Formation and development of doctrines on the correlation of international and national law

Samovich Yuliya Vladimirovna Doctor of Law Professor, the department of State Legal Disciplines, Russian Academy of Justice 420001, Russia, respublika Tatarstan, g. Kazan', ul. 2ya Azinskaya, 7a, of. 212 juliasamovich@gmail.com Other publications by this author

Marukhno Ekaterina Yur'evna Postgraduate Student, Department of Theory and History of State and Law, Kemerovo State University 650000, Russia, Kemerovo region, Kemerovo, Krasnaya str., 6 katja-marukhno@yandex.ru

�

�

For more than a century, researchers have been discussing the interaction of international and domestic law, and to this day we do not know when and how these names and phenomena occurred. Classical international law states that each State has the right to independently choose and develop relations between its domestic legislation and international law ^[16]. In accordance with the principles governing international law, States are obliged to implement the treaties concluded by them, as well as to determine their application by legislative, executive and judicial authorities. However, international law does not define the conditions under which norms emanating from treaties should be integrated into national legislation.

Domestic law, which is logical, develops, forms and "matures" already at a time when states were not yet known. The development of law was strengthened by states, and the struggle for power and territories equality and freedom, which led to wars not only with Turkey, but also between Christian states (between France and England, even the "Hundred Years' War". The Westphalian Compromise (1648), ending "Thirty Years" of war "between Catholic and Protestant states, establishes a political and legal basis for strengthening state communities created in different conditions of Europe. Under these conditions, States developed domestic law more than international law, peace or war depended on the assessment of the power relations of specific subjects. Based on this, an understanding of international law has been created exclusively as an external law through which States bind themselves within their borders. The understanding of the state as the highest value is affirmed. This theory was introduced in the 18th century. By J. Moser (1701-1785), later by Bergbom and finalized by Georg Jelinek (1851-1911) ^{[15, p. 376]}. It was a denial of international law, which, despite the efforts of other States, eventually led to the First World War.

The question of the need to change the interaction and correlation of national and international law was raised in 1899 by the German scientist G. Tripel in the work "Volkerrecht Und landrecht" and in a "flexible form" by his supporters D. Ancilotti in "Cours de droit international", M. Viralli, L. Oppenheim ^[14].

G. Tripel outlined the theory of dualism, proclaiming the existence of two equally great, but different, though overlapping and closely interrelated, systems. Tripel wrote that international and domestic law are not only different branches of law, but also different legal systems. These are two circles that closely touch, but never intersect ^{[8, p. 10]}.

At the turn of the XIX�XX centuries. Tripel proceeded from the independent existence of international and domestic law, which allowed him to draw a conclusion about dualism from a dogmatic point of view.

Supporters of the concept of dualism believe that there cannot be any conflicts between domestic and international law, since these systems do not have a single object - the provisions of domestic law are applied exclusively within the state and cannot interfere with the international legal system ^{[12, p. 43]}. Dualistic theory, according to Professor A. Berramdan, defines domestic and international law as two separate, independent legal systems with common international responsibility ^{[10, p. 17-18]}. According to the fair remark of Professor L. Ferrari-Bravo, a series of historical events predetermined the further development of science, including the theory of dualism - at the end of the XIX century. most European countries adopted constitutions that enshrined the liberal principle of the rule of law, therefore there was a need for a more thorough definition of the concept of the implementation of international standards in the domestic sphere ^{[1, p. 4]}.

Ferdros adopted the term "dualism" and part of Tripel's theory, assessing international law as part of the country's legal order. Later he will say that the term is unfortunate, because it can be valid only for one country, and not for all ^{[17, p. 16]}.

Professor M. Viralli wrote about the dualistic theory of international law: "The two law enforcement agencies are not clearly separated and accept each other's strength" ^[14]. In other words, from an institutional point of view, domestic and international law interact, overlap, since the delegation of powers of state bodies to international bodies and organizations takes place.

According to A. Fuer, according to the theory of dualism, the norms of the state should be applied in national legislation. If they contradict international agreements or obligations, this leads to the international responsibility of States. Thus, the dualistic theory asserts a clear distinction between the two systems of law and speaks of the need for the existence of a normative act on the transfer of a contract from international to domestic law and order ^[11].

With the formation and development of the concept of dualism, various approaches to solving the question of the relationship of law and order arose within its framework. Theorists of international law have developed a variation of dualism called "dialectical" or "moderate" dualism and have successfully applied it in their research ^{[18, p. 81]}. The essence of the approach boils down to the fact that international and domestic law are considered as different, but closely related legal systems, with the only difference being that "moderate dualists" proceed from the principle of parity in the relationship between international and national law and order.

Analyzing these issues, Professor M. Milojevic ^{[15, p. 374]} (Dr. Momir MILOJEVIC) notes that there is a "pluralistic" hierarchy of international law and the internal pragmatism of the state. In the Yugoslav doctrine, Radomir Lukic concluded that international law is "different for each country (although there are parts that are identical for all countries)," that is, each state has its own international law created from those parts of international law that the state accepts.

