Науковий вісник Ужгородського національного університету. Серія Право (Sep 2024)
Customary international law and OSCE documents: the potential for mutual influence
Abstract
Despite the fact that theoretical concepts about the nature, essence, and significance of customary norms, and their place among the sources of international law, are well studied in academic circles, there are still very few scientific works dedicated to specific issues concerning customary norms. Today, there is growing distrust of customary norms, especially in countries with the Romano-Germanic legal system, and there are even doubts about the practical significance of customary norms as a source of contemporary international law. These doubts arise, in particular, from the fact that subjects of international law, when applying various legal norms in international relations, often forget about the true origin of these norms. For example, in the doctrine of international law, attention is often drawn to the “binding legal force” of non-ratified treaties because they codify customary norms of international law. This fact, at a minimum, indicates that customary norms of international law can underlie the actions of subjects of international law when it may seem to them that they are following norms from “other” sources of international law, bypassing customary norms, although, in reality, their relations are governed by customary norms of international law. Such a connection between customary norms can be established not only with non-ratified international treaties but also with political commitments established within various international organizations. Frequent instances of violations of political commitments established within the OSCE framework increase the interest of scholars, particularly international lawyers, in studying the possible consequences of these violations by OSCE participating states. Specifically, the question arises as to whether the political commitments outlined in OSCE documents are connected to any legal obligations, as it is quite possible that some political commitments originate from customary norms and have a specific customary norm as their root. In other words, these commitments may reflect a more specialized application of a particular customary norm in relation to a specific narrow circle of international relations within the OSCE area. The purpose of this work is, on the one hand, to analyze the customary norms of international law and identify the characteristics of their emergence and development, and on the other hand, to ascertain the essence of documents adopted on behalf of the OSCE as a whole and their influence on the development of customary international law. The results of the research lead to the conclusion that OSCE documents indeed play a significant role in the evolution of customary norms. Through more targeted and intensive research of OSCE documents, and the creation of special mechanisms within the OSCE for this purpose, we believe it will be possible to reveal not only the explicit but also the latent connection between customary norms of international law and the political commitments established in OSCE documents.
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