International law is a fairly young legal industry. Many of its institutions were formed in the 20th century. However, in ancient and medieval times, some principles of international cooperation in various fields of human activity (political, economic, social, etc.) were already formed. One example of such a relationship between countries can be called dynastic marriages, which were very popular. In fact, these are the first international legal treaties, although this issue is controversial. However, is this not an example of international relations?
Today, the national law of any state is the main regulator of public relations, but it also consists in an inextricable connection with the international branch of law. Hence the main question that will be raised in this article. How exactly do the branches of international and national law of states relate and interact? What institutions of international law contribute to its implementation in the national laws of states? We will try to answer these questions further.
What is international law?
Before you figure out how the relationship between international and domestic law occurs, you need to understand the essence of international law. According to the theory of state and law, the international industry is a set of legal norms that govern the relations of entities in the field of international relations. Also, some scholars argue that this is a complex of not only legal norms, but also normative acts complicated by a foreign element, that is, an international one. This industry is quite specific, since its main subject is the state. In addition, international law has a system that determines its main sources.
International law system
It should be remembered that it is precisely thanks to a specific system that the correlation of international and domestic law occurs. The structure consists of three main and independent elements:
1) Private international law (a set of legal rules governing relations between private individuals).
2) International public law.
3) Supranational law.
In turn, each industry has its own system.
Public international law
WFP is a whole system of international legal norms and acts that regulates legal relations between states, international organizations and states, as well as other subjects of this industry. International public law has special institutions that distinguish the public sector from the private one. The following legal institutions are distinguished:
- international legal responsibility;
- international succession.
Every Institute of Law incorporates the traditions that have been formed in the international industry for centuries. MPP also has its own system, consisting of the following elements:
- International air, humanitarian law.
- International space, maritime law.
- International security law.
- International criminal law.
In addition, with the constant development of legal relations, new industries appear that allow regulating various issues of an international legal nature.
MCHP (private international law)
The most striking is the relationship between the private law and domestic law, because private law since the time of the ancient Romans was a key industry. This is not surprising, since private law regulates the most important public legal relations (family, labor, contractual, inheritance). This industry is directly close to the person. To date, the largest number of contracts are being created in the field of MPP, which directly affect domestic laws. In addition, in international private law acts, customs of business circulation are fixed, which have a rather positive effect on the development of new legal relations. Most clearly, the correlation of international and domestic law is manifested in the “Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)”. The norms of this act are used as basic in matters of intellectual property law in many domestic laws.
The essence of supranational law
The essence of supranational law is a novelty in the theory of international law. This term denotes a specific international legal form in which the state consciously waives part of its rights, and also delegates certain powers to a supranational body. This body, in most cases, issues special acts that are endowed with greater legal force than national ones. Thus, state law fades into the background, and the activities of the powers of the state can be coordinated by supranational legislation. This form of international cooperation is for the most part developed by the European Union. The activity of this subject has shown that the close interaction of domestic and international law not only possible, but also extremely effective.
Theoretical developments in the field of correlation of international and national law
The question of the correlation of domestic and international law is increasingly addressed by theorists, because in practice quite often contentious points arise. Some legal relations are regulated by state law, and at the same time, subjects can choose international legal regulation. In this case, the question arises as to which method of regulation is better, how do they relate. Today it is difficult to single out legal relations that are regulated exclusively by national norms. The correlation between domestic and international is becoming stronger every day, which is a consequence of the interaction of capital and political power, the integration of states into the world community. Scientists at different times created various theoretical aspects, each of which to one degree or another explains how international and domestic law relate.
Incorporation
For a very long time, the question of the relationship between national and international law has not been raised in jurisprudence in general, because this branch, in fact, did not exist. Of course, certain institutions and norms had already been formed, but there was no separate system. Many branches of law (maritime, civil, divine, commercial, etc.) contained norms that governed international relations arising in these sectors of human life. Thus, the theory of incorporation appeared in the 18th century. She explains how interstate national and international law interact. According to the theory of incorporation, international legal norms are included in the regulatory acts of national legislation and have a direct effect.
Transformation theory
In the 19th century, another theoretical understanding of the relationship between international law and national law arises. According to the theory of transformation, the main role is played by acts of international law, and not norms, as in incorporation.
According to this theory, any international agreements containing legal norms should be amended and implemented directly into parliament by national legislation. In other words, international acts are only valid if parliament gives permission. From the theory of transformation, such an institution of law developed as the ratification of international legal acts.
Dualistic theory of correlation
Advocates of the theory of dualism provide a completely different mechanism for correlating the two legal branches. According to them, international and domestic law are not only different industries, but also have completely different law enforcement regimes. From here, two main differences between international and national law can be distinguished:
1) The subjects of the national are individuals (in some cases, legal entities), and international - of the state.
2) The main source of national law is the will of the state, international - the will of all states.
It follows that dualists admit a slight “contact” between the branches of international and national law, but they deny the intersection of these systems.
Monism is the opposite of dualism
The completely opposite doctrine was formed by the German lawyer Kaufmann, who put forward the theory of monism in his work “The Legal Strength of International Law and the Interconnection of the Legislature and Government Agencies”. Subsequently, this theory was adopted and developed. It should be noted that it was more popular than dualism. According to the theory of monism, there is one indestructible legal system in which international law is the pinnacle of a complex hierarchy. At the same time, the state is a strictly legal structure that is entirely based on acts and norms of international law. Thus, the international industry acts as the fundamental principle of any state. Monistic theory had a much greater impact on the formation of legal systems in European countries.
International and Russian law
In Russia today there is a contradiction of constitutional norms that explain the correlation of international and domestic law of Russia.
On the one hand, the principles and norms of international treaties of the Russian Federation are part of the state system. If the terms of the contract and the legislation do not comply, international legal norms are used (Article 15 of the Constitution of the Russian Federation).
On the other hand, the Constitution and Federal laws are the main source of law throughout the country (Article 4 of the Constitution of the Russian Federation). Most likely, Russian law has priority over international law, but the existence of a conflict must be recognized. In all likelihood, inconsistent norms should be clarified without fail by the Constitutional Court.
In conclusion, it should be said that the active processes of state integration into the world community have greatly expanded international law. The Russian Federation actively uses the norms of international agreements in its legislation, although they have a constitutionally fixed priority.