven cases in which the courts had actively invoked international human rights, accounting for only 12.3% of the sample, considering that Chinese law does not clearly stipulate how to invoke international treaties, this phenomenon represents a breakthrough development.
The courts invoked international human rights treaties in the following circumstances.
(1) Invoking international treaties when domestic law is silent
In a case over disputes over child custody in surrogacy, the court holds that Chinese law is silent on this issue, and therefore it renders the judgment based on the principle of the best interest of children provided in Article 3 of the Convention on the Rights of the Child. (See the Civil judgment [2015] Hu No.1 Zhong Shao Min Zhong No.56 on the dispute over child custody between Chen Ying and Luo Ronggeng ([2015]沪一中少民终字第56号 陈莺诉罗荣耕监护权纠纷案民事判决书))
(2) Giving priority to international treaties based on the guidance of domestic law
In a dispute over child support in divorce, the court holds that referring to the Law on the Application of Laws to Foreign-related Civil Relations and the relevant provisions in the General Principles of Civil Law, the Convention on the Rights of the Child shall be applied in priority and thus holding that it is more beneficial for the children if they live with their mothers. (See the Civil Judgment [2013] Hu No.2 Zhong Min Yi (Min) Zhong No. 1661 on the dispute over divorce between Frank DiXXXXXX and Dong ([2013] 沪二中民一（民）终字第1661号， 弗某某·狄某某与董 某某离婚纠纷案民事判决书)).
(3) Invoking both international treaties and domestic law
When international treaties and domestic law both regulate a certain issue, the court invoke them simultaneously. For example, in an intentional homicide case, the court holds that Chinese criminal Law, Law on the Protection of Minors, Law on the Protection of Rights and Interests of Women, and the UN Convention on the Rights of the Child which China has joined all provide special protection to the life of children. (See the Criminal Judgment [2017] Yue 0115 Xing Chu No.255, on the Intentional Homicide Committed by Yang and Ma ([2017]粤0115刑初255号 杨某甲、马某故意杀人案刑事判决书))
(4) Applying domestic law when it’s consistent with international treaties
For example, in an insurance compensation case, the court holds that the relevant provisions of Law on the Protection of Minors, the Law of Succession, and the General Rules of the Civil Law all reflect the principle of the best interest of children provided in Article 3.1 of the UN Convention on the Rights of the Child, and then renders judgment based on domestic law.
3. Courts’ response to the parties’ invocation of international treaties
In most cases, the courts neglect the parties’ invocation of international treaties or evade the question. In a small number of cases, the court has given negative comments on the invocation based on the following grounds:
(1) Where the parties use international treaties as evidence, the courts hold that it has no relation with the facts of the case. (See the Administrative Judgment [2014] Shu Xing Chu No.00023 ([2014]蜀行初字第00023号行政判决书); the Administrative Judgment [2018] Jing 01 Xing Zhong No. 849 on the dispute between Li Peng and the Haidian Branch of the Beijing Administration for Industry and Commerce ([2018]京01行终849号 李鹏与北京市工商行政管理局海淀分局案行政判决书))
(2) Where the parties file claims based on international human rights treaties, the courts hold that such claims do not fall within the courts’ jurisdiction. (See the Administrative Ruling [2016] Zhe Xing Shen No. 834 on the dispute between Ye Xueqing and the People’s Government of Fotang County of Yiwu Municipal (叶雪青与义乌市佛堂镇人民政府案行政裁定书); the Civil Judgment [2016] Chuan 01 Min Zhong No.11274 on the dispute over liability for medical damage between Zhang Yubai and the People’s Hospital of Jinniu District, Chengdu ([2016]川01民终11274号 张玉柏与成都市金牛区人民医院等医疗损害责任纠纷案民事判决书))
(3) The courts believe that the international human rights treaties shall be transformed into domestic law, and thus cannot be directly applied. (See the Civil Judgment of [2018] Yu 05 Min Zhong No.2067 on the dispute over liability for products between Deng Debo and Inner Mongolia Yili Industrial Group Co., Ltd.( [2018]渝05民终2067号 邓德波与内蒙古伊利实业集团股份有限公司等产品责任纠纷案民事判决书)).
III. Our Comments
There has always been discussion in China on how Chinese courts should apply international treaties and how to place the international treaties in the Chinese legal system. By now, neither the National People’s Congress nor the Supreme People’s Court has clearly expressed their attitudes yet. The cases collected by Dr. Dai Ruijun may help us observe the parties’ need for applying international treaties, and the approaches of the courts in specific cases.
Contributors: Guodong Du 杜国栋
