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I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
or will of a state. This absolutely does not
mean that international law is unalterable. The
universally recognized norms of international
law used to be created and still are created
based on the agreement of the will of states,
their alteration or annulment is possible also
based on the agreement and not on the basis
of the will of one state. However, the newly
emerged states cannot change the already
existing system, which means that a state complies
with the already settled order that indicates
at the primacy of international law. This
does not mean that separate states do not
violate international legal norms however this
does not certainly justify the nihilist theories
in the field of international law.
Due to this the majority of the authors was
actively promoting the obligatory character of
international law and was proving this through
the examples of the practice. It should be remembered
that there were numerous authors
at that time recognizing the objective existence
of international law and standing of certain
norms above the will of separate states. 8
After the First World War the second direction
of the monist theory starts emerging –
the primacy of international law over the domestic
law.
H. Kelsen categorically denied any relation
of the natural law with the positive law. It considered
law as the closed hierarchy of norms. All
the legal norms within this normative system represent
one unity. All these norms, among them
international legal norms, regulate the relations
between the individuals. If international law binds
and authorizes state, this does not mean that it
does not bind and authorize individuals; this
means that international law binds and grants
authority to individuals who represent state bodies.
This rule of conduct is established by international
law not directly, but through the national
legal order. The latter defines the circle of
persons which implement international law in
domestic bodies. In this respect the international
legal order delegates the implementation
of its norms to domestic law. According to
H. Kelsen in this uniform system of law international
law stands higher than domestic law.
Certainly international law defines the material
content of domestic law. It is the basis of
domestic law (among them are the constitutional
norms). The international legal order
shows its importance only as a part of universal
legal order. 9
In “The Principles of International Law”
Kelsen argues that international law is the
supreme legal order, limitation of which is not
allowed, it limits national legal order itself. Limiting
the functioning of national legal order is
important function of the international legal
order. As per important characteristic of domestic
legal order the author considers the
circumstance that domestic legal order obeys
only international legal order.
The object of all he legal norms of the universal
legal system created by H. Kelsen is the
action of an individual. If the domestic legal norm
directly regulates actis of an individual, international
norm regulates them through the domestic
legal order. It is the domestic legal order which
identifies which officials or the state bodies can
make these norms work. Therefore, in Kelsen’s
view, international law defines the “material
element” of the operation of the international
legal norm, whereas the domestic law defines
the “personal element”. From this viewpoint
the norms of international law do not require
“transformation”, if this is not specifically envisaged
by the international legal norm itself.
The norm is transmitted directly and is based
on the “delegation” of international law with
regard to domestic law. This is not transformation,
but a phase of the procedure of creation
of law, the form of which is uniform. 10
Therefore, Kelsen rejects the dualistic
theory, which, according to his position, derives
from the dogma of sovereignty, according
to which “international law creates rights
and obligations for states only and not for its
organs and citizens». With this Kelsen going
against the dualistic approach, states that international
law together with the domestic law
creates uniform system and represents the
universal system of law.
The Kelsen Theory on the pyramid hierarchy
of legal norms, the unity of international
and domestic legal systems was recognized
as the classical model of the monistic theory
of primacy of international law, however it had
not many supporters.
The monistic theory is shared not only by
positivists, but by solidarists as well, if H. Kelsen
does not go at the end of the hierarchy beyond
the legality of the supreme norm and places the
search for the basis of the “main norm”
(Grundnorm) outside the scope of the construction
of normativism, solidarists “enlist the objective
events” outside the positive law to the basis
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