International custom, as we know, is one of the main sources of international law. At the same time, it is not directly indicated in the Constitution of the Russian Federation. The mention of international custom is quite rare in other Russian regulatory legal acts. As a rule, the general phrase “generally recognized principles and norms of international law” is used. Its association with international customs causes controversy both in the doctrine of international law and among law enforcers. Based on the dialectical approach, as well as the use of general academic research methods, the article assesses the correlation between international customs legally binding on the Russian Federation and the provisions of the Constitution, laws and by-laws of the Russian Federation. The place of international customs in the Russian legal system is specified. It is emphasized that the formed international custom, recognized by the Russian Federation or its predecessors, is an international obligation of our state, regardless of its possible contradiction with certain provisions of Russian legislation. It is indicated that with the help of a law or a subordinate regulatory legal act of the Russian Federation, it is impossible to revoke the recognition of an international custom. It is shown that the Constitution of the Russian Federation is based on imperative universally recognized principles and norms of international law that exist in the form of international custom. Ways out of the situation when there is a contradiction between the international custom previously recognized by our country and the Constitution of the Russian Federation, the use of the rebus sic stantibus clause in some cases are proposed. It is explained the failure of the formulation of the first provision of Part 4 of Article 15 of the Constitution. It is proposed to use an approach in its interpretation, according to which “International customs recognized by the Russian Federation, or containing peremptory norms of general international law, international treaties of the Russian Federation are an integral part of its legal system. In law enforcement practice, it is also proposed to take into account the approach — “If an international custom recognized by the Russian Federation, or containing mandatory norms of general international law, provides for rules other than the law, then the rules of international custom are applied.” It is proposed to take into account in the practice of law enforcement the mechanism of succession in relation to international customs, based on the general principles of law inherent in international law. The significance in the Russian legal system of particular (local) international customs, the norms of which are recognized by the Russian Federation, is shown.
For citation: Romashev Yu. A. (2022) International Custom in the Russian Legal System. Law. Journal of the Higher School of Economics, vol. 15, no. 3, pp. 195–221 (in Russ.). DOI:10.17323/2072-8166.2022.3.195.221.