3 The United Nations Convention …
49
Besides the above-mentioned principles, there are the principle of peaceful use,
the principle of flag state jurisdiction, the principle of universal jurisdiction, the
principle of cooperation and the principle of peaceful settlement of disputes set forth
in the UNCLOS.
3.4 Specific Practice of China in Accordance
with the UNCLOS
It is an important duty for a State party to the UNCLOS to incorporate principles
and the spirit contained in the UNCLOS into its domestic law for implementation.
This part expounds the specific practice of China in the law of the sea after brief
introduction to the relationship between international law and domestic law.
3.4.1 Relationship Between International Law and Domestic
Law
Regarding the relationship between international law and domestic law, there are two
schools: Monism and Dualism. Monism holds that international law and domestic
law belong to the same legal system; Dualism considers that international law and
domestic law are different legal systems. There are three theories on the effectiveness
of international law and domestic law: domestic law prevails over international law;
international law prevails over domestic law; international law and domestic law are
independent of each other.
27
In fact, there will be no practical result from the debate on the theories of the
relationship between international law and domestic law. The actual pathways and
concrete practices must be examined; the important thing is how every State applies
rules of international law in their internal legal order frameworks and how it resolves
the conflict between rules of international law and domestic law.
28 The issue is
about the status of international law within a domestic legal system and which one
prevails when international law and domestic law are in conflict. The effectiveness
of international law within a domestic legal system is different because different
States have different constitutional systems, but it is undeniable that, according to
Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke
the provisions of its domestic law as justification for its failure to perform a treaty.
That means domestic law may not prevail over a treaty, which is the principle of
forbidding to invoke domestic law.
29
27 Tieya (2004).
28 Jennings and Watts [10]; also see Jennings and Watts [ 11]. Sugihara [12].
29 Sugihara (12, pp. 78–79). Also see ICJ Reports, 1988, pp. 34–35, para.57; Vienna Convention on
the Law of Treatise, Article 27.
49
Besides the above-mentioned principles, there are the principle of peaceful use,
the principle of flag state jurisdiction, the principle of universal jurisdiction, the
principle of cooperation and the principle of peaceful settlement of disputes set forth
in the UNCLOS.
3.4 Specific Practice of China in Accordance
with the UNCLOS
It is an important duty for a State party to the UNCLOS to incorporate principles
and the spirit contained in the UNCLOS into its domestic law for implementation.
This part expounds the specific practice of China in the law of the sea after brief
introduction to the relationship between international law and domestic law.
3.4.1 Relationship Between International Law and Domestic
Law
Regarding the relationship between international law and domestic law, there are two
schools: Monism and Dualism. Monism holds that international law and domestic
law belong to the same legal system; Dualism considers that international law and
domestic law are different legal systems. There are three theories on the effectiveness
of international law and domestic law: domestic law prevails over international law;
international law prevails over domestic law; international law and domestic law are
independent of each other.
27
In fact, there will be no practical result from the debate on the theories of the
relationship between international law and domestic law. The actual pathways and
concrete practices must be examined; the important thing is how every State applies
rules of international law in their internal legal order frameworks and how it resolves
the conflict between rules of international law and domestic law.
28 The issue is
about the status of international law within a domestic legal system and which one
prevails when international law and domestic law are in conflict. The effectiveness
of international law within a domestic legal system is different because different
States have different constitutional systems, but it is undeniable that, according to
Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke
the provisions of its domestic law as justification for its failure to perform a treaty.
That means domestic law may not prevail over a treaty, which is the principle of
forbidding to invoke domestic law.
29
27 Tieya (2004).
28 Jennings and Watts [10]; also see Jennings and Watts [ 11]. Sugihara [12].
29 Sugihara (12, pp. 78–79). Also see ICJ Reports, 1988, pp. 34–35, para.57; Vienna Convention on
the Law of Treatise, Article 27.