Sources and application of international law[edit | edit source]
International law consists of binding legal obligations among sovereign states. Two of the basic principles of the international legal system are that sovereign states are legally equal and independent actors in the world community, and that they generally assume legal obligations only by affirmatively agreeing to do so. The most effective instruments in creating international law are international agreements, which may be either bilateral or multilateral.
Some of these agreements, such as the United Nations Charter, establish international institutions that the parties agree to invest with certain authority. It is also generally accepted that there is a body of customary international law, which consists of practices that have been so widely followed by the community of nations, with the understanding that compliance is mandatory, that they are considered to be legally obligatory.
International institutions have legislative authority to create legal obligations for nations only when their member nations have agreed to give them that authority. The most prominent example is the power of the United Nations Security Council to pass resolutions requiring individual nations to perform or refrain from certain actions in order to protect or restore international peace and security in the context of a particular situation. The decisions of the International Court of Justice are binding upon nations that have accepted the jurisdiction of the Court and are parties to litigation before it.
Other international institutions can also be given the power to impose binding obligations upon nations that agree to submit to their authority. In addition, certain actions of some international institutions, such as the International Court of Justice and the United Nations General Assembly, are considered to be persuasive evidence of the existence of principles of customary international law.
As with domestic law, the primary mechanism that makes international law effective is voluntary compliance. Also as with domestic law, the threat of sanctions is often required as well. The international legal system provides institutional enforcement mechanisms such as international litigation before the International Court of Justice and other judicial and arbitral tribunals, as well as the right to petition the United Nations Security Council to authorize coercive measures to protect or restore international peace and security. The international legal system also provides self-help enforcement mechanisms such as the right to use force in individual and collective self-defense and the right in some circumstances to repudiate treaty obligations which have been violated by another party. An aggrieved nation may always withdraw from voluntary relationships involving diplomatic representation and most kinds of commerce. Even the right to publicly complain about another nation’s illegal behavior may provide an effective enforcement mechanism if such complaints generate diplomatic costs for the offending nation.
The international community ordinarily does not negotiate treaties to deal with problems until their consequences have begun to be felt. This is not all bad, since the solution can be tailored to the actual problems that have occurred, rather than to a range of hypothetical possibilities. One consequence, however, is that the resulting law, whether domestic or international, may be sharply influenced by the nature of the events that precipitate legal developments, together with all their attendant policy and political considerations.
We can make some educated guesses as to how the international legal system will respond to information operations, but the direction that response actually ends up taking may depend a great deal on the nature of the events that draw the nations’ attention to the issue.
The actors in the international legal system are sovereign states. International legal obligations and international enforcement mechanisms generally do not apply to individual persons except where a nation enforces certain principles of international law through its domestic criminal law, or in a very limited class of serious offenses (war crimes, genocide, crimes against humanity, and crimes against peace) that the nations have agreed may be tried and punished by international criminal tribunals.