1. What is Custom and International Customary Law?
1.1. Custom
Custom refers to social norms that coexist with other social rules, such as laws, ethics, and religious beliefs, to regulate human behavior in social interactions. As a social norm, custom plays a crucial role in governing social relationships, particularly in civil relations.
According to Article 5(1) of Vietnam’s 2015 Civil Code, custom is defined as a clear rule of conduct that determines the rights and obligations of individuals and organizations in specific civil relations. It develops through repeated application over an extended period, gaining recognition and widespread use within a region, ethnic group, community, or specific civil field.
From a linguistic perspective, custom is a habit or practice that has been established over time and is followed by society. Legally, it is considered a routine behavior accepted by a community as a common rule. Custom interacts with the legal system in two significant ways: influencing the formation of laws and affecting the enforcement of legal provisions.
Customs can exist in various forms, such as regional, ethnic, or social customs, and may apply within a nation or internationally. In Vietnam, state authorities may apply local customs to resolve disputes if civil laws do not provide direct legal provisions.
1.2. International Customary Law
Definition of International Customary Law
International customary law consists of unwritten rules of conduct formed through consistent international practice and recognized as legally binding by states. These rules regulate interactions among nations and can emerge from historical state practices, unilateral state actions, or commonly accepted civilized norms.
International customs apply across various global fields, including politics, military affairs, diplomacy, economics, and trade. However, they are only considered a source of Private International Law when domestic legislation acknowledges their applicability or when nations include them in international treaties.
The formation and recognition of international customary law rely on two key elements:
- Material Element: This refers to the existence of a consistent international practice. Traditionally, this means a uniform repetition of actions and legal behaviors in international affairs. Modern interpretations also include rules derived from treaty practices, dispute resolution mechanisms, resolutions from international organizations, and unilateral state actions.
- Psychological Element: This represents the acceptance of a particular rule as legally binding by the subjects of international law.
Since international customary law evolves over time, its formation process is lengthy, often spanning 50 to 100 years or even longer. It can develop through the following methods:
- From non-binding resolutions of international organizations that gradually gain recognition.
- From international judicial decisions that establish legal precedents.
- From provisions in international treaties that become widely accepted.
- From a single historical precedent that is later followed by multiple states.
Legal Value of International Customary Law
International customary law exists independently from treaties and other sources of international law. It plays an essential role in:
- Establishing and developing international legal norms.
- Effectively regulating legal relationships between international legal subjects.
Application of International Customary Law in Vietnam
Vietnamese law allows the application of international customary law under specific conditions. It primarily applies when agreed upon by parties involved in civil relations with foreign elements. In such cases, it carries legal significance in defining the rights and obligations of the parties involved. However, its application remains subject to the approval of judicial authorities.
The 2015 Civil Code of Vietnam recognizes the role of international customs in private legal matters:
- Article 664: Determines the applicable law for civil relations involving foreign elements based on international treaties or Vietnamese law. If parties have the right to choose applicable laws, they may select international customs, provided they do not contradict Vietnam’s fundamental legal principles.
- Article 666: Allows parties to adopt international customs in specific cases. However, if the application of such customs contradicts Vietnam’s core legal principles, Vietnamese law will take precedence.
Vietnamese law also restricts the application of international customary law in the absence of an agreement between the involved parties. Under Article 5(2) of the Civil Code, if there is no prior agreement and no applicable legal provision, customary law may apply as long as it does not conflict with Vietnam’s fundamental legal principles.
Additionally, Vietnam’s Commercial Arbitration Law (2010) addresses the use of international customs in dispute resolution. Article 14(3) allows arbitrators to apply international customs when national or selected foreign laws do not provide specific solutions. However, such customs must align with Vietnam’s fundamental legal principles.
2. Conditions for Applying International Customary Law in Vietnam
To apply international customs in Vietnam, the following conditions must be met:
- There must be no existing legal provision within Vietnam’s legislative system that regulates the civil relationship involving foreign elements.
- There must be no applicable rule in an international treaty to which Vietnam is a party.
- The involved parties must not have chosen an applicable law.
- The application of international customs must not contradict Vietnam’s fundamental legal principles.
When parties opt to apply international customs, they must ensure that the chosen custom does not conflict with Vietnam’s core legal values. If an international custom violates these principles, it will be deemed inapplicable, and Vietnamese law will take precedence.
International customary law serves as a fundamental component of global legal frameworks, influencing international relations and dispute resolution. In Vietnam, its application is permitted under specific conditions but remains subordinate to national legal principles. Understanding the role and limitations of international customs is crucial for legal practitioners and businesses engaged in cross-border transactions.
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