International custom as a source of international law


2018-03-31 20:54:17




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International relations at all times was completely different. In deepest antiquity the main “spark” for their appearance was the violence that was manifested in brutal wars. Later, the love of constant battle became gradually exhaust itself, because people saw them very destructive effect. Of course, military conflicts have not disappeared completely, however, they began to give much less preference than diplomacy and law. As for the last item, it has become the main regulator of social relations, not only in respect of a particular country, but also between States.

So the world has a specific branch of international law. Today it is studied everywhere. This is not surprising, because it has a practical orientation. Precisely because of the existence of international law lies the world pacts, treaties and agreements on the most important issues. This industry allows to conduct dialogues between States and their higher authorities. However, there are many interesting features inside international law, which are studied by legal theorists. Such controversial problems is the nature of international legal custom as a source of international industry. It should be noted that scientists are divided in opinion over the recognition of this category and the source of its existence at all. Thus, the article will attempt to analyze international custom and find out whether it is possible to recognize the source of the eponymous legal industry.


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What is international law?

International custom as source of international law can be analysed only within the eponymous industry. It is necessary to understand the regulation of its rules and principles on which it is based.

international custom

It Should be noted the fact that this industry is distinct from the legal spheres which exist directly in the domestic legal system of a particular country. The specificity can be traced, primarily, in the circle of those relations, which regulates the international industry. Given these characteristics, it can be said that international law – set of specific legal norms. They regulate relations arising in the process of interaction of States and transnational organizations. In other words, international law stipulates legal relations which contain foreign element.

International law

Scientists identify several “dimensions”, which develops the international industry. In this case, it should be pointed out that, in fact, presented below are the individual directions of a kind spheres of legal regulation. What unites them is their international nature of the action. Thus, there are the following fields:

  • Private international law;
  • Public international law
  • Supranational law, i.e. the system of norms which regulate inter-state relations.

international custom as source of international law

Sources of international law

International custom in most cases is treated as source of the relevant industry. However, not everyone understands what sources of law in General. Consider this definition in more detail. In theory, sources of public international law referred to as existing forms of appearance of this industry. In other words, they represent a specific way of implementing legal norms. Usually those are specific regulations. It should be noted that to date still has not developed a clear hierarchy between the existing sources of international law. For example, norms of international treaties is very convenient to explain. However, they can have an effect only on the countries-participants, that is, adopted them. But all the classification of all currently known sources into two groups: primary and secondary. The first category includes:

  • International agreement;
  • International custom;
  • Regulations of transnational organizations;
  • Universally recognized legal principles.

As for secondary sources, only two of them, namely, legal doctrine and judicial decisions.

international legal custom

Considering the presented features, it is possible to say that international law is specific not only in regulating the relevant relationships, but also in matters of internal structure. Consider this point in more detail. International custom as a source of international law Is used in this industry more often than in the national legislation of certain countries. This trend was formed due to the fact that this category has a fairly extensive regulatory framework. It should be understood that in each state formed its own national legal system that few people want to change. Therefore, in most cases international relations are governed by customs, as they are handy, thanks to its “regulatory ease”. Because not all arise between States issuesthere are, for example, the Treaty or the decisions of a large international organization.

The Essence of a legal custom

To answer the question of what international custom, you need to understand one important point. Namely, what is the legal tradition at all. In essence, customary legal character was called historically developed rules of behaviour. Thus, such conventional patterns knew everything, but they were not sanctioned by the state authorities. Therefore, legal custom does not have such legal force as, for example, the law or the agreement concluded in accordance with the relevant regulations. However, increasing the role and number of categories some of them were counted to the legal regulations. But in this case it is necessary to mention that in the event of a conflict between the legal tradition and, for example, by law priority will be given to the latter legal category.

international custom as a source of MCHP

International custom

As previously stated, the specific source of international law is an international legal custom. In essence, it acts as an analog of the same category in the domestic legal system. The main difference can be seen in the process of its formation. Thus, the international legal practice – this is some kind of rule that long time is used in the regulation of relations of a legal nature between States. Thus the legal validity of this source applies only to those relations that are not defined by the norms of international treaties. It follows that international legal practice – it is the sphere of self-regulatory processes. That is a banal human rules, which gave legal force.

It Should be noted that some scholars presented in the paper category among the other sources of international law. They believe that the custom – primary source of international law. Such a conclusion is very erroneous. Indeed, in most cases, any traditions in the process of interaction of the States appear only after the conclusion of specific agreements. It contract are in the overwhelming majority of cases the main way of organizing the relations between the two countries. International custom is a tradition that emerged as a result of the shortcomings of the above official documents. It follows that the customs – is coming from the international agreements to the elements.

