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practice has become more diversified and places greater be effective, it is said that custom must be in accord with
emphasis upon multilateral agreements. thejus cogens 111 and be accepted by the state which is to
(3) In the Soviet view, contemporary international be bound. 112 As in the case of treaties, a departure from
law is basically treaty law. 106 Preference for treaties as the the jus cogens in customary law requires acceptance ". . .
principal formal source of international law reflects the by the states of both systems . . . to be regarded as a
Soviet Union's basic positivist approach and is an impor- universal customary rule of international law." 113
tant element in its bid for Western acceptance of the law of Moreover, the contention is made that the applicability of
peaceful coexistence. 107 The Soviets consider "law by a customary rule is subject to continuing review to deter-
treaty" as an extremely flexible and useful device for mine the extent to which it meets present-day require-
achieving minimum and maximum international legal ments.
goals; defending against a hostile order, in the first in- (3) The Soviet position on consent is based upon
stance, or transforming the international order, in the sec- tacit agreement (i.e., that one state's acceptance or recog-
ond. For the former purposes, a claim of lack of consent nition of an international custom is deemed to constitute a
constitutes a universally accepted, traditional bar to the tacit proposal to other states to regard the custom as a
enforcement of a challenged norm; for the latter, accept- norm of international law). This acceptance by other
ance of the principles of peaceful coexistence in treaty states can be expressed or simply indicated by a course of
form would provide a universally recognized legal basis conduct. Once accepted, the custom becomes a customary
for the new law. Thus, the Soviets claim, the Charter of norm of international law, with the same force, effect, and
the United Nations embodies the principles of coex- weight as a treaty norm. 114 The extreme positivism of the
istence. Soviet position on this point is evidenced in the following:
(4) Soviet treaty practice generally follows that of the Customary international law may be changed or abolished either by
West, principally because the Soviet state had to accept the treaty or by a new customary rule. In either case there is a new agree-
institution as a condition of membership in the interna- ment between states. 115
Customary norms of international law Wig a result of agreement
tional community. Indeed, the law of treaties was ex-
among states, the sphere of action ofrsuch norms is Sited to the rela-
pected to serve as the "bridge between the traditional and tions between the states which accepted these nonns as nonns of inter-
revolutionary systems." 108 Where differences in the national law, i.e., the states participating in this tacit agreement. . . .As
Soviet approach to treaties exist, they appear to be politi- for the newly emerging states, they have the juridical right not to recog-
nize this or that customary norm of international law. . . . The concept
cally oriented and marked by purposeful ideology. 109
that customary norms of international law recognized as such by a large
c. Custom. In Soviet literature on international law,
number of states are biding upon all states not only has no foundation
there is a conscious depreciation of the role of custom as a
in modem international law but is fraught with great danger. 116
source of international law. Soviet writers reject as out- (4) Soviet commentaries reject the position of many
dated the proposition that custom, rather than treaties,
represents true international law. 110 This view is simply Western jurists that the principle of "majority rule" ap-
plies in the formulation of customary norms as a ". . . cry-
reflective of a decided preference for treaties as the prin- ing contradiction to the basic generally recognized princi-
cipal source of international law.
ple of modem international law, the principle of the
(1) The objectionable feature of customary law from
the Soviet point of view is the potential for loss of control equality of states. . . ." 117 In making this argument, the
in the creation of binding norms. For many years after the Soviets depict the socialist states and newly emerging
formation of the Soviet state, custom was rejected as a countries of Asia and Africa as victims of Western at-
source of international law due to the need to protect itself
11'. The concept of jus cogens continues to present problems in in-
against "hostile" customary law. However, the later
ternational law. There is no all-encompassing defhtion which is univer-
recognition that custom can be useful as a source of inter- sally acceptable to the various member states of the international com-
national law, if properly controlled, has resulted in a munity. This problem of defhtion arises from the basic differences ex-
Soviet acceptance of customary law, with qualifications isting among the various state systems of jurisprudence. There can, of
designed to meet specific foreign policy needs. course, be no true consensus of the proper scope or application of jus
cogens absent a working defhtion. For an informative discussion of the
(2) The Soviets have rejected the Western-sup-
various meanings given to jus cogens, see The Concept of Jus Cogens in
ported doctrine that customary norms recognized as such Public International Law: Popers and Proceedings, Geneva, 1967 (Re-
by a considerable number of states are binding upon all as port of a conference organized by the Carnegie Endowment for Inter-
to do so would pose a danger to peaceful coexistence. To national Peace, Lagonissi [Greece], April 1966).
112. Tunkin, Remarks on the Juridic01 Nature of Customary Norms
106. Mezhdunarodnoe Pravo, supra note 85, at 80. of International Law, 49 Calif: L. Rev. 428 (1961).
107. J. Triska and R. SIusser, The Theory, Law and Policy of Soviet 113. E. Mc Whinney, supra note 71, at 63-64, quoting Tunkin. It is
Treaties 9-29 (1962). said that the jus cogens of customary law cannot be rejected by in-
108. Id. at 28. dividual states.
109. Id. at 172. See "The Soviet Law of Treaties," id. 34-172 for a 114. Tunkin, supro note 112, at 422-423.
detailed statement of Soviet treaty law. See also Romundo, supra note 115. G. Tunkin, supra note 86, at 103-104.
92, at 53-60. 116. Tunkin, supra note 112, at 428-429.
110. G. Tunkin, supra note 86, at 104-105. 117. Id. at 427.