The Customary International Law of Cyberspace
Abstract
The first thing to know about international law is that it bears only a passing resemblance to the kind of law with which most people are familiar. Domestic laws in most countries are passed by some sort of sovereign body (like Congress) after due consideration. Statutes are carefully crafted so the law has a precise effect. International law is nothing like that. Contrary to popular belief, treaties are not the primary means of establishing international law. The body of international law is a jumble of historic practice and tradition as well as signed agreements between nations. Within this patchwork of guidance, customary international law occupies a position of preeminence in developing areas of the law ahead of treaties and conventions. Customary international law develops from the general and consistent practice of states if the practice is followed out of a sense of legal obligation. When this occurs, customary law is considered legally binding on nation-states. In situations not addressed by established consensus on what constitutes lawful behavior, nations may take actions they deem appropriate. This is the heart of the well-established Lotus principle, so named for the International Court of Justice decision in which it was established. Only a handful of actions are considered peremptory norms of international law; that is, things that are universally held to be wrong and impermissible. These are exceptional areas, including piracy, human trafficking, and hijacking. One reason there are so few universally accepted norms is the very nature of the international legal regime. It is established by what nations do and believe they are bound to do, making consensus difficult to reach.
Document Details
- Document Type
- Technical Report
- Publication Date
- Jan 01, 2012
- Accession Number
- ADA584414
Entities
People
- Gary Brown
- Keira Poellet