Practice as a Basis of Forming International Custom

Abstract

The point of view that “practice” is one of the main elements of customary international law is the mostwidespread in the doctrine of international law, activities of states and other subjects of internationallaw. However, there is no consensus on the characterization of customary practices, as well asmandatory requirements to it, giving such practice a special quality. Not any practice in the relationsbetween subjects of international law can become a prototype of the customary rule of international law.The article presents the peculiarities of customary practice and constituting the contest of the practicerelationships between subjects of international law, its types and forms, as well as types of activities of statebodies forming the basis of the practice. The authors detail on the requirements for the customary practicewithout which the custom cannot be formed. The article also clarifies the list of such requirements andproposes to include them: commonality; uniformity and certainty; sustainability (stability) and permanence(continuity); compliance with laws of social development, needs of the development of interstate relations,common interests of states. These requirements, according to the authors, are systemic, interrelated,inseparable and constitute a coherent whole. The progressiveness of practice is proposed to be referredto its important requirements, which are optional. According to the author’s position the duration in timeshouldn’t be attributed to a number of requirements to the customary practice, it is only its characteristic.The author analyses the concept of “instant custom” and the possibility of its application. A customary rule,corresponding to practices in any new area of interstate relations is formed in a short period of time. Thecompletion of the formation of customary practice is characterized by the presence of its certainty, stabilityat a particular stage of development of the society. However, a long-term sustainable practice is the bestproof of the existence of customary practice. The article pays attention to the formation of local customarypractice. It is concluded that the general practice, as a rule, passes the stage of practice of two states ora group of states. In the future, such limited practice can expand because of its positivity and conformitywith the vital interests of States.