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Is there a saying that international law is superior to domestic law in legal effect?
The relationship between international law and domestic law is a theoretical issue that is discussed more in the field of international law. Theoretically, the relationship between international law and domestic law mainly involves two issues: First, are international law and domestic law one legal system or two different legal systems? Second, is international law superior to domestic law or domestic law superior to international law, or are international law and domestic law independent of each other, and no one is superior to the other? Different answers to these two questions have formed different theories in theory. I. Monism Scholars who hold monism believe that there is only one legal system in essence, and international law and domestic law are essentially the same. International law and domestic law are two aspects of a general legal system, and they belong to two interrelated parts of a legal structure. Because different scholars have different views on the priority application of international law and domestic law, there are two different views on this theory. 1. German scholars advocate the monism that domestic law takes precedence. Jelinek, Kaufman and Unzer are the main representatives. The theory holds that although international law and domestic law belong to the same legal system, the effectiveness of domestic law is higher than that of international law. International law can have legal effect only by relying on domestic law. Therefore, international law is a part of domestic law, and the theory called "foreign public law" [1] was advocated by some German jurists at the end of19th century. However, due to some limitations of this theory, not many international law scholars advocate this theory. According to this theory, because the effectiveness of international law comes from domestic law, every country can exclude the application of domestic law and cancel the effectiveness of international law through its international law, so that non-compliance with international law will become a common phenomenon in the whole international community. 2. The representatives of the monism of priority in international law mainly include scholars such as kelsen and Cüneyt. This is another theory that rose in the field of international law after the First World War. This theory also notes that international law and domestic law belong to the same legal system, but it is different from the theory that domestic law takes precedence. It holds that international law is more efficient than domestic law in terms of legal effect, and the effectiveness of domestic law comes from international law. Austrian scholar kelsen, the initiator of this theory, once pointed out: "The conflict between an established international law norm and a domestic law norm is the conflict between superior and subordinate rules." [2] Scholars who hold the priority theory of international law believe that the unified legal norm system composed of international law and domestic law is a pyramid norm system. Among them, international law is at the top of the pyramid and has the highest legal effect, while the legal effect of domestic law is under international law. This theory has two main defects. First, this theory requires that "treaties must be observed" under any conditions, and denies the role of domestic laws in the country, thus denying the sovereignty of the country to formulate domestic laws, which obviously violates the principle of national sovereignty, one of the basic principles of international law. Second, they believe that the subject of international law, no matter what its form, is essentially the relationship between individuals, thus fundamentally denying that international law is the law between countries and the difference between international law and domestic law. Second, dualism and monism are qualitatively different. The main advocates of dualism are Triepel and Ancelotti, scholars of modern positivism. Scholars who advocate dualism believe that international law and domestic law are two different legal systems. First, they come from different backgrounds. The source of international law is mainly international treaties and international practices, while the main source of domestic law is domestic law. Second, their adjustment objects are different. International law mainly regulates the relations between countries, while domestic law mainly regulates the relations between individuals. Third, the coercive force is different. International law mainly depends on the conscious compliance of countries, while domestic law is guaranteed by state organs. Therefore, the coercive force of international law is lower than that of domestic law. Fourth, the basis of effectiveness is different. The effectiveness of international law is based on agreements between countries, while the effectiveness of domestic law comes from state power organs. Therefore, advocates of dualism believe that international law and domestic law are two completely independent legal systems, and they are applied in different places. Domestic law regulates the relations between individuals belonging to a country, while international law regulates the relations between equal countries. Therefore, international law is equivalent law and domestic law is subordinate law. [3] Compared with monism, dualism is supported by more international jurists. However, although there are many differences between international law and domestic law, they are the same in the nature of legal norms and mutual cooperation in the implementation process. So dualism is also flawed. It overemphasizes the difference between international law and domestic law and ignores the relationship between them, and even completely opposes them, which is obviously not conducive to the development of international law. Third, the views of most domestic scholars At present, China scholars mainly hold a compromise view on the relationship between international law and domestic law. Most people neither agree with monism nor dualism, but advocate proceeding from reality and looking at the relationship between them objectively. On the one hand, we agree with the differences between international law and domestic law in terms of adjustment objects, legal sources and formulation subjects. On the other hand, international law and domestic law are not completely opposite, but unified, that is, grasping unity in opposition. The unification of international law and domestic law is mainly reflected in: 1, the state is the maker of domestic law, and at the same time it is the participant in making international law. Domestic law is the embodiment of the national will, and international law also reflects the national will to some extent. The two are not contradictory. 2. The two are mutually transformed. On the one hand, some principles and rules recognized by international law can become international treaties and international practices because of the recognition of sovereign States; On the other hand, the principles, rules and systems of international law need formal legislative procedures of the country to become domestic laws. 3. The two cooperate with each other. With the close international communication, the implementation of some domestic laws requires the cooperation of all countries, and international laws generally stipulate the measures that all countries take to cooperate with domestic laws. At the same time, the principles and rules in international law can only be implemented in various countries by accepting domestic laws. It can be seen that there is a close relationship between international law and domestic law, and they are not absolutely opposite. When dealing with the relationship between international law and domestic law, China scholars advocate that we should not only see the difference between them, but also see the relationship between them in monism, and oppose dualism, that is, we should absolutely oppose international law and domestic law. To have a dialectical understanding of national sovereignty, we should not only uphold the sanctity of national sovereignty, but also oppose the supremacy of international law over domestic law and interference in a country's internal affairs by means of international law. We should also uphold the relativity of national sovereignty and oppose any country's violation of relevant provisions of international law within the scope of commitment on the grounds of national sovereignty, leaving international law in a state of chaos.