The Deviations of China’s Treaty-Making Practices from Its Constitutional and Statutory Provisions?: An Interbranch Perspective

Abstract

Abstract This article studies how Chinese State actors address treaty practices that go beyond the wording of applicable law designated to separate the treaty-making power between the executive and the legislative branches, particularly whether the executive branch has exploited its institutional advantages in foreign affairs to circumvent the statutory interbranch checks amid the proliferation of treaties to which China has subscribed. Such practices concentrate on the following five issues: the textual inconsistency in the meaning attached to the term ‘treaty’ under different Chinese laws; the unclear distinction between important agreements and sole-executive agreements, and ministerial agreements; the State president’s lack of a constitutional or statutory grant of affirmative power to negotiate treaties; the State president’s non-performing role in ratifying treaties and important agreements; and the mismatch between the National People’s Congress (NPC) Standing Committee’s treaty-making power and domestic law-making power. This article concludes that problems of extra-textual practices, including difficulties in identifying the hierarchical order of a ratified/approved treaty and other consequences of ultra vires exercise of treaty power by the executive branch, do not occur in the Chinese treaty-making process. The State Council and its departments do not take advantage of sole-executive agreements to covertly expand their domestic affairs authorities and have prudently cooperated with the NPC and the Standing Committee to avoid violating applicable law. The ultimate decision-making power of the NPC Standing Committee in ratifying treaties and important agreements is warranted, and the mismatch between its treaty-making power and domestic authority has been solved through internal cooperation with the State Council and delegation of authority by the NPC. The president’s treaty-negotiation power has developed from the long-standing constitutional practices recognized by the State Council and the NPC, and the acquiescence of the NPC can also justify the president’s failure to perform a symbolic declaratory role in treaty making.