The main sources of legal regulation of international cooperation in countering the illegal drug trade and similar substances.

Belyaev Ivan Yur'evich ORCID: 0000-0002-0126-0934 Graduate student, Department of Theory and History of State and Law and International Law, Federal State Autonomous Educational Institution of Higher Education "Samara National Research University named after Academician S.P. Korolev" 34 Moskovskoe Shosse str., Samara, Samara region, 443086, Russia ivanbeliaef@yandex.ru Other publications by this author

International cooperation in the field of countering illicit drug trafficking in modern conditions is becoming increasingly important. Thus, according to UNODC data, over the past 10 years, the number of users of narcotic drugs and similar substances has increased by 20% and amounted to 292 million people ^[1]. This fact requires the international community to coordinate efforts aimed at combating drug crimes. The Russian doctrine of international law has developed several basic definitions of international cooperation, which, by virtue of the provisions of the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States in accordance with the Charter of the United Nations, is the responsibility of States and one of the principles of international law. The following features are common elements of the basic concepts of international cooperation: 1) purposefulness; 2) consistency; 3) based on the norms of international law; 4) creation of legal norms and institutions. Thus, international cooperation in the field of countering illicit trafficking in narcotic drugs and substances similar to them should be understood as a joint comprehensive activity of States based on the norms of international law to create and apply substantive and procedural international and domestic norms in order to ensure global and regional drug security of the world community.

International cooperation in the field of countering drug crimes is characterized by the complex nature of legal norms, which include both norms of international law and domestic law; in foreign doctrine, this concept is referred to as the "system of indirect application of norms." One of the main problems in this area is the lack of a "common part" for a set of norms that establish and regulate responsibility for the commission of transnational drug crimes and measures to counteract the attacks in question. Due to the complex nature of the norms, a combination of both international and domestic regulatory material, it is necessary to identify a list of sources of international cooperation in the field of countering drug crimes.

One of the most important sources of international law in the field of combating illicit drug trafficking is the international treaty. The legal definition of an international treaty is contained in paragraph a of paragraph 1 of article 2 of the Vienna Convention on the Law of Treaties. Thus, a treaty means an international agreement concluded between States in writing and governed by international law, regardless of whether such an agreement is contained in one document, in two or more related documents, and regardless of its specific name. This definition of an international treaty is considered as a norm of customary international law ^{[2, p. 11]}.

However, this definition is not exhaustive, as it does not apply to the following cases listed in Article 3 of the 1969 Vienna Convention: a) international agreements concluded between States and other subjects of international law; b) between such other subjects of international law; c) international agreements not in writing. At the same time, these agreements are also qualified as a "treaty" for the purposes of international law ^{[3, p. 12]}.

Attributing an agreement to the category of an international treaty within the meaning of paragraph a of paragraph 1 of Article 2 of the Vienna Convention on the Law of Treaties gives rise to quite definite consequences from the point of view of international law. Firstly, the complex of relevant substantive and procedural norms of the sub–branch of international law, the law of international treaties, is being activated, starting with the principle of pacta sunt servanda. Since the Vienna Convention on the Law of Treaties codified many, but not all, of these norms, the law of treaties is independent and broader than this convention.

Secondly, the implementation of the pacta sunt servanda principle leads to the fact that an international treaty becomes a source of obligations for its participants. The emergence of international obligations presupposes legal regulation by means of international liability law. At the same time, the violation of an international obligation by a State is considered as an international tort subject to the norms of customary international law ^{[4, p. 55]}. Thus, a State that has concluded an international treaty, in case of its violation, may become a subject not only of the law of international treaties, but also of the law of State responsibility.

Thirdly, the conclusion of an international treaty leads not only to the application of the norms of the law of international treaties and the law of State responsibility, but also to its acquisition of the status of a source of international law. In accordance with Article 38 of the Statute of the International Court of Justice, the sources of international law include "international conventions, whether general or private, establishing rules directly recognized by the Contracting States."

