Has there been a renaissance of customs as a source of law in international law?

As part of the cycle of lectures by new researchers at the Institute of Social Sciences, Anđelija Stevanović, a Researcher Trainee from the Centre for Legal Research, held a lecture on April 10, 2024 in the Great Hall of the Institute of Social Sciences on the topic „Has there been a renaissance of customs as a source of law in international law? The development from the oldest to today’s customs and their significance ”.

Have customs experienced their renaissance in modern international law and how does this affect the further development of international law as well as its fragmentation? The lecture was devoted to the importance and role of custom in contemporary international law. First of all, it was pointed out that, in addition to international treaties, customs are the main sources of international law according to Article 38 of the Statute of the International Court of Justice, as well as in the resolution of cases before the Permanent Court of Arbitration, but also according to the Hague Convention on Certain Questions Relating to the Conflict of Nationality Law. In order for a customary rule to be considered a source of international law, it was emphasized that there must be a practice, that is, the established behavior of states in certain situations, which must be sufficiently long-term and general, that is, the behavior of a large number of states.

A general and long-standing practice must be accompanied by an awareness of the legal obligation of such behavior, in order to distinguish it from simple customs, which represent the rules of courtesy. On the other hand, it was pointed out that there are instant customs that did not arise from long-term practice, but from the first action, such as the customary rules about the cosmos. Therefore, special attention was devoted to the importance and comparison of traditional and modern customs, and their way of origin and identification. During the lecture, the role of customs in contemporary international law was highlighted, and whether there was a strengthening or weakening of customs due to the increasing number of international treaties. It has been established that diplomatic and consular law and international humanitarian law are the two branches of international law that contain the most customary rights. In addition, customs play an important role in the formation of human rights law.

Thus, certain human rights are accepted as absolutely protected and are considered customary rules, such as: the prohibition of torture, the prohibition of slavery, the right to life. Also, customs make up a large part of rules on territories and principles of responsibility of states, while newer customs include rules on air and sea navigation, as well as rules on space.

At the end of the lecture, it was concluded that the importance of customs in modern international law is great and that although some authors believe that customs belong in the past, this is not the case, since customs are experiencing their renaissance in international law, because with their elasticity they can ensure the regulation of certain branches of international law.

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30. 11. 2022.

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