Available in Russian
Author: Aleхey Ispolinov
DOI: 10.21128/2226-2059-2023-2-70-91
Keywords: modern international customary law; international courts; national courts; unilateral withdrawal from customary law
Traditionally, international custom is considered one of the most problematic sources of international law. In many ways, this explains the cautious attitude of Russian doctrine and Russian courts towards it, even while combined with a recognition of the importance of international customary law. At the same time, in the second half of the twentieth century serious changes began to occur in customary international law, the accumulation of which by the end of the century made it possible to talk about the emergence of modern customary international law, which is strikingly different and even opposed to classical customary international law. The dynamics of the development of customary international law in the second half of the twentieth century led to the emergence of a very rigid structure which is poorly consistent with the principle of sovereign equality of States and the principle of conscientious compliance by States with their international obligations. New approaches to the identification of customary norms led to the fact that the custom could appear in a short time and become mandatory for all States, with the exception of those which constantly and loudly objected to it at the stage of its formation. At the same time, this process of creating a custom permits reliance only on the practice of an active minority of States, provided there is no significant disagreement on the part of other States. Another fundamental difference of modern customary international law is that it does not provide for reservations and ratification by States, or for unilateral withdrawal of States from it, including by revocation of their opinio juris. A serious concern is the tendency on the part of international and national courts to declare the existence of a particular rule of customary law without any convincing and reasoned justifications in the form of an analysis of the practice of States and their opinio juris. The inability of States to adjust the risks associated with customary law at the multilateral level has led to the fact that States individually have begun to take measures to minimize them, using various methods for this. Thus, the highest national courts have begun to equate customary law with international treaties so that in both the explicit consent of the State is always necessary, thereby calling into question both the binding nature of the custom in relation to all States, even those who objectively could not express their opinion during the formation of the customary norm, and the impossibility of unilateral withdrawal from custom. Unfortunately, clarity regarding customary international law is still lacking in the Russian legal order, leaving open the question of how to resolve conflicts that arise between the customary norms of international law and the provisions of national law, including provisions of the Constitution.
About the author: Aleхey Ispolinov – Doctor of Sciences in Law, Moscow, Russia.
Citation: Ispolinov A. (2023) Riski sovremennogo mezhdunarodnogo obychaya i puti ikh minimizatsii [Risks of modern customary international law and ways of minimizing them]. Mezhdunarodnoe pravosudie, vol. 13, no. 2, pp. 70–90. (In Russian).
References
Baker R.B. (2010) Customary International Law in the 21st Century: Old Challenges and New Debates. European Journal of International Law, vol. 21, no. 1, pp. 173–204.
Bederman D.J. (2010) Acquiescence, Objections and the Death of Customary International Law. Duke Journal of Comparative & International Law, vol. 21, pp. 31–45.
Benvenisti E. (2008) Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts. American Journal of International Law, vol. 102, no. 2, pp. 241–274.
Bradley C.A., Gulati M. (2010) Customary International Law and Withdrawal Rights in an Age of Treaties. Duke Journal of Comparative & International Law, vol. 21, no. 1, pp. 1–30.
Bradley C.A., Gulati M. (2010) Withdrawing from International Custom. Yale Law Journal, vol. 120, no. 2, pp. 202–275.
Chimni B.S. (2018) Customary International Law: A Third World Perspective. American Journal of International Law, vol. 112, no. 1, pp. 1–46.
Entin K. (2021) Rol’ mezdunarodnykh dogovorov i mezdunarodnogo obychnogo prava v pravoporyadke ES i EAES [The role of international agreements and international customary law in the EU and EAEU legal orders]. Mezhdunarodnoe pravosudie, vol. 11, no. 1, pp. 102–130. (In Russian).
Helfer L.R. (2010) Exiting Custom: Analogies to Treaty Withdrawals. Duke Journal of Comparative & International Law, vol. 21, pp. 65–80.
Helfer L.R., Wuerth I.B. (2016) Customary International Law: An Instrument Choice Perspective. Michigan Journal of International Law, vol. 37, no. 4, pp. 563–609.