According to paragraph a of paragraph 1 of Article 2 of the Vienna Convention on the Law of Treaties, a treaty means an international agreement concluded between States in writing and governed by international law, regardless of whether such an agreement is contained in one document, in two or more related documents, and regardless of its specific name. The binding nature of an international treaty for its subjects is determined by the operation of the principle of customary international law pacta sunt servanda. As stated in the 1969 Vienna Convention, which is largely a codification of customary international law in the field of international agreements, article 26 defines the principle as follows: "Every treaty is binding on its parties and must be faithfully executed by them."

There is no consensus among scientists regarding the legal nature of this principle. Most authors believe that pacta sunt servanda is a principle of customary international law, since its observance is mandatory not only for the parties to the 1969 Vienna Convention ^{[5, p. 1]}. Other legal scholars classify this principle as peremptory norms of jus cogens, which cannot be changed by subsequent international treaties ^{[6, p. 15]}. It is also suggested that the pacta sunt servanda principle can be considered as "a general principle of law recognized by civilized nations", which is not supported by well-known experts in the field of international law ^{[7, p. 38]}. Indeed, the general principles of law recognized by civilized nations are indicated as an independent source of international law in article 38 (1) (d) of the Statute of the International Court of Justice. In this regard, it seems illogical to consider another single-level source (the general principle of law) as the basis of one source of international law (an international treaty). According to Fitsumori, it is better to consider an international treaty as a source of obligation, and the only legal norm related to the principle under consideration is the obligation to comply with an international treaty ^{[8, p. 164]}.

In the modern period, the so-called "rule-making" international treaties have become widespread. Such treaties are designed to have a general rather than limited impact, and they can be contrasted with those treaties that simply regulate specific issues between a small number of States ^{[9, p. 542]}. Multilateral conventions may even establish a special legal regime applicable to their participants. Examples of such conventions are the Geneva Conventions, the Vienna Convention on the Law of Treaties, and conventions in the field of illicit drug trafficking.

Multilateral international treaties can be the basis for the creation of derivative legal instruments regulating the implementation of contractual provisions, while maintaining their connection with the original treaty as a formal source of law. International bodies with the authority to make independent decisions and issue operational documents can be created on the basis of these treaties. The UN Security Council and the UN General Assembly can be considered one of the most famous international treaty bodies.

The formulated provisions in normative international treaties should not contradict the peremptory norm of general international law (jus cogens). In the event of such a contradiction, as stated in Article 53 of the 1969 Vienna Convention, the treaty is considered null and void, since the peremptory norm of general international law is recognized by the community of States as a whole as a norm from which deviation is unacceptable.

As A. N. Talalaev notes, "international treaties play a very important role in the process of creating customary norms of the law of international treaties... The accumulation of such treaty norms arising from parallel international treaties may gradually lead to the emergence of universal treaty practice, which States have tacitly called upon as a binding customary rule. Many norms of the law of international treaties appeared in this way" ^{[10, p. 6]}. And further: "It may seem paradoxical at first glance that modern international law is basically contractual law, and the international treaty itself was built and based on international legal custom until recently" ^{[10, p. 4]}. This contradiction was aptly noted by V. N. Durdenevsky ^{[11, p. 31]}.

Another important source of international law, along with an international treaty, is international legal custom. The formation of international legal norms in the field of interstate practice, which has regulatory significance, is due to the absence of a supranational legislative body. Thus, unlike domestic legal regulation, legal custom retains its role as an important source of international law, which is explained by the absence of legislative and central authorities at the interstate level ^{[9, p. 69]}.

As you know, the most important feature of a legal norm is its binding nature. However, if any provision of international law does not have a sign of being binding on its subjects, this may be due to the following reasons. Firstly, this provision may relate to an area of law where there is a stable practice, but which is established by virtue of universal recognition, rather than on the basis of a formulated obligation. For example, the formation of practice in the course of the established rules of mutual courtesy in diplomatic relations. Secondly, there may be a practice that could be considered as a potential legal custom, but either such practice is not really general, or it is not consistently established, or there is no evidence of the existence of opinio juris. Thirdly, the established rule of conduct at this stage or by its nature does not imply its formalization in the form of legally defined rights and obligations ^{[7, p. 4]}.

