school
Macau Periodical Index (澳門期刊論文索引)
- Author
- Ho, Heng Man
- Title
- International Law and National Law, some new thoughts about Macau Basic Law
- Journal Name
- 法學論叢
- Pub. Info
- 2009年4月, No.10, 第83-118頁
- Abstract
- Abstract : Historically, any study of the traditional theories on the relationship between International and National Law focuses on Monism and Dualism. The doctrine of Monism espouses a doctrine of superiority of either International or National Law in any particular case. The theory of Dualism considers that International law and National Law are two different legal systems. The two systems are mutually exclusive and there is no relationship between them. Obviously, the traditional theories have limitations and shortcomings. In practice, when International law is in conflict with National Law the theory of Monism or Dualism is borderless and is not the best solution. Thus, it does not serve to follow them. New thoughts on the relationship between International law and National Law will be brought forward in this article. One approach is the idea of supporting International law and National Law as two different legal systems and considering International law as a special law to National Law which is regarded as general law. Under the principles of Pacta sunt servanda and Lex specialis derogat legi generali International law would prevail being applied any national legal system in case of conflict. Therefore, states may elect to avoid undertaking International liability in the interest of state sovereignty. This article will espouse some new thoughts on the relationship betwen International and National Law, specifically as it relates to China and its Special administrative region...... Paragraph Headings: 1. International and National Law: traditional theories 1.1. Monism 1.1.1. Superiority of National Law 1.1.2. Superiority of International Law 1.2. Dualism 2. Some new thoughts on the theory of Dualism 3. Relational practices between International and National Law 3.1. International Law in the National Legal order of China 3.2. International Law is the legal order of Macao SAR 3.2.1. International agreements concluded by China 3.2.1.1. Macao SAR applied international treaties which are concluded by China 3.2.1.2. Macao as SAR has never applied international treaties which were conclude by China or will be concluded by China in the future 3.2.2. International agreements to which China is not a party but which are implemented in Macao 3.2.3. International agreements to which China is not a party but concluded by Macao SAR in the Name of ''Macao, China'' 3.2.4. Resolutions of conflict between International Law and Macao SAR Law 3.2.5. Conclusions