International relations at all times evolved in completely different ways. In the most ancient times, the main “spark” of their appearance was violence, which manifested itself in severe wars. Later, the love of constant battles began to gradually exhaust itself, because people saw their extremely destructive effect. Of course, military conflicts did not completely disappear, but they began to be given much less preference than diplomacy and law. As for the last element, it has become the main regulator of social relations not only in relation to a particular country, but also between states.
Thus, a specific branch of international law appeared in the world. Today it is studied everywhere. This is not surprising, because it has a practical orientation. It is thanks to the existence of international law that world pacts, treaties and agreements are concluded on the most important issues. This industry allows for dialogue between states and their highest authorities. However, there are many interesting features within international law that are studied by theoretical lawyers. A similar ambiguous issue is the essence of international legal custom as a source of international industry. It should be noted that scientists were divided on the recognition of this category as a source and its existence in general. Thus, in the article we will try to analyze international custom and find out whether it can be recognized as the source of the legal industry of the same name.
What is international law?
International custom as a source of international law can only be analyzed within the industry of the same name. In this case, it is necessary to understand the scope of regulation of its norms and principles on the basis of which it is built.
It should be noted that this industry is different from the legal spheres that exist directly in the national legal system of a country. Specificity can be traced, first of all, in the circle of those legal relations that the international industry regulates. Given all these features, we can say that international law is a set of certain legal norms. They regulate relations arising in the process of interaction between states and transnational organizations. In other words, international law stipulates legal relations in which a foreign element is present.
International Law
Scientists identify several “dimensions” in which the international industry is developing. In this case, it should be pointed out that, in fact, the areas presented below are separate in their kind areas of legal regulation. They are united only by the international nature of the action. Thus, the following areas exist:
- private international law;
- international public law;
- supranational law, that is, the totality of norms that govern interstate relations.
Sources of International Law
In most cases, international custom is seen as the source of the relevant industry. However, not everyone understands what sources of law in general are. Consider this definition in more detail. In theory, the sources of international public law are the existing forms of emergence of this industry. In other words, they represent a specific way to implement legal norms. As a rule, these are specific regulations. It should be noted that to date, a clear hierarchy between existing sources of international law has not yet been developed. For example, the rules of interstate agreements are very convenient to explain. However, they can have an effect only on the participating countries, that is, those that have accepted them. But nevertheless, all currently known sources are classified into two groups: main and auxiliary. The first category includes:
- international treaty;
- international custom;
- regulatory acts of transnational organizations;
- generally recognized legal principles.
As for auxiliary sources, there are only two of them, namely legal doctrines and judicial decisions.
Given the features presented, we can say that international law has its own specifics not only in the field of regulation of relevant legal relations, but also in matters of internal structure. Consider this point in more detail. International custom as a source of international law It is used in this industry more often than in the national laws of certain countries. This tendency was formed due to the fact that the described category has a fairly extensive scope of regulatory regulation. It should be understood that each state has its own national legal system, which few want to change. Therefore, in most cases, international relations are regulated through customs, as they are convenient due to their “normative ease”. After all, by no means on all issues arising between states exist, for example, treaties or decisions of large international organizations.
The essence of legal custom
To answer the question of what international custom is, one important point must be understood. Namely, what is the legal tradition in general. At its core, historically established rules of conduct were called custom of a legal nature. Thus, everyone knew about such generally accepted laws, but they were not authorized by state bodies. Therefore, a legal custom does not have such legal force as, for example, a law or an agreement concluded in accordance with current standards. However, as the role and number of the categories presented increased, some of them began to be added to the legal norms. But in this case it is necessary to make a reservation that in the event of a conflict between the legal custom and, for example, legislative norms, priority will be given to the last legal category.
International custom
As mentioned earlier, a specific source of international law is international legal custom. At its core, it is an analogue of the category of the same name in the national legal system. The main difference is visible in the process of its formation. Thus, international legal custom is a certain kind of rule that has been applied for a long time in the regulation of legal relations between states. Moreover, the legal force of this source applies only to those relations that are not defined by the norms of interstate agreements. It follows that the international legal custom is a sphere of self-regulatory processes. That is, these are commonplace human rules that have given legal force.
It should be noted that some scholars distinguish the category presented in the article from other sources of interstate law. They believe that custom is the main source of international law. This conclusion is extremely erroneous. Indeed, in most cases, any traditions in the process of interaction between states appear only after the conclusion of certain agreements. It is the agreement that acts in the vast majority of cases as the main way to organize relations between countries. Moreover, the international custom is only a tradition that has emerged as a result of shortcomings of the above official documents. It follows that customs are elements emanating from international agreements.
