Relationship Between International Law and Domestic Law in the New Era from the Perspective of the Rule of Law Application of Integration and Coordination Thinking
Zhao Jun, Xiao Yuqin
Guanghua Law School, Zhejiang University, Hangzhou 310008, China
Abstract：The relationship between international law and domestic law is a fundamental issue in the fields of international law. China is currently in a critical situation where there are intertwining of profound changes unseen in a century and the great rejuvenation of the Chinese nation. Accordingly, it is necessary to recognize and understand the relationship between international law and domestic law in the cognition for a new era. Adhering to the integration and coordination thinking is a necessary requirement to respond to the changes unseen in a century and the great rejuvenation of the Chinese nation and to reform the global governance system better. General Secretary Xi Jinping proposed to “adhere to the integrated promotion of domestic and foreign-related rule of law, accelerate the layout of foreign-related rule of law, coordinate the promotion of domestic and international governance, and better safeguard national sovereignty, security and development interests”. Therefore, to investigate the relationship between international law and domestic law has become the rightful meaning of the rule of law in China nowadays under the integration and coordination thinking.The conventional theories of the relationship between international law and domestic law under the legalism and formal logic fail to fully reflect the dynamic, pluralistic and just trends of governance reform and the appeals for order development. International law and domestic law are interrelated, interpenetrating and steadily interacting with each other. Under the systematic investigation of historical experience and contemporary practice, the relationship between international law and domestic law can be categorized into six types: locking, modeling, reverse force, cooperating, substituting and complementing. Locking refers to the incorporation of institutional design that reflects the will of a single or a few states into treaties to limit the legal status or rights of other countries and lock specific interests. Modeling means that the leading or practical rules could be the references to international or domestic lawmaking through rule-diffusion channels. Reverse force is reflected in the external pressure on a state to fulfil its international obligations through the conclusion of treaties, thus promoting the internal rule of law. Cooperating includes both the state’s active commitment to international obligations and its initiative and creativity in building a domestic legal system that is supportive of the international legal system in addition to its treaty obligations to achieve governance goals. Substituting and complementing focus on the functional transfer between the international rule of law and the domestic rule of law. The substituting occurs when the preference for international law or domestic law lessens the demands of the other party, for the same governance contents. Conversely, the complementing occurs when international law and domestic law support each other in governance functions.The relationship between domestic law and international law presents itself differently in terms of systemic influence, coordination relationship and functional level. Vertical differences in the level of rule of law, the identity orientation of a state, and the value orientation of the norms are important influencing factors in the relationship between the two. Modern states that have established a modern rule of law system are willing to and adept at utilizing the rule-of-law resources, and attach importance to the common values of humanity are more capable of achieving a healthy interaction between international law and domestic law. From the standpoint of integrating domestic and foreign-related rule of law, and coordinating the promotion of domestic and international governance, it is imperative to highlight the rule-of-law application of integration and coordination thinking, clarify how international law functions in domestic law system and its limits, rationalize the normative role of international law in safeguarding national sovereignty, development and security interests, and meanwhile, grasp the normative logic and reasonable boundaries of the extraterritorial application of domestic law, apply and finally construct a rule-of-law framework and incentive mechanism for domestic rules to shape the international legal discourse.
赵骏, 肖羽沁. 新时代国际法与国内法的关系形态[J]. 浙江大学学报(人文社会科学版), 2022, 52(11): 5-25.
Zhao Jun, Xiao Yuqin. Relationship Between International Law and Domestic Law in the New Era from the Perspective of the Rule of Law Application of Integration and Coordination Thinking. JOURNAL OF ZHEJIANG UNIVERSITY, 2022, 52(11): 5-25.
2022, Vol. 52 