Signs of an international custom

As all the legal phenomenon, international legal practice has its own characteristics that distinguish it from the entire array of similar categories. The main features are:

  • Exists solely in the practice of subjects of international law;
  • The previously mentioned practice is the point, that is, occurs in similar situations;
  • The rule of conduct should exist in international law over long period of time, that is to be the standard;
  • The rule must be recognized by the international community to admit binding entities.

There are several legislative acts, which regulated the use and existence of international customs. At the global level such document is the Vienna Convention of 1969, and national – the Federal law of the Russian Federation “On international treaties of the Russian Federation”. There are other acts, which stipulate the key provisions of the considered categories. On the basis of existing documents it is possible to allocate some types of international customs. For example, enshrined in international instruments and present in the national legislation.

international custom and habit

Customs in private international law

The Greater role of international custom as a source of international private law (international private law). Very often in this direction the global legal industry, he is recognized as a major. A similar argument devoid of logic. Because private law is dispositive of the industry. The parties themselves determine their array of powers. If in national legal systems this issue is partially controlled by the legislative acts, the international law such documents are very few. Therefore, an international custom MCHP is a consolidation of established traditions in the process descriptions of private relations. In some cases the customs of the law are fixed in the contracts. One of these is the “Agreement on trade-related aspects of intellectual property rights” (trips), which was adopted during the Uruguay round in 1994.

international custom is

Usages of an international character

In Order to understand in detail the question of the role of this legal category in life, you need to analyze examples of international practices. Today, like the world very much. Examples include the following:

  1. International air law incorporates customary norms. One of them is the concept of limit state borders in the air. According to this tradition, the sovereignty of any country starts within 110 km from the surface of the earth.
  2. Space law, enshrined in custom, which allows you to break the boundaries of the air spaces of States at the launch of the spacecraft.
  3. Some customary rules have the effect only upon the occurrence of certain facts and conditions. Such, for example, are “the laws and customs of war”, which reglamentary the procedure of international military conflicts.
  4. The rules of economic rights also include the authorized objects of this category.

Thus, examples of international practices allow us to more accurately and fully understand the role of this source of international legal industry.

Formation of international legal customs

International usage Is possible only after the process of actual education. To implement the mechanism of its development, he simply is unauthorized by the rule. Given the fact that international custom – it is, in fact, sanctioned by tradition, the order of formation of the source of the following:

  1. First rule of conduct is consistent among the subjects of international law. This means that they should recognize the custom as obligatory norm, which subsequently will accept all without exception.
  2. The Second step is the immediate validation. This means that the tradition is given real legal effect, due to the consent of the world community. Roughly speaking, it establishes liability for its default.

International custom in this respect can manifest itself in completely different forms. This can be a correspondence of the States of their action, or abstinence from those of the edition of acts which are legally binding, etc.

It Must be remembered that traditional norms are significantly different from the legal. This feature, above all, is manifested in the fact that the elements of international custom are simply not available, in contrast to the ordinary rules of law. Thus, the use of customary norms becomes much more complicated such a feature.

Customary International law

Today, the world has formed a large number of international customs, which regulate certain relations. Their use is not only effective but also convenient. And that's even taking into account the fact that the customary usage is really only after his authorization. After all, to give the normal legal force can be much faster than creating a special international normative act, such as contract. But sometimes there are difficulties with the use of traditional rules. For example, often international custom and wont, 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 process of regulation of certain relations.

But, given the large number presented in the paper sources, they formed a separate legal branch, which is called customary international law. To date, around this category there is a lot of controversy because scientists do not know exactly what specific rules there. In addition, customary international law started to emerge relatively recently, making it a pioneer area as a whole.

custom primary source of international law

So, in the article we presented the notion of international custom. It was also considered the key features of this source. The problems of international customary law is still a topical issue in the field of practical and legal study. After all, most clearly in international law as a whole began its development in the early twentieth century. Therefore, some of its provisions are still imperfect. Therefore, a deep theoretical understanding of international law and its individual components will make a breakthrough not only in law, but also to upgrade the inter-state relations.

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Alin Trodden - author of the article, editor
"Hi, I'm Alin Trodden. I write texts, read books, and look for impressions. And I'm not bad at telling you about it. I am always happy to participate in interesting projects."

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