Joyner D. (2019) Why I Stopped Believing in Customary International Law. Asian Journal of International Law, vol. 9, no. 1, pp. 31–45.
Kelly P. (2000) The Twilight of Customary International Law. Virginia Journal of International Law, vol. 40, no. 2, pp. 449–543.
Lim С.L., Elias О. (2010) Withdrawing from Custom and the Paradox of Consensualism in International Law. Duke Journal of Comparative & International Law, vol. 21, no. 1, pp. 143–156.
Naldi G.J. (2020) Self-Determination in Light of the International Court of Justice’s Opinion in the Chagos Case. Groningen Journal of International Law, vol. 7, no. 2, pp. 216–235.
Petersen N. (2017) The International Court of Justice and the Judicial Politics of Identifying Customary International Law. The European Journal of International Law, vol. 28, no. 2, pp. 357–385.
Roberts A. (2001) Traditional and Modern Approaches to Customary International Law: A Reconciliation. American Journal of International Law, vol. 95, no. 4, pp. 757–791.
Roberts A. (2010) Who Killed Article 38(1)(B)? A Reply to Bradley and Gulati. Duke Journal of Comparative & International Law, vol. 21, no. 1, pp. 173–190.
Romashev Yu. S., Ostroukhov N.V. (2017) Praktika kak osnova formirovaniya mezhdunarodnogo obychaya [Practice as a basis of forming international custom]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no. 2, pp. 186–199. (In Russian).
Romashev Yu.S. (2016) Pravo mezhdunarodnykh obychaev v sisteme mezhdunarodnogo prava [The law of international customs in the international law]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no. 3, pp. 103–112. (In Russian).
Romashev Yu.S. (2018) Priznanie praktiki v kachestve pravovoy normy (opinio juris) pri formirovanii mezhdunarodnogo obychaya [Acceptance of practice as legal norm (opinio juris) in the formation of international custom]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no. 2, pp. 124–148. (In Russian).
Romashev Yu.S. (2022) Mezhdunarodnyy obychay v rossiyskoy pravovoy sisteme [International custom in the Russian legal system]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no. 3, pp. 195–221. (In Russian).
Ryngaert C.M.J., Siccama D.W.H. (2018) Ascertaining Customary International Law: An Inquiry into the Methods Used by Domestic Courts. Netherlands International Law Review, vol. 65, no. 1, pp. 1–25.
Scharf M.P. (2014) Accelerated Formation of Customary International Law. ILSA Journal of International & Comparative Law, vol. 20, no. 2, pp. 305–342.
Siddiq E. (2014) Bangladesh Withdraws from Customary International Law: The Practical Implications of Trifling with Custom. Journal of Politics and Law, vol. 7, no. 4, pp. 163–170.
Stephens P.J. (2004) A Categorical Approach to Human Rights Claims: Jus Cogens as a Limitation on Enforcement? Wisconsin International Law Journal, vol. 22, no. 2, pp. 245–272.
Talmon S. (2015) Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion. European Journal of International Law, vol. 26, no. 2, pp. 417–443.
Tolstykh V.L. (2017) K voprosu o prirode mezhdunarodnogo obychaya [The nature of international custom]. Evraziyskiy yuridicheskiy zhurnal, no. 7, pp. 17–20. (In Russian).
Tunkin G. (1961) Remarks on the Juridical Nature of Customary Norms of International Law. California Law Review, vol. 49, no. 3, pp. 419–430.
Tzanakopoulos A. (2011) Domestic Courts in International Law: The International Judicial Function of National Courts. Loyola of Los Angeles International & Comparative Law Review, vol. 34, no. 1, pp. 133–168.
Verdier P.-H., Versteeg M. (2015) International Law in National Legal Systems: An Empirical Investigation. American Journal of International Law, vol. 109, no. 3, pp. 514–533.
Vylegzhanin A.N., Kalamkaryan R.A. (2012) Znachenie mezhdunarodnogo obychaya v sovremennom mezhdunarodnom prave [The role of international custom in the contemporary international law]. Moskovskiy zhurnal mezhdunarodnogo prava, no. 2, pp. 5–29. (In Russian).