Эволюция и прекращение существования обычных норм международного права

Kelsen H. (1967) Principles of International Law. New York: Holt, Rinehart and Winston, 461 p.

Villiger M. (1997) Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources. The Hague: Kluwer Law International, 378 p. Vincy F., Parisi F. (2009) Stability and Change in International Customary Law. Supreme Court Economic Review, no 1, pp. 279-309.

Evolution and Cessation of the Existence of Customary Rules of International Law

Yuri S. Romashev

Professor, Department of General and Interdisciplinary Legal Studies, Faculty of Law, National Research University Higher School of Economics, Doctor of Juridical Sciences.

Abstract

The doctrine of international law pays a lot of attention to the formation norm of customary international law. At the same time, it is quite rare to find studies on their evolution and the end of existence. In this article, therefore, based on a dialectical approach, the use of scientific research methods, and such private-scientific methods as a comparative legal method, as well as methods of legal modelling and legal forecasting, the results of the study of the evolution norm of customary international law, as well as their extinction, are presented. In the case of the established norms of customary international law, their evolution provides for a stage of their qualitative change, development and is conditioned, first of all, by the needs of the development of inter-State relations. Evolution is accompanied by clarification of the elements of such norms. At the same time, the emergence of a new norm is not possible without violations of existing ones, and offenders, deviating from the established norms, with international legal responsibility, at the same time must explain to other States the reasons for such behavior. This practice is mainly related to the dispositive norms of international law. In order for a new norm of customary international law to be formed, it is necessary that the deviation from the previous norm be massive, initially local and, in the future, universal. The criteria for the formation norm of customary international law are applicable to assess the changes that are taking place. The main factors that may influence the evolution norm of customary international law include the emergence of a non-existent rule of amended new rule in the laws of states, the international treaty, and the new international soft law. Codification and the progressive development of international law contributed to the evolution norm of customary international law. It is important to note that, in the absence of the needs of social development, as well as appropriate practice, the norm of customary international law dies. In this case it is possible to create fundamentally new norms of customary international law, and in the future their evolution.

Keywords

international law; international relations; sources of international law; international custom; law of international customs; customary norms of international law; international practice.

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