CHINA
CHINESE LAW ON INTERNATIONAL TREATIES
- Governing legal instrument: Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties (Law of the PRC on the Procedure of the Conclusion of Treaties);
- Adopted on: 28 December 1990;
- Entry into force: On the same date.
1. Definition and Scope of application of Treaties
- Form: No specific form is prescribed; the scope covers treaties, agreements, and other instruments of a treaty-like or agreement-like nature.[1]
- Parties: Treaties are concluded between the People’s Republic of China and foreign counterparts.[2]
- Treaties may be concluded in the name of:[3]
+ The People’s Republic of China;
+ The State Council (Government) of the People’s Republic of China;
+ Ministries or departments subordinate to the Government.
2. Procedure for the Conclusion of International Treaties
The procedure is organized in a strict and hierarchical manner, depending on the designation under which the treaty is concluded and the importance of its subject matter.
Step 1: Decision to negotiate and conclude
The authority to decide on negotiation and conclusion depends on the designation of the treaty:
- In the name of the State: The Ministry of Foreign Affairs or a relevant competent authority (in coordination with the Ministry of Foreign Affairs), prepares the draft and submits it to the State Council (the body equivalent to the Government) for examination and decision;[4]
- In the name of the Government: The procedure is generally the same as above, with the decision made by the State Council. However, with respect to agreements concerning specific business or sectoral matters, the competent authority may decide independently after obtaining the consent of the State Council;[5]
- In the name of ministries or departments: The decision is made by the respective ministry or department itself (which may consult the Ministry of Foreign Affairs). If the matter is significant or involves the competence of another ministry or department, it must be submitted to the State Council for decision.[6]
Note: Where substantial amendments are made during negotiations in comparison with the original draft, the matter must be resubmitted to the State Council for reconsideration.[7]
Step 2: Full Powers
To negotiate and conclude a treaty, the representative must be vested with formal authority:
- At the State/Government level: Full powers are issued and signed by the Premier of the State Council or the Minister of Foreign Affairs;[8]
- At the ministerial level: Authorization to sign is granted by a written authorization signed by the head of the relevant ministry or department.
Where the foreign counterpart requires formal full powers, such full powers shall be issued and signed by the Premier of the State Council or the Minister of Foreign Affairs;[9]
- Cases exempt from the requirement of full powers: The Premier of the State Council, the Minister of Foreign Affairs, the head of a diplomatic mission (when negotiating with the receiving State), and the head of a ministry or department (with respect to agreements within its own competence) are not required to produce full powers.[10]
Step 3: Expression of consent to be bound (Ratification / Approval)
A. Ratification: The power to ratify treaties is vested in the Standing Committee of the National People’s Congress, and ratification is approved by the President of the People’s Republic of China.[11]
The following categories of treaties are subject to mandatory ratification:[12]
- Treaties of friendship, cooperation, peace, and other political treaties of a similar nature;
- Treaties relating to territory and boundary delimitation;
- Treaties concerning judicial assistance and extradition;
- Treaties containing provisions that are inconsistent with the laws of the People’s Republic of China;
- Treaties in respect of which the parties have agreed that ratification is required;
- Other treaties that require ratification.
B. Approval: With respect to agreements that do not fall within the above categories requiring mandatory ratification but are required to undergo approval—either at the request of the State Council or pursuant to an agreement between the parties—the power of approval rests with the State Council.[13]
C. Filing and Registration: Agreements that require neither ratification nor approval shall be submitted to the State Council for filing, or, in the case of agreements concluded at the ministerial level, registered with the Ministry of Foreign Affairs.[14]
Step 4: Entry into Force and Exchange of Instruments
- Exchange or deposit of instruments:[15]
+ Ratification: The Ministry of Foreign Affairs shall exchange instruments of ratification with the counterpart in the case of bilateral treaties, or deposit such instruments with the depositary in the case of multilateral treaties. Instruments of ratification are signed by the President of the People’s Republic of China and countersigned by the Minister of Foreign Affairs;
+ Approval: The Ministry of Foreign Affairs shall carry out equivalent procedures for the exchange of instruments or transmit a diplomatic note of notification through diplomatic channels. Instruments of approval are signed by the Premier of the State Council or the Minister of Foreign Affairs.
- Accession and Acceptance:
+ Accession to a multilateral treaty is decided by the Standing Committee of the National People’s Congress or the State Council, depending on the nature of the treaty;[16]
+ Acceptance of a multilateral treaty is decided by the State Council.[17]
- Language: Bilateral treaties normally have two authentic texts, in Chinese and in the language of the counterpart State, which are equally authoritative, or may include a third language serving as the authoritative reference text.[18]