摘要： 《维也纳条约法公约》赋予各国广泛的自由裁量权以决定如何履行条约。由于条约——尤其规制性条约——对缔约国的影响不断增强等原因,国内法院适用条约变得更加复杂,导致条约司法适用制度实践的国别化趋势日益明显。为完善我国条约司法适用制度,有必要确立衡量这一制度的基本标准和构成体系。这一制度既要有效保障我国法院准确适用条约,也要恰当体现我国宪制架构、对外关系目标等背景性因素,包括条约效力和解释等在内的构成性要素和机构间关系和能力建设等在内的支持性要素。完善我国条约司法适用制度应当特别重视统筹推进国内法治和涉外法治、推进国家治理体系和治理能力现代化、百年未有之大变局,尤其是《对外关系法》的颁布实施等新背景提供的新机遇、提出的新要求及带来的新挑战。机构间关系安排对于我国完善条约司法适用制度,尤其法院准确适用条约具有特殊重要性,我国立法、行政与司法部门应当努力构建完善的机构间关系安排。

关键词: 条约, 司法适用, 衡量标准, 机构间关系, 涉外法治

Abstract: States, under the Vienna Convention on the Law of Treaties of 1969 (VCLT), are granted broad discretion over how to apply treaties; especially, due to the growing impacts of treaties, which especially refer to regulatory treaties, how domestic courts apply treaties becomes more complicated and accordingly the judicial system of treaty application has been more nationalism-oriented.Therefore, in order to improve Chinese judicial system of treaty application, we should firstly identify the benchmark and constituents for this system.That is, this system should not only ensure accurate application of treaties by courts, but it should also consider the relevant background factors, including constitutional framework, foreign policy purposes In addition, it should include both constitutive elements (including effect and explanation of treaties) and enabling elements (for example, inter-agency relations and capacity building).Especially, China, in improving the judicial system of treaty application, should consider the new opportunities, new demands and new challenges deriving from the changed background of the collaboration between domestic rule of law and foreign-related rule of law, the modernization of national governance system and governance capability, the profound transformation of international landscape and, especially, the enactment of the Law of Foreign Relations.Due to the significance of the inter-agency relationship on the improvement of judicial system of treaty application and, especially, the accurate application of treaties, Chinese legislature, executive and judicial branches should work on better inter-agency relations arrangement.

Key words: Treaties, Judicial Application, Benchmark, Inter-Agency Relationship, Foreign-Related Rule of Law