International custom as a source of international law

International relations at all times were absolutely different. 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 specific branch of international law appeared in the world. 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 dialogues between states and their supreme authorities. However, there are many interesting features within the international law that are studied by legal theorists. Such ambiguous problems are the essence of the international legal custom as a source of the 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 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 international law 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.

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, it can be said that international law is a collection 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 which the 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.

Sources of International Law

International custom is for the most part considered 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. However, all the sources known to date are classified into two groups: basic and auxiliary. The first category includes:

• International treaty;
• International custom;
• Normative acts of transnational organizations;
• Generally accepted legal principles.

As for the 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 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 Is used in this industry more often than in national 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 of what an international custom is, one important point needs to be understood. Namely, what is the legal tradition in general. At its core, 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 should be noted that in the event 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 already indicated, a specific source of international law is the international legal custom. In its essence, it acts as an analogue of the same name 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 scholars identify the 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. In this case, the international custom is only a tradition, which appeared due to the shortcomings of the above official documents. From this it follows that customs are elements emanating 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-like, that is, it arises in similar situations;
• The rule of behavior 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 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 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.

Customs in Private International Law

An important role is played by international custom as a source of IPP (private international law). Very often in this direction of the world legal branch it 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 practice of IPPs is 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.

Examples of customs of an international character

In order to understand more thoroughly 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 many such people in the world. Examples include the following:

1. International air law has in its composition the usual norms. 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.
2. In space law, a custom is fixed that allows breaking the borders of the airspace of states when launching spacecraft.
3. Some ordinary rules have an effect only when certain facts and conditions come. 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 Is possible only after carrying out the process of its actual formation. Prior to the implementation of the mechanism for its development, it simply is not an authorized rule. Considering the fact that international custom is, in fact, an authorized tradition, the order of formation of this source is the following:

1. First of all, the rule of conduct is consistent among the subjects of international law. This means that they must recognize the custom as a universally binding norm, which will be accepted by all without exception.
2. The second step is immediate authorization. This means that the custom is given real legal force, due to the consent of the world community. Roughly speaking, the responsibility for its non-fulfillment is established.

International custom in this respect can manifest itself in completely different forms. This can be the correspondence of states, their active actions or abstention from such, the publication of acts that have legal force, etc.

It must be remembered that traditional norms differ significantly from legal ones. Such a feature, first of all, is manifested in the fact that the elements of the international custom are simply absent, in contrast to the ordinary rule of law. Thus, the use of ordinary norms is substantially complicated by this feature.

International Customary Law

To date, a large number of international customs have been formed in the world, which regulate these or those relations. 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 authorization. After all, it is possible to give legal force much more quickly than to create a special international normative act, for example, a treaty. But sometimes there are difficulties with the use of traditional rules. For example, quite often international custom and usage, that is, the real state of affairs, are significantly different. In other words, the tradition becomes obsolete. In this case, many difficulties arise in the process of regulating certain relations.

But, given the large number of sources presented in the article, they have formed a separate legal branch, called international customary law. For today around this category there is a lot of disputes, as scientists precisely do not know, what concrete norms to it to carry. In addition, international customary law began to stand out relatively recently, which makes it a young direction in general.

So, in the article we introduced the notion of international custom. Also, key features of this source were considered. The problem of international customs is still a topical issue in the field of practical and legal study. After all, most clearly international law as a whole 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 us to make not only a breakthrough in jurisprudence, but also to modernize interstate relations.