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International custom as a source of international law


International Relations at All Timeswere formed in completely different ways. In the deepest antiquity, the main "spark" of their appearance was violence, which manifested itself in the most violent wars. Later, the love of constant battles began to be exhausted, because people saw their extremely destructive effect. Of course, military conflicts did not completely disappear, but they were given far less preference than diplomacy and law. As for the last element, it became the main regulator of social relations not only with respect to a particular country, but also between states.

Thus, a specificbranch of international law. Today, it is studied everywhere. This is completely unsurprising, because it has a practical focus. It is thanks to the existence of international law that world covenants, treaties and agreements on the most important issues are concluded. This industry allows for dialogue between states and their supreme authorities. However, there are many interesting features within the international law that are studied by theoretical lawyers. Such ambiguous problems are the essence of the international legal custom as a source of the international industry. It should be noted that scientists differed in opinions about the recognition of this category as a source and its existence in general. Thus, in the article we will try to analyze the international custom and find out whether it can be recognized as the source of the legal branch of the same name.

What is international law?

International custom as a source of internationalrights can be analyzed only within the same industry. It is necessary to understand the scope of regulation of its norms and principles, on the basis of which it is built.

international custom

It should be noted that this industrydiffers from the legal spheres that exist directly in the national legal system of a particular country. Specificity can be traced, first of all, in the circle of those legal relations that the international industry regulates. Given all these features, it can be said 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.

Directions of international law

Scientists identify several "dimensions" in whichan international industry is developing. In this case, it should be pointed out that, in fact, the directions presented below are separate in their own way spheres of legal regulation. They are united only by the international nature of the action. Thus, there are following directions:

  • international private law;
  • international public law;
  • supranational law, that is, the totality of norms governing interstate relations.

international custom as a source of international law

Sources of International Law

International custom in most casesis regarded as the source of the relevant industry. However, not everyone understands what the sources of law in general are. Let us consider this definition in more detail. In theory, the sources of international public law are the existing forms of the emergence of this industry. In other words, they represent a concrete way of implementing legal norms. As a rule, such are specific regulatory acts. It should be noted that today there is still no clear hierarchy between the existing sources of international law. For example, the norms of interstate treaties are very convenient to clarify. However, they can only affect the participating countries, that is, those who accepted them. But still, the classification of all sources known to date into two groups is made: basic and auxiliary. The first category includes:

  • international treaty;
  • international custom;
  • normative acts of transnational organizations;
  • generally recognized legal principles.

As for the auxiliary sources, there are only two of them, namely, legal doctrines and judicial decisions.

international legal practice is

Given the features presented, you canto say that international law has its own specifics, not only in the sphere of regulating relevant legal relations, but also in matters of internal structure. Let us consider this point in more detail. International custom as a source of international law used in this industry more often than innational laws of various countries. This trend was formed due to the fact that the described category has a fairly wide scope of regulatory regulation. At the same time, one must understand that in each state there is formed its own national legal system, which few people want to change. Therefore, in most cases, international relations are regulated through customs, since they are convenient, thanks to their "normative ease". After all, far from all the issues arising between states, there are, for example, agreements or decisions of major international organizations.

The essence of legal custom

To answer the question about what isinternational custom, one important point needs to be understood. Namely, what is the legal tradition in general. In essence, the custom of a legal nature was the historically established rules of conduct. Thus, everyone knew about such common laws, but they were not sanctioned by state bodies. Therefore, the legal custom does not have such legal force as, for example, a law or a contract concluded in accordance with current norms. However, as the role and number of categories presented increased, some of them began to be classified as legal norms. But in this case it is necessary to make a reservation that in case of a conflict between legal custom and, for example, the norms of legislation, priority will be given to the last legal category.

international custom as a source of martyrdom

International custom

As mentioned earlier, the specificthe source of international law is the international legal custom. At its core, it acts as an analogue of the same category in the national legal system. The main difference is seen in the very process of its formation. Thus, the international legal custom is a certain kind of rule that has been applied for a long time in regulating legal relations between states. At the same time, the legal force of this source extends only to those relations that are not defined by the norms of interstate contracts. It follows that the international legal practice is a sphere of self-regulating processes. That is, they are banal human rules, which have been given legal force.