In the legal doctrine, sources of law are classified on various grounds, one of which is the division into material and formal sources of law. The differences in the concepts of formal and substantive sources of law are most clearly expressed by Openheim: a formal source of law is "the source from which a legal rule derives its legal force." The material source of law "reflects the origin of the content of the regulation ... Contracts represent one formal source of law, and customs another. For example, the formal source of this norm may be custom, and its material source may be in a bilateral agreement concluded many years ago, or in a unilateral declaration of the state" ^{[12, p. 23]}.

Some authors distinguish between negotium and instrumentum in the context of legal sources. An obligation formulated in a legal norm is considered as an abstract entity (negotium), and the document containing this norm is considered an instrumentum. The first concept is the "content", and the second is its "container" ^{[13, pp. 174-175]}.

It should be noted that the concept of sources of law is mainly associated with the theory of legal positivism, a characteristic feature of which is the idea that international law is a product of the consent of States as its subjects ^{[14, p. 35]}. Such consent can be traced either in treaties, where it is direct and explicit, or in international legal customs, which express the consent of the community of States to consider certain requirements for subjects of law as necessary. Thus, treaties and international legal custom are the two main sources of international law. Customary law can be found formulated in the opinions of scholars or the decisions of international tribunals, which are not sources of law in themselves ^{[7, p. 15]}. From the point of view of positivism, international law is the collective will of States, which determines the law to which these States are subject.

The classic definition of international law is given in the famous SS Lotus case: "International law regulates relations between independent States. Consequently, the legal norms binding on States are the result of the expression of their free will in conventions or the use of generally recognized legal principles and are intended to regulate relations between these independent communities or are aimed at achieving common goals. Thus, the imposition of restrictions on independent states cannot be presumed" ^{[15, p. 18]}.

If two States have entered into an agreement obliging them to perform certain actions against each other, then this obligation is the result of an agreement of their wills, namely, a voluntary commitment that restricts everyone's freedom of action. This is also true of a multilateral agreement with a large number of parties: the obligations imposed on the UN member states by its Charter are contractual obligations voluntarily assumed by each participating state through the ratification of the Charter ^{[7, p. 16]}.

Modern authors identify the following non-classical sources of international law: unilateral acts of States; acts of international law-making by international organizations; agreements between States and international organizations; a conciliatory list; international standards; the use of analogy as a source of international law; decisions of international tribunals; some sections of natural law (jus naturalle) ^{[16, pp. 87-110]}.

The theory of "two elements" has become the most widespread in identifying criteria that make it possible to determine the moment of origin and the content of an international legal custom. According to this approach, the conclusion about the formation of an international legal custom is based on compliance with two criteria: the existence of universal practice and the recognition of this practice as a legal norm (opinio juris). This "two-element" theory formed the basis for the legal definition of international legal custom, formulated in paragraph "b" of paragraph 1 of Article 38 of the Statute of the International Court of Justice. As S. Tomuchat noted, the innovativeness of the two–element approach to the formation of international custom lies in achieving a balance between two worlds - the one that already exists and the one that it should become ^{[17, p. 291]}.

The inextricable link between the two elements in the definition of international custom is indicated in the decision of the International Court of Justice in the case "On the Continental Shelf of the North Sea". It says that not only should the practice be consistent, but it should also be carried out in such a way as to demonstrate a belief in its obligation caused by the existence of a legal norm that makes such practice necessary. The requirement of the existence of such a belief, i.e. the presence of a subjective element, underlies the very idea of opinio juris sive necessitates ^{[18, p. 77]}.

It should be noted that the two-element theory does not require the mandatory participation of all States in the relevant practice or the existence of a consensus among them on the legal necessity of such practice in order to form an international custom. Conclusion No. 8 of the International Law Commission states that such practice should be universal in the sense that it should be sufficiently widespread and representative, as well as consistent.

