International custom as a source of international public law

Lamanova Kseniia
Introduction
International legal custom is the original form of international law and for
a long time remained in fact the main source of international law.
However, for a long time international custom was not recognized as an
independent source of international law. Only the theorists of the so-called
"historical school of law", which existed in the XIX century, convincingly
proved the importance and significance of legal custom as a source of
international law.

In the same school the characteristic features of the international customary

law were allocated:

- legal norms of international customary law, or international legal

customs, are created without a direct order from states or their bodies;

- customary international law is an unwritten law. It is clear that the

norms of customary international law can be written down, but the fact of
recording, ie its material fixation, is not essential for this right, because it is
valid not because it is written down, but because it is recognized as a right
in the mass consciousness and widely used.
Customary international law is an unwritten set of rules of
conduct that have developed in history and are followed with
informal consent.
In international legal science and practice, the question of the
list of sources of international law remains debatable. A study
of international legal custom, including its problems
relations with an international treaty at different times engaged
72
as domestic international lawyers (M. Baimuratov, B.
Butkevych,
G. Danilenko, I. Lukashuk, G. Naiko, C. Palchyk, G. Tunkin,
M. Cherkes,
Yu. Schukin) and foreign scientists (E. H. de Arechaga, P.
Daye, P. Malanchuk, A. Pele, H. Tirleway, O. Shakhter, IA
Shearer and others).
As you know, international legal custom - is formed in
In practice, there is an unwritten rule of conduct under which
subjects of international law recognize legally binding force. In
the formation
There are two elements of custom: objective - coinciding
practice of states and subjective - recognition by subjects of
international law according to the rule formed as a result of such
practice,
legally binding force (opinio juris sive necessitatis). Custom
differs from other sources of international law (international
treaty, legally binding decision of an international organization)
in the way of creation and form of existence of norms. There
are many difficulties with the peculiarities of the creation and
existence of a custom
in its proof and application.
Most theorists and practitioners of international law (regardless of school or
field) understand the formal sources of international law as the actual material
currently available, from which the international specialist determines the
legally binding
rules that can be applied to a specific situation. Such material is divided into
five main categories or forms, which are enshrined in Art. 38 of the Charter of
the International Court of Justice, which states that
"A court which is obliged to settle disputes referred to it on the basis of
international law shall apply: a) international conventions -
both general and special, setting rules, for sure
recognized by the parties to the dispute; b) international customs as
proof of general practice recognized as a legal norm; c) general
principles of law recognized by civilized nations; d) with the proviso referred to
in Article 59, judgments and doctrines at most
qualified specialists in public law of different nations as an aid to determine
legal norms.
" However, formulated in Art. 38 of the Charter of the International Court
of Justice, the list of sources of the MP no longer satisfies neither scientists
nor lawyers, in particular, draws
attention: "The text of Art. 38 does not determine whether there was a
hierarchy of application
between custom and contract; proposed rate that specifically
points to the Court's obligation to use sources in the manner
in which they are mentioned in the article, whether it was rejected at the
development stage
text ». Recently, in international legal practice, often
73
there are questions about other sources: about "soft" law, resolutions
international organizations and conferences, political agreements,
decisions of international judicial institutions and some other acts. This is
natural, as international law is evolving dynamically.
The norms of international custom have the same legal
force with the norms of the international agreement. Therefore, between the
contract and
the principles of “the following law prevails
before the previous "," special law takes precedence over
general ".
For a long time it was an international legal custom
was the main source of international law. Since the twentieth century.
greater role
began to play international treaties, but even now he has enough
great value.
Regardless of the development of sources of international law, the
importance of international legal custom is not decreasing, but
growing
subject area of ​international law only increases the importance
international legal custom.
In the case of a legal agreement, international law
the custom governing the same relationship often does not lose its
significance: it can remain valid for those entities that, recognizing
the legal custom, have not joined the contract for some reason.
The custom may be wider in scope than the contractual norm,
therefore, it may act in conjunction with an international agreement,
termination
an international treaty does not automatically terminate the custom.
Regarding the question of the place and role of international legal custom in
international law in the literature, there are the following points
view. First of all, it is generally accepted that international law is based on customs.
Some scholars considered customs to be the result of lawmaking. According to another
point of view, international custom is not
is a typical source of international law today. With two
the latter positions can not be agreed, as although the custom has undergone significant
changes, in particular - there are new mechanisms for its
creation, forms of expression, but it remains a typical source
international law.
The definition of international legal custom is given in Art.
38 of the Statute of the International Court of Justice and indicates that the custom is
formed in the practice of international communication. To confirm the existence of
international custom, usually indicate three
main factors: a) international practice (precedents); b) opinion
74
juris sive necessatis - opinion that recognizes this practice (precedents)
for the legal norm; c) time factor (duration of application). For
that each of these factors could be a confirmation
presence of international customs, he must meet certain
requirements.
Unlike a treaty, which can be a source of both general and
detailed legal requirements, custom by its nature can only
lead to the creation, as defined by the International Court of
Justice, of “basic legal principles that create
guidelines ". Accordingly, custom cannot be a source of
legal regulation of those areas of international relations that
require detailed and clear regulation.
Thus, the International Court of Justice defines custom as
evidence of common practice that is recognized as a rule of
law. Custom
norm is an unwritten rule of conduct that has developed in
the result of long practice and which is determined by law
power. Regardless of the development of sources of
international law, the role
international legal custom remains important.
The above allows us to conclude that one of the
problems of application of international legal custom to
international legal relations is the difficulty of
establishing its content and proving its binding nature to
a particular state (opinio juris sive
necessatis). Analysis of the legal literature allows us to
conclude that such evidence may be the decisions of
courts, conventions
various issues, resolutions and declarations of
international organizations.
Numerous cases are known in the international practice
of states,
when the same rules of conduct for the same states exist
in
contractual form, and for others in the form of
international customs.
Thus, some features of international custom, such as: the ability to
fill gaps in treaty law, to bind most states of the international
community, the ability to change as society needs and practices,
allows us to conclude that international custom can never be
completely replaced by an international treaty. The great importance
of international custom is that the main form of existence of the basic
principles of modern international law is custom. Obviously, it
would be inappropriate to raise the question of the absolute primacy
of an international treaty or international custom. After all, both an
international treaty and an international custom are only different
forms of one essence, an agreement of subjects of international law.
An international treaty and international custom are endowed with a
single legal force, they have a common legal nature and a single
function. They do not contradict each other, but are in interaction.
Thanks for attention!