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I. KURDADZE, STAGES OF DEVELOPMENT OF SCIENTIFIC CONCEPTS ON CORRELATION BETWEEN ...
correlation of domestic and international law,
but at separating the international and domestic
legal orders, as the legal order is the broader
concept.
In our opinion, the usage of the terminology
related to this issue is relative, as notwithstanding
whether we talk about legal system
or the legal order, the objective boundaries
between the domestic and international law
are defined by the nature of the regulation of
relations and the circle of participants of the
respective relations. S. Chernichenko argues
about the livelihood of the dualist theory in his
monograph as well. It is interesting to observe,
how carefully he introduces in his reasoning
the concept of the “priority of international law”
and develops the idea. He mentions that international
law and domestic law function in
different spaces and therefore identifying the
issue that international law cannot regulate
domestic relations is not grounded, the author
declares that domestic law must correspond
the international law in order to ensure
its implementation. In this sense he considers
primacy of international law as acceptable. 32
The author almost confesses in the consideration
that there is a legal system (international
law) to which domestic law must correspond.
Naturally, the question emerges, if
there is no legal requirement of establishing
such a correspondence, why should a state
voluntarily implement such a legal action The
author sees the answer in the constitutional
norm, though the constitutional norm is a higher
standing norm in domestic law that causes
the question: why is such a norm included in
the constitution
The prominent Russian scholar I.
Lukashuk considers that the direct functioning
of international norms has a relative character,
as the norms commence direct action
only when they are attributed the corresponding
legal force in line with the national law. 33
A state decides itself, which system to
choose, but a state shall create such a legal
system which provides for the implementation
of international obligations. According to him,
when establishing the correlation of international
and domestic law, the main role is attributed
to the constitutional law. Lukashuk
points out the Article 27 of the Vienna Convention
on the Law of Treaties and declares,
that even in cases when international treaty
contradicts constitution, it retains the international
legal force for the state. However within
the state it – the treaty – is almost not applicable.
In the third edition of the work the author
considerably “renews” his concept. He shifts
an attention towards the “correlation” of the
two systems. This time the author closely relates
this phenomenon with the globalization
process – “the tending of the legal regulation
toward globalization seems more and more noticeable
… the deepening of interrelation of
international and domestic laws leads us to
the creation of the global legal system, or the
super system”. 34 But the author underlines that
this does not mean the creation of “the world
state”, “the world law”. The national legal system
in a large part operates as the part of the
global legal system and must correspond to
its principles.
However this does not mean the complete
dominance of international law with regard to
the domestic law. The subjection of the domestic
legal system occurs only when this is
needed for the normal functioning of international
law. 35
Therefore, I. Lukashuk on the one hand
rejects the supremacy (primacy) of the universally
recognized principles and norms of
international law (it is apt to mention that the
author in principle talks about the priority of
international treaties) over the norms of domestic
law without the indication of state will,
however at the same time he is compelled to
very vaguely recognize the necessity of subjecting
the domestic law to international, that
he explains with the advancement of the globalization
processes. Here we again confront
the main issue – what compels the state to
act in accordance with the universally recognized
principles and norms, not only at the
international plane, where the primacy of international
law is universally recognized, but
also within a state as well, in cases when its
laws, including constitution, contradict the
mentioned principles and norms. The essence
of the primacy after all is that the norms of
international law take precedence notwithstanding
whether a state recognizes them or
not, as the general will of states to cooperate
stands higher than the will of one particular
state.
The issue of correlation of international
law and domestic law has never been the subject
of complex study and analysis in the Georgian
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