When determining the substantive element of an international legal custom, which consists in determining the existence and content of universal practice, first of all, the practice of States is taken into account. At the same time, the practice of States developing in the field of legal regulation at the domestic level in legal relations with their own citizens is not taken into account. As stated in Paragraph 7 of Article 2 of the UN Charter, this Charter in no way gives the United Nations the right to interfere in matters that are essentially within the internal jurisdiction of any State. Paragraph 1 of Conclusion No. 4 of the Opinion emphasizes that the requirement of universal as a constitutive element of customary international law primarily applies to the practice of States.

This position on the emergence of an international legal custom in the course of interstate interaction, which has an emerging practice in its objectified expression, is shared by many well-known jurists. Thus, G. I. Tunkin emphasizes that "the formation of a customary rule occurs as a result of communication between states, in which each state strives to consolidate such rules as norms of behavior that would meet its interests" ^{[19, p. 99]}. H. Thirlway notes that "since international law, including custom If the law regulates relations between states in its essence, then the practice that is important for establishing the rule of customary law should be the practice (action or omission) that develops in relations between states" ^{[7, p. 72]}.

According to some researchers, the concept of state practice refers to every action or statement of the state that attest to international custom ^{[20, p. 10]}. However, not every activity of the State can be considered as a practice related to the formation of an international custom. As indicated by the UN International Commission, only activities related to the exercise of its executive, legislative, judicial or other functions can be considered practice in the context of the formation of an international custom. Other functions include, in particular, commercial activities or the administrative management of the private sector ^{[21, p. 109]}. Moreover, the practice can take many different forms. It includes both material and verbal acts. Under certain circumstances, it may include inaction ^[22].

G. I. Tunkin believes that "the custom of not taking action under certain circumstances in some cases undoubtedly leads to the creation of a norm of behavior that can be a legal norm" ^{[20, p. 101]}. According to H. According to Thurlway, the main sign of inaction as a form of practice can be considered its deliberate nature, although sometimes it is very difficult to distinguish between purposeful abstinence from actions and indifference or even "bureaucratic incompetence" ^{[7, p. 73]}.

An example of "deliberate inaction" is the Lotus case of the International Court of Justice in 1927, during which it was stated that "the custom observed by States to refrain from prosecuting foreign citizens accused of causing a ship collision on the high seas represents a customary norm of international law" ^{[23, p. 25]}.

The list of specific forms that practice can take in the context of the formation of international custom is open and may include: diplomatic acts and diplomatic correspondence; behavior in connection with resolutions adopted by an international organization or at an intergovernmental conference; behavior in connection with treaties; executive behavior, including practical behavior "on the ground"; legislative and administrative acts; and decisions of national courts ^[24]. At the same time, none of these forms of practice has a higher evidentiary value than the others, but during the consideration of a particular case, their contribution can be assessed as heterogeneous ^[25].

The most important distinguishing feature of the practice necessary for the formation of an international custom is its universality. The requirement of universality means that such practices must be, first of all, widespread and representative, as well as consistent. The time factor in this case is not decisive for establishing the formation of an international custom. In this regard, the International Court of Justice in the case "On the Continental Shelf of the North Sea" pointed out that the expiration of only a short period of time, in itself, is not an obstacle to the formation of a new rule of customary law. Of greater importance is the fact that during this period of time, no matter how short it was, the practice of States was both extensive and virtually uniform ^{[18, p. 74]}.

The draft of the UN International Law Commission on the definition of international custom notes that the practice of its formation must meet the criterion of universality. In this case, universal practice is understood as a practice that meets three criteria.: 1) the practice should be fairly widespread; 2) it should be representative; 3) it should be consistent.

As the International Court of Justice noted in the cases "On the Continental Shelf", the practice of States, including the practice of States whose interests are particularly affected, should be "both extensive and practically uniform in the meaning of the mentioned provision" ^{[18, p. 72]}. At the same time, in the case of Nicaragua v. the United States, the International Court of Justice pointed out that there was no need for the practice in question to fully comply with the alleged customary rule. In order to draw a conclusion about the existence of customary norms, it is sufficient that the behavior of States generally complies with such norms, and that cases of State behavior incompatible with a particular norm are generally considered as violations of this norm, and not as indicators of recognition of a new norm ^{[26, p. 432]}.

