Correlation of international and domestic law: theoretical aspects

International law is a fairly young legal industry. Many of its institutions were formed in the XX century. However, in the ancient and medieval times, several principles of international cooperation were already formed in various spheres of human activity (political, economic, social, etc.). One example of such a relationship between countries can be called dynastic marriages, which enjoyed great popularity. In fact, these are the first international legal treaties, although this issue is controversial. Nevertheless, is this not an example of international relations?

To date, the national law of any state is the main regulator of social relations, but it also is inextricably linked with the international legal field. Hence the main question arises which will be raised in this article. In what way do the branches of international and national law of states correspond and interact? Which institutions of international law contribute to its implementation in the national legislation of states? We will try to answer these questions further.

What is international law?

Before we understand how the correlation of international and domestic law takes place, One must understand the essence of international law. According to the theory of state and law, the international industry is a set of legal norms that regulate the relations of actors in the sphere of international relations. Also, some scientists 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 branch is quite specific, since its main subject is the state. In addition, international law has a system that determines its main sources.

The system of international law

It should be remembered that it is thanks to a specific system that there is a correlation between international and domestic law. The structure consists of three main and independent elements:

1) International private law (a set of legal rules governing relations between individuals).

2) International public law.

3) Supranational law.

In turn, each industry has its own system.

International law public

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 make it possible to distinguish the public industry from private. The following institutions of law stand out:

- international legal responsibility;

- international succession.

Each institution of law Incorporated the traditions formed in the international industry for centuries. Also MPP has its own system, consisting of the following elements:

- International Air and Humanitarian Law.

- International space law, law of the sea.

- International Security Law.

- International criminal law.

In addition, with the constant development of legal relations, new industries are emerging that allow the regulation of various issues of an international legal nature.

IPP (private international law)

The most striking is the correlation between IPP 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 relationships (family, labor, contractual, hereditary). This industry is directly approximated to man. To date, the largest number of contracts is being created in the sphere of IPP, which directly affects domestic legislation. In addition, in international acts of private law, the customs of business turnover are established, which have a fairly positive impact on the development of new legal relations. Most strikingly, the correlation between 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 the basic in matters of intellectual property law, in many domestic laws.

The essence of supranational law

The essence of supranational law is a novel in the theory of international law. This term denotes a specific international legal form, in which the state deliberately renounces part of its rights, and delegates certain powers to a supranational body. This body, in most cases, issues special acts that are more legally stronger than national ones. Thus, state law is receding into the background, and the activities of the state authorities 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 showed that close interaction of domestic and international law Not only possible, but also extremely effective.

Theoretical developments in the field of correlation between international and national law

The question of the correlation between national and international law is increasingly being affected by theorists, because in practice very often there are quite controversial points. Some legal relations regulate state law, And at the same time, subjects can choose international legal regulation. In this case, the question arises as to which control method is best, how they relate. For today it is difficult to single out legal relations, which are regulated exclusively by national norms. The correlation between national and international is growing 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 some extent explains how international and domestic law is correlated.

Incorporation

For a very long time the question of the correlation of national and international law was not raised in jurisprudence in general, because this industry, in fact, did not exist. Of course, certain institutions and norms were already formed, but there was no separate system. Many branches of law (maritime, civil, divine, commercial, etc.) contained norms that regulated international relations arising in these sectors of human life. Thus, in the 18th century a theory of incorporation appeared. She explains how domestic national and international law interacts. According to the theory of incorporation, international legal norms are included in the normative acts of national legislation and have a direct effect.

Theory of transformation

In the XIX century, another theoretical understanding of the relationship between international law and the national arises. According to the theory of transformation, the main role is played by acts of international law, and not by norms, as in incorporation.

According to this theory, any international agreements containing legal norms should be changed and implemented in national legislation directly by the parliament. In other words, international acts are effective only if the parliament allows this. From the theory of transformation, such an institution of law as the ratification of international legal acts developed.

The dualistic theory of the relation

Absolutely unlike the mechanism of correlation of the two legal branches are the adherents of the theory of dualism. According to them, international and domestic law are not only different industries, but also have completely different modes of law and order. Hence, two main differences between international and national law can be distinguished:

1) 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 allow for a small "touch" in the field of international and national law, but they deny the intersection of these systems.

Monism - the opposite of dualism

A 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 Legislative Power and State Bodies." Subsequently, this theory was adopted and developed. It should be noted that it enjoyed greater popularity 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, which is entirely based on acts and norms of international law. Thus, the international industry acts as the fundamental principle of any state. Monistic theory has had a much greater impact on the formation of legal systems in the states of Europe.

International and Russian law

In Russia today there is a contradiction of constitutional norms, which 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 correspond, the 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 takes precedence over international law, but the existence of a conflict must be recognized. Apparently, the norms that do not conform to each other should be explained without fail by the Constitutional Court.

In conclusion, it should be said that the active processes of state integration into the world community have largely broadened international law. The Russian Federation actively uses the norms of international agreements in its legislation, although they have a constitutionally assigned priority.