It should be noted that some scientists singled outThe category presented in the article among other sources of interstate law. They believe that custom is the main source of international law. Such a conclusion is extremely erroneous. After all, in most cases, any traditions in the interaction of states appear only after the conclusion of certain agreements. It is the treaties that act in the overwhelming majority of cases as the main way of organizing relations between countries. At the same time, the international custom is only a tradition that appeared due to the shortcomings of the above official documents. It follows that customs are the elements coming from international agreements.

Signs of international custom

Like all legal phenomena, the international legal custom has its own characteristics, which distinguish it from the whole array of similar categories. The main features are the following:

  • exists exclusively in the practice of subjects of the international legal field;
  • the previously mentioned practice is point-based, that is, it occurs in the same type of situations;
  • the rule of conduct must exist in the sphere of international law for a long period of time, that is, be a standard;
  • the rule should be recognized by the world community, recognized as binding for the actors.

There are several legislative acts,which 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 in which the key provisions of the categories we are considering are prescribed. On the basis of existing documents, it is possible to identify certain types of international customs. For example, enshrined in international instruments and present in national legislation.

international custom and usage

Customs in Private International Law

An important role is played by international custom as a source IPP (private international law). Very often in this direction the worldThe legal branch is recognized as the main one. This 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, then in international law such documents are very small. Therefore, the international custom of IPP is a kind of consolidation of established traditions in the process of describing private legal relationships. In some cases, the practices of IPPs are fixed in contracts. One such is the "Agreement on Trade-Related Aspects of Intellectual Property Rights" (TRIPS), which was adopted in the Uruguay Round in 1994.

international custom is

Examples of customs of an international character

To learn more about the rolethis legal category in the life of states, it is necessary to analyze examples of international customs. To date, there are a lot of such people in the world. Examples include the following:

  1. International air law has in itscomposed of normal norms. One of them is the notion of the limit of state borders in the air. According to this custom, the sovereignty of any country begins within 110 km of the surface of the earth.
  2. In the space law is fixed the custom, which allows violating the borders of the airspace of states at the launch of spacecraft.
  3. Some normal norms have an effect only whenthe onset of certain facts and conditions. These, for example, are the "laws and customs of war," which regulate the conduct of military international conflicts.
  4. The norms of economic law also contain sanctioned objects of this category.

Thus, examples of international customs make it possible to more accurately and fully understand the role of this source of the international legal industry.

Formation of international legal customs

Application of international custom possible only after carrying out the processactual education. Before the implementation of the mechanism for its development, it is simply not allowed by anyone. Given the fact that international custom is, in fact, a sanctioned tradition, the order of formation of this source is as follows:

  1. Прежде всего правило поведения согласуется в among the subjects of international law. This means that they must recognize the custom as an obligatory norm, which will subsequently be accepted by everyone without exception.
  2. Вторым этапом становится непосредственное authorization. This means that custom is given real legal force, due to the consent of the world community. Roughly speaking, responsibility is established for its failure.

International custom in this respect maymanifest completely in a variety of ways. This may be a correspondence of states, their active actions or abstention from such, the publication of acts that are legally binding, etc.

It must be remembered that traditional normssignificantly different from legal. This feature is primarily manifested in the fact that the elements of international custom are simply absent, in contrast to the ordinary rule of law. Thus, the use of conventional rules is significantly complicated by this feature.

International customary law

To date, the world has formed a largethe number of international customs that govern one or another relationship. Their use is not only effective, but also convenient. And this is even taking into account the fact that the use of custom is real only after its authorization. After all, it is possible to give legal norms much more quickly than creating a special international regulatory act, such as a contract. But sometimes there are difficulties with the use of traditional rules. For example, quite often international custom and practice, that is, the real state of affairs, differ significantly. In other words, the tradition becomes obsolete. In this case, there are many difficulties in the regulation of certain relations.

But, given the large number represented inarticle sources, they formed a separate legal branch, which is called international customary law. Today, there are a lot of controversies around this category, as scientists do not know exactly what specific norms to include in it. In addition, customary international law began to stand out relatively recently, which makes it a young direction in general.

custom main source of international law

Итак, в статье мы представили понятие international custom. Key features of this source were also reviewed. The issue of international customs is still a pressing issue in the field of practical and legal study. After all, international law as a whole most clearly began its development at the beginning of the 20th century. Therefore, some of its provisions are still imperfect. Thus, a deep theoretical understanding of international law and its individual components will allow to make not only a breakthrough in jurisprudence, but also to modernize interstate relations.

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