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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
international treaties not from the transformation
point, but from the moment of ratification.
Such cases, definitely, does not constitute
dualism”. 24
A. Cassesse on the one hand declares
that “most States do not accord primacy to international
riles in their national legal systems.
Thus, it may be concluded that most members
of the world community tend to play down the
possible role of international legal standarts
in their domestic legal setting. It does not follow,
however, that they normally and systematically
disregard international norms. The
contrary is rather the rule. The failure of States
to accord to international law pride of place at
home only means that they fo not intednd ti
the their hands formally, at the constitutional
or legislative level. In other words, subject to
the few exceptions already referred to, States
ultimately prefer not to enshrine in their constitutions
or in their laws a firm and irrevocable
commitment to unqualified observance of
all international rules”.
On the other hand he recognizes that “we
are faced with a phenomenon of increasing
importqnce: there are more and more international
rules that address themselves directly
to individuals, either by imposing obligations
or by granting rights. These rules intend to,
and to, reach individuals directly, that is, not
through the medium of the municipal law of
States. They ar thus operative as soon as they
emerge, regadless of what is provided for in
any particular national legal systems, and even
contraty to possible national rules”. 25
The transformation, which the Soviet doctrine
of international law experienced 26 , is interesting,
as it rejected both directions of the
monist theory and only partially shared the
dualist approach. The Soviet scientists considered
international and domestic law, as
“separate systems of law” 27 , however at the
same time they distanced themselves from the
dualism traditional doctrine as well due to the
ideological differences. According to them, “the
difference of “realistic dualism” (as they were
referring to their concept) from the traditional
is that the Socialist science studies as international,
as well as domestic laws in the system
of socialist connections and thus goes
beyond the concrete, pure legal aspects of
their interrelation».
According to the soviet scientists, this circumstance
was giving a possibility to explain
the true reasons of these interrelations. A.
Gaverdovsky, who devoted not one work to
the problem, among them the monograph “The
implementation of international norms”, wrote
that when analyzing the correlation of the international
land national laws, the socialist legal
doctrine derives from the principle of the
state sovereignty, and considers international
and domestic laws as two independent and
separate from each other systems, which are
closely interrelated. 28
Soviet scientists were based on the Marxist
concept of the state sovereignty and agreed
with dualists that international law and domestic
law are two independent legal systems. At the
same time they shared the view that despite
the fact that the two systems are isolated from
each other, there still is a close link in between
the systems. 29
V. Butkevich has mentioned that “the dualists
are so much entertained with studying
the characteristics of the relation of international
and domestic laws … that they did not
consider the existence of the correlation of
these legal systems and their elements would
be possible”. 30
However, if there is the correlation in between
the legal systems, it must be regulated
in accordance with the hierarchy of norms.
This issue remained open in the soviet scientific
theory. In other words, the soviet school
did not share the orthodox dualism (Anzilotti), as it
did not reject the interrelation of the international
and domestic laws and therefore recognized
the collision in relation of these systems.
The soviet scientists were drawing the
conclusions as follows: “Any state must fulfill
the international legal norms, international
treaties and obligations in good faith. However,
at the same time only such international
norm has a real force and moral authority
which does not impose the will of other state
over a sovereign state and does not conflict
with the state order and legal system”. 31
After the dissolution of the Soviet Union
and creation of the independent Russian
state, even though the Russian scientists still
“share” the dualist theory, new elements appear
in their concepts. They more and more
frequently appeal to the elements of the concept
of the primacy of international law. When
discussing the problem of interrelation
Chernichenko pays attention at the terminology.
According to him, this refers not to the
26