Thus, the question of which norms of international law and how they are included in national law is resolved in the doctrine mainly through the analysis of both the constitution of a particular State and its legislation on international treaties. Most states of the world recognize the priority of generally recognized principles and norms in national legislation, however, this priority can be "hard" or "soft" depending on the balance and emphasis on the rules for recognizing international norms as binding on the state ^{[4, p. 3-13]}.

The transition from dualism to monism was made by Alfred Ferdros' research on the criminal responsibility of States and lectures at the Hague Academy of International Law. These ideas were developed and brought to a logical conclusion by Hans Kelsen.

In addition, G. Kelsen develops the ideas of V. Kaufman, who published the work "The legal force of international law and the relationship of legislative power and state bodies": in the modern world there are no different legal systems in the form of international, national or supranational law, but there is a single, "universal legal system", of which they are components ^{[13, p. 177]}.

Monism presupposes the existence of a single universal system of law covering legal systems of various levels, in which international law takes precedence over other legal norms, occupying the top of a hierarchical regulatory pyramid, and determines the legal validity of the remaining legal systems ^{[1, p. 7]}. An outstanding German jurist writes about the theory of monism: "International law exists for the state, and not vice versa" ^{[3, p. 270]}.

Monistic understanding establishes a solid logic � the theoretical construction is characterized by rigor and simplicity. Thanks to this, monism gained many supporters among members of various theoretical directions, especially since the understanding of the unity of the rule of law was significantly developed among members of the school of natural law in the XX century. Among the supporters of monism were positivists (the first L. Openheim, G. Lauterpacht, Paul Guggenheim); solidarists (N. Politis, L. Dugi, J. Sel, E. Sauer), American international experts Quincy Wright and Philip Jessop and others.

Foreign researchers believe that the monistic theory is predominant in international law, which implies the unity of the legal order with the priority of international law ^[15].

Doctrinal disputes are endless. Regardless of the position of theorists, reality does not correspond to the practice of States. Dualists are asked how it is possible to simultaneously and equally point out the validity and legitimacy of mutually contradictory norms on the same issue? How can both standards be applied simultaneously? Or how can the same rule be both valid and invalid?

Monists lose sight of the fact that domestic law appears long before international law. However, how can international law impose primacy and "delegate" jurisdiction to domestic law if it did not exist?

The dualistic concept, from the point of view of the Russian doctrine, overcame the destructiveness of the monistic school in terms of recognition of independence and integrity for international and national law, and hence individual, but closely intertwined foundations ^{[5, p. 11]}. A.A. Kashirkina and A.N. Morozov conclude that "the dualistic concept of correlation international and domestic law, supported by the majority of legal scholars, proceeds from respect for international law and the main principle - compliance with international obligations � pacta sunt servanda." Although at the beginning of the XX century . The justification of this imperative principle of international law was accompanied by motivation, including explaining the war: "Pacta sunt servanda, treaties must be respected � this, in essence, is the beginning and end of all international communication. Each State, as its sovereign member, is free to take part or not to take part in the conclusion of a treaty. But the violation of the treaty is a violation of the most basic principles of the international "law of the device", and the more energetic the reaction against it, the more clearly the violator has to make sure that he did not win from this violation, but lost � the higher the level of international law is, the stronger it is in this respect, and it is more valid" ^{[2, p. XIII]}.

The doctrine of international law is changing and transforming, including due to the process of globalization. Speaking about new trends in a globalizing society, I. I. Lukashuk rightly noted that the interaction of international and domestic law of states is of particular importance ^{[6, pp. 115-116]}. At the same time, disagreeing with the supporters of the "modernized" monistic school of today, who are trying to justify the "blurring of the lines" between internal and external law, I. I. Lukashuk said that "there is a certain exaggeration in this... In fact, the domestic legal system does not perceive international law as a special system, but only the content of its norms. As a result, the relevant norms of international law retain their status without undergoing any changes. In accordance with them, the norms of internal law are created. This is the essence of the process of "incorporation", "incorporation" of the norms of international law into domestic law."

Today, modern international law, based on the realities that globalization has brought into our lives, assesses the relationship between international and domestic law in a new way. As Yu. A. Tikhomirov notes, "with the strengthening of integration trends in the world, the process of coordinated development is taking place on a larger scale and intensively. Each national legal system reflects the sovereignty of the State and its different approaches to linking its own interests in the international arena. The general rules of doing business in the world community are developed by recognizing their value and regularity for the participating States. At the same time, generally recognized principles and norms of international law affect national legal systems" ^{[9, p. 306]}.

Scientific disputes, thanks to the proposed alternatives, lead to compromises and prepare the ground for eclectic legal regulation. Theories in legal doctrine are not an end in themselves, their task is to anticipate practical problems and determine possible ways to resolve situations.

Understanding the unity of the rule of law rejects the primacy of both domestic and international law. The international and domestic legal order are a single whole, in which the maintenance of peace and security, the priority of the interests of the people and equal cooperation of States are of primary importance.