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I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
none of them can act in isolation from another
and these systems are interrelated and
concurrent. 18
At the same time, almost all of them, in
one way or the other, recognize the primacy
of international law and not only of international
treaties, with regard to domestic law.
D. Carreau points out the court practice
and the customary and conventional norms
of the contemporary internaitonal law begining
from the end of XIX century. In particular, it
considers the Article 27 of the Vienna Convention
on the Law of Treaties and concludes:
“such a principle of primacy of international
law makes it clear that international law (i.e.
the entire positive law and not only treaties)
in sum stand higher than unity of domestic
norms: the constitutional, legislative, executive
and court decisions. This primacy was recognized
by international arbitration and courts“. 19
Carreau, as well as other scientists, refer
to the court practice in order to prove that
universal international law, including treaties,
stands higher than domestic law. As a rule,
they refer to the same historic facts. Considering
the Montigo case in 1875 the arbitration
found that “treaty is higher than constitution“.
Later, considering the George Pinson
case in 1928 arbitration pointed out that a
treaty concluded between France and Mexico
is higher than the Mexian Concsistion: “there
is no doubt that international law stands higher
thatn domestic law“.
The Permanent Chamber of International
Justice pointed out in its decision of 4 February
1932: “Deriving from the universally recognized
principles, one state, in the dispute
with another state, cannot, based on the own
Constitution free itself from the obligations,
which are placed on it by international law or
a specific treaty“.
The same opinion was expressed by the
International Court of Justice in the 1998 Advisory
Opinion with regard to the Representation
of the Palestine Liberation Organization
(in the Headquarter in New York). 20
P-M. Dupuy is more coscious in making conclusions:
“relation of international and domestic
law is inrrelated and concurrent. The way this
relation is implemented significantly depends on
the constitutional choice of a state. This gives us
a possibility to conclude more or less clearly whether
international law is granted higher hierarcical
stand in relation with the domestic law“. 21
Dailler and Pellet categorically declare: “international
justice and legislative practice, as well
as domestic justice more and more often recognize
that internaitonal law would not have existed
without strengtehning its primacy with regard
to domestic law“. 22
The factual material cited by these authors
is interesting:
At the San-Fransisco Conference in June,
1956 the suggestion of the Belgian delegation
to include into the UN Charter the principle of
primacy of international law was rejected. However,
three years later the United Nations International
Law Commission “the Declaration
of the State Rights and Obligations” draft included
a special article, according to which “every
state is obliged to conduct relations with
other states in accordance with the norms of
international law and the principle according to
which all state sovereignty is subjected to the
primacy of international law” (Art. 14).
The Italian Professor L. Bravo considers
that “at the contemporary stage the problem
of monism-dualism has absolutely theoretical
importance”. 23 However, during the consideration
he himself reaches the conclusion that
international law influences state systems at
the current stage. Even more, the author considers
the cases, when state is compelled to
take into consideration norms of international
law. For example, Bravo refers to jus cogens
norms and points out that national law cannot
outweight such a norm, even if it contains a
different norm of conduct.
The former Chairman of the European
Court of Human Rights Lucius Wildhabberr
possesses extremely interesting position. According
to his position, the support to dualistic
or monistic concepts is a subject of more
ideological considerations, political preferences
or it is at all a utopian view. Especially as
this issue is not a subject of comparative study
vis-à-vis the domestic legal order, as both
concepts, at the end, as a rule, focus on domestic
law. It would be more precise to say
that practically all state domestic legal systems
include the elements of both – monistic and
dualistic systems. He cites the so called supporter
states of the dualistic system as an example:
“in some states (United Kingdom, Ireland,
Canada, Australia and Scandinavian
countries) international treaties require implementation
into domestic law through specific
normative acts. Despite this, courts use the
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