Public international law - tutorial one

‘A legal system grounded in the will of its subjects that does not possess a centralized
legislature or effective means for its enforcement cannot be a form of law at all’ - Daryl J
Levinson, Law without the state, Oxford Academic. Discuss this statement in the purview
of international law.

Introduction:
Daryl J Levinson critically challenges whether international law, lacking centralized legislative and
enforcement institutions, can truly be regarded as "law." This invites an analysis of whether structure or
functionality defines a legal system, and what constitutes “law” beyond traditional domestic models.
Levinson suggest that “law”, must be Grounded in will of its subject – consent (doctrine of consensus),
Have a centralized legislature (a body that creates binding rule), Possess effective enforcement
mechanism (coercive power to ensure compliance)

2 main parts - one is of supportive of Levinson’s perspective, On the other hand, contrast is drawn for
discussion on whet

In the point of view of Daryl J Levinson, he suggests that “law”must be Grounded in will of its subject –
consent (doctrine of consensus), Have a centralized legislature (a body that creates binding rule),
Possess effective enforcement mechanism (coercive power to ensure compliance). With that being said,
international law is critically challenged as it was being regarded as lacking centralized legislative and
enforcement institutions, thus can it truly be regarded as “law”? This invites an analysis of whether
structure or functionality defines a legal system, and what constitutes “law” beyond traditional domestic
models. International law, as concerned here, is a decentralized system. Unlike domestic legal systems,
it does not have a central legislative body, supreme executive authority and a robust, compulsory
enforcement mechanism. We will discuss this in two main parts, the arguments for and against his
statement.

Nature of International Law

● A central legislative body (such as Parliament or Congress).

● A supreme executive authority.

Main Body:
● Levinson’s Perspective:
In domestic systems, the legislature creates laws, the judiciary interprets them, and the
executive enforces them. International law lacks a centralized authority at all three levels, which
may call into question its effectiveness and legitimacy as a legal system.
● Arguments Supporting Levinson’s Skepticism:
○ No centralized law-making authority: Treaties are products of negotiation, not
legislation by a standing body.
○ Weak enforcement mechanisms: States often breach international obligations with
minimal consequences (e.g., the US withdrawal from the Paris Agreement, 2017).
○ Selective compliance: Compliance with international decisions, such as ICJ rulings, is
often based on political will.
○ There is no "World Legislature." UN General Assembly resolutions are not binding unless
passed by the Security Council under Chapter VII (Brownlie, Principles of Public
International Law, 8th edn, 2012). Even then, enforcement largely depends on state
cooperation.
● Counter-Arguments Defending International Law:

1. International Law Creates Binding Obligations

● States accept obligations through treaties, customs, and general principles.

● Even without a central authority, once consented, states consider themselves legally bound
(Vienna Convention on the Law of Treaties, Art. 26 — Pacta sunt servanda: agreements must be
kept).

2. International Law Influences State Behavior

● States generally comply with international law to maintain their reputation, secure reciprocity,
and avoid sanctions or international isolation (Henkin, How Nations Behave).

● Compliance rates are high in areas like diplomatic relations, trade, and maritime law.

3. Enforcement Exists, Though Differently

○ International courts (e.g., ICJ judgments).

○ Economic sanctions.

○ Retaliation measures (lawful countermeasures).

○ Soft enforcement: shame, loss of legitimacy, political pressure.

Example: ICJ’s ruling in Nicaragua v. United States (1986) showed how international law can operate
even when strong powers are involved.

4. International Law Provides Order and Predictability

● It creates a framework for peaceful coexistence — rules on territory, diplomacy, use of force,
and trade.

● Without international law, chaos and anarchy would prevail among sovereign states.

5. Customary International Law Binds All States

● Even states that haven't signed a treaty can be bound by customary law (e.g., prohibition on
genocide, prohibition of torture).

● These universal norms (jus cogens) show that law exists beyond mere voluntary agreements.

6. International Law Adapts to New Realities

● International law evolves with time to meet new challenges: cyber law, space law,
environmental law.

● This flexibility shows a living legal system that responds to global needs.

7. Consent and Participation Legitimize the System

● States voluntarily participate in law-making (treaties, customs).

● Their involvement, negotiation, and acceptance (or objection) strengthens the legitimacy and
legal nature of international law.
 The UN Charter as a Constitution for the International Community

● The UN Charter acts like a "constitution" — setting fundamental rules on peace, security, and
human rights.

● Widespread acceptance and practice show that international society accepts common legal
standards.
○ Functionality over Formality: Law can still exist without centralized enforcement,
focusing instead on norm regulation and behavioral expectation.
○ Consent-Based Legitimacy: Treaties and customs derive binding force through voluntary
state consent, embodying the principle of sovereignty.
○ Growth of International Institutions:
■ The International Court of Justice (ICJ) has decided key disputes (e.g., North Sea
Continental Shelf Cases 1969).
■ The International Criminal Court (ICC) prosecutes individuals for crimes like
genocide and crimes against humanity.
■ The World Trade Organization (WTO) provides a forum for resolving trade
disputes efficiently.
○ Collective Action Mechanisms: UN Security Council measures and regional organizations
(e.g., African Union interventions) show that enforcement can be collective rather than
centralized.

Argument against the point of there being no centralised legislature and effective means of
enforcement in public international law
- Legislature - In public international law, law-making occurs through treaties and the
gradual development of custom
- Enforcement - and enforcement—though less forceful, occurs through diplomatic
consequences, economic sanctions, countermeasures, and collective international action.
Institutions like the United Nations, the International Court of Justice (ICJ), and the
World Trade Organization (WTO) serve quasi-legislative or judicial roles, albeit with
limitations.
- The claim that enforcement is weak also overlooks the power of soft enforcement:
reputational damage, loss of trust, and diplomatic costs often compel states to comply.
For instance, many states adjusted their climate policies after the Paris Agreement not
because they were legally forced to, but because of political pressure, global
expectations, and peer review mechanisms.

Is it still Law?
Despite these features, international law is generally recognized as law because:
 ● It creates binding obligations - when the states sign treaties or adhere to customary law, they
are legally bind to those rules.

● It regulates behavior and provides mechanisms for dispute resolution. - through the
International Court of justice or arbitration panels.

● It is acknowledged by states themselves as law (opinio juris). - the belief that a particular
practice is legally required.

● International courts and tribunals enforce its principles, even if enforcement is weaker
compared to domestic law. - but the legal processes and rulings still matter and influence state
conduct.

● Examples:
○ Barcelona Traction Case (ICJ, 1970): the court emphasized that the states have
obligations not just to each other, but to the international community as a whole - these
are called ergo omens obligation
○ Compliance with the Montreal Protocol on Substances that Deplete the Ozone Layer
(1987) shows successful international cooperation without coercive enforcement.
○ The prohibition against the use of force (UN Charter, Article 2(4)) is widely accepted and
observed, though violations occur.

○ Rules of the law of the sea, international humanitarian law, and human rights law are
followed by most states most of the time, despite limited enforcement.

Conclusion:
Although international law does not mirror the domestic legal structure, it still performs essential
functions in regulating behavior, resolving disputes, and maintaining international order. Therefore, it
qualifies as a form of law despite its structural differences.