Die Anwendung völkerrechtlicher Verträge in China – zur innerstaatlichen Bedeutung des chinesisch-australischen Konsularabkommens

In the Rio Tinto case, a Chinese court rejected the request of the Australian government to allow its consular officials to observe the non-public part of the criminal proceedings against an Australian national. Australia's request was based on a bilateral consular agreement that provided for an unrestricted right of consular attendance and a provision of Chinese domestic law that instructs courts to permit foreign consular attendance at non-public trials. The decision of the court raises the question of the domestic effects of international treaties in China, particularly whether treaties are directly applicable by courts. The right of consular attendance under the bilateral agreement serves the individual rights of the foreign defendant. A broad interpretation of Chinese criminal procedure rules that exclude consular trial observers as part of the public constitutes a violation of the Chinese-Australian consular agreement. The study also explores various domestic provisions that implement international consular agreements and the problems of their application in practice. The article concludes that the approach of selective treaty implementation by way of statutory reference provisions give judges wide discretionary power in the application of treaty provisions. This may lead to the result that courts prefer the domestic provision which is inconsistent with an international obligation, although reference norms provide for the prior application of treaties.