Signs of international custom
Like all legal phenomena, international legal custom has its own characteristics that distinguish it from the entire array of similar categories. The main features are as follows:
- exists exclusively in the practice of subjects of the international branch of law;
- the previously mentioned practice is a point practice, that is, it arises in situations of the same type;
- a rule of conduct must exist in the field of international law for a long period of time, that is, be a standard;
- the rule must be recognized by the international community, recognized as binding upon entities.
There are several legislative acts that regulate the use and existence of international customs. At the world level, such a document is the Vienna Convention of 1969, and at the national level - the Federal Law of the Russian Federation “On International Treaties of the Russian Federation”. There are other acts that spell out the key provisions of the categories we are considering. Based on existing documents, some types of international customs can be distinguished. For example, enshrined in international acts and present in national law.
Customs in Private International Law
An important role is played by international custom as a source of private law (private international law). Very often, in this direction of the global legal industry, it is recognized as the main one. Such a thesis is not without logic. After all, private law is a dispositive industry. In this case, the parties themselves determine their array of powers. If in national legal systems this issue is partly controlled by legislative acts, in international law there are very few such documents. Therefore, the international custom of the MCHP is a kind of consolidation of established traditions in the process of describing private legal relations. In some cases, the customs of the MCHP are enshrined in contracts. One such is the “Agreement on Trade-Related Aspects of Intellectual Property Rights” (TRIPS), which was adopted at the 1994 Uruguay Round.
International Customs Examples
To understand in more detail the question of the role of this legal category in the life of states, it is necessary to analyze examples of international customs. To date, there are a lot of similar people in the world. Examples include the following:
- International air law has in its composition the usual rules. One of them is the concept of the limit of state borders in the air. According to this custom, the sovereignty of any country begins within 110 km from the surface of the earth.
- In space law, a custom has been enshrined that allows you to violate the boundaries of the airspace of states when launching spacecraft.
- Some ordinary rules apply only when certain facts and conditions occur. Such, for example, are the "laws and customs of war", which govern the procedure for conducting international military conflicts.
- Economic law also contains authorized objects in this category.
Thus, examples of international customs allow us to more accurately and fully understand the role of this source of the international legal industry.
The formation of international legal customs
Application of international custom possible only after the process of its actual formation. Before the implementation of the mechanism for its development, it is simply an unauthorized rule. Given the fact that international custom is, in fact, an authorized tradition, the procedure for the formation of this source is as follows:
- First of all, the rule of conduct is consistent among the subjects of international law. This means that they must recognize custom as a universally binding norm, which everyone will subsequently accept without exception.
- The second step is direct authorization. This means that custom is given real legal force, due to the consent of the world community. Roughly speaking, liability is established for its failure to comply.
International custom in this respect can manifest itself in completely different forms. This may be the correspondence of states, their active actions or abstinence from those, the publication of acts that have legal force, etc.
It must be remembered that traditional norms are significantly different from legal ones. This feature, first of all, manifests itself in the fact that the elements of international custom are simply absent, in contrast to the ordinary rule of law. Thus, the use of ordinary norms is significantly complicated by such a feature.
Customary International Law
To date, a large number of international customs have formed in the world that regulate this or that relationship. Their use is not only effective, but also convenient. And this is even taking into account the fact that the application of the custom is real only after its approval. After all, giving a normal norm legal force can be much faster than creating a special international normative act, for example, an agreement. But sometimes difficulties arise when using traditional rules. For example, quite often international custom and custom, that is, the real state of affairs, differ significantly. In other words, tradition is becoming obsolete. In this case, there are many difficulties in the process of regulating certain relations.
But, given the large number of sources presented in the article, they formed a separate legal industry, which is called customary international law. To date, there is a lot of controversy surrounding this category, since scientists do not know exactly what specific norms apply to it. In addition, customary international law began to stand out relatively recently, which makes it a young direction in general.
So, in the article we introduced the concept of international custom. Key features of this source were also considered. The issue of international customs is still an urgent issue in the field of practical and legal study. Indeed, international law as a whole began to develop most vividly at the beginning of the 20th century. Therefore, some of his provisions are still imperfect. Thus, a deep theoretical understanding of international law and its individual components will make it possible not only to make a breakthrough in jurisprudence, but also to modernize interstate relations.