Thus, the existence of certain contradictions in the emerging practice does not exclude the existence of universal practice within the meaning of the provisions of paragraph b, paragraph 1, Article 38 of the Statute of the International Court of Justice. In the case "On Military and Paramilitary Activities in and against Nicaragua," it was emphasized that "the court does not consider that in order to establish a customary norm, the relevant practice must absolutely strictly comply with this norm... to establish the existence of norms of customary law, it is sufficient that the behavior of States as a whole complies with such norms" ^{[26, p. 98]}.

The UN International Law Commission notes that if the practice is universal, then no specific duration is required for the formation of an international custom ^[27]. At the same time, the essence of the practice lies in the consistent repetition of certain actions by different subjects, which is covered by the requirement of "constant and uniform practice" ^{[28, p. 100]}. Obviously, in order for a universal practice to develop, it is necessary to expire a certain period of time. In this regard, the theory of instant customary law proposed by Bin-Cheng does not stand up to criticism, since it contradicts the generally accepted two-element theory of customary international law.

Bin-Cheng formulated this theory on the basis of studying the normative nature of UN General Assembly resolutions 1721 A (XVI) of 12/20/1961 and 1962 (XVIII) of 12/13/1963, in which the principles of space law were formulated for the first time ^{[29, p. 36]}. These resolutions occupy a special place in the context of the formation of customary international law, since prior to their adoption, the opinion prevailed about the unconditional extension of State sovereignty to outer space over its territory ^{[29, pp. 23-48]}. However, after the launch of the first satellite into outer space, the States quickly agreed to establish a special legal regime for this new activity ^{[30, p. 24]}. The idea of the possibility of an "instant international custom" has found support among a number of legal scholars, including Lukashuk and Makarchik ^{[31, p. 494]}.

In fact, the theory of "instant international custom" is a kind of a group of single-element theories of the formation of international custom. Only in this case, we are not talking about the sufficiency of interstate practice as the only element, but about the need only for an opinio juris to establish the existence of a new international legal custom ^{[32, p. 531]}. In his opinion, this element reflects an abstract norm of customary international law and defines both its legal characteristics and content ^{[32, p. 531]}. State practice, on the other hand, serves only as proof of the content of a specific rule of customary international law or the opinio juris of a given State ^{[32, p. 36]}. Bin-Cheng states that as long as the opinio juris regarding the existence of a new international legal custom is not rejected by members of the international community, a norm of customary international law can be created "instantly" ^{[32, p. 532]}. According to this author, this happened during the adoption of UN resolutions on outer space, and may also happen in the future if member states recognize that the corresponding opinio juris communis or opinio generalis testifies to the norm of customary international law ^{[32, p. 38]}. I. I. Lukashuk also supports the aforementioned theory of the formation of conventional norms based on the presence of only opinio juris. According to him, the "instant custom" consists mainly of norms that were originally formulated in international treaties or in acts of international bodies and organizations ^{[31, p. 493]}. Nevertheless, he recognizes that instant customs exist alongside traditional customs, crystallized from state practice and the corresponding opinio juris ^{[31, p. 508]}.

Thus, the main sources of international cooperation in the field of combating illicit trafficking in narcotic drugs and substances similar to them are an international treaty of normative content and international custom. At the same time, this does not mean that this area of international cooperation is no longer regulated by anything: unilateral acts of States; acts of international law-making by international organizations; agreements between States and international organizations; analogy are also sources of international cooperation that must correspond to the main sources. Custom as a source of international cooperation in the field of combating drug crimes has not received an unambiguous assessment in the doctrine of international law, however, there are no regulatory restrictions in recognizing this form of law as a source of international cooperation in the field under consideration, subject to the criteria of normativity of custom. Also, since the fight against drug crimes is an example of a system of indirect application of norms, the list of sources of international cooperation includes domestic law, in which the system of sources is based on the constitutional norms and principles of each specific legal system.