الأثر القانوني لسمو القانون الدولي على القانون الداخلي

Abstract

International law differs from domestic law in terms of scope, jurisdiction, and implementation mechanisms. It also has direct binding force on individuals and institutions within the state. Domestic law is characterized by the presence of a constituent authority that drafts the constitutional document, a legislative authority that drafts ordinary laws, and an executive authority that drafts regulations and instructions. The importance of this study lies in the distinction between international and domestic law. We do not find a significant difference in the gradation of its rules despite the absence of those three authorities that are known to exist in domestic law. If they exist, they are at least not in the usual form at the national level. However, there is a problem that has always taken up a large space and a difference between international law scholars and judicial rulings in defining these rules. The Vienna Convention on the Law of Treaties did not address this type of rule and was satisfied with referring to it only. However, we see that the International Court of Justice avoids, in its decisions and advisory opinions, resorting to naming the rules of jus cogens directly, unlike the Vienna Convention on the Law of Treaties of 1969. Perhaps the reason for this is due to two things: the first is caution in disclosing the existence of these rules, and the second is the commitment to neutrality towards these rules. Therefore, we find the court referring to these rules on more than one occasion, but using different terms to refer to the same meaning that the rules of jus cogens refer to.