New role in domestic governance

In the era of globalisation, international law has been said to have moved away from its classical conception[1]. Initially, international law was established to facilitate and promote interstate cooperation[2]. In particular, Lauterpacht denoted that the concept of functions of international law has primarily judicial characteristics[3]. Also, Kelsen emphasised that the most important function of international law is the determination of the validity of the national legal orders[4].

However, the emergence of new threats at international level, such as terrorism and organised crime, have made States much more powerless to address these international problems on their own[5]. As a result, international law has shifted from its more 'classical' ideal into a more coherent international regime which requires the domestic policies of states to respond effectively to these new threats[6].

Taking into consideration the new role of international law in regulating and transforming the domestic affairs of States, recent developments within the European Union and the hypothesis that global problems can arise within a State and not necessarily from a State actor itself, Slaughter and Burke-White published the paper ‘The Future of International Law Is Domestic’ (or, ‘The European Way of Law’)’. This thesis illustrates the three ways in which international law could have direct and effective engagement with domestic institutions.

To that extent, the following essay seeks to critically evaluate the reasoning behind the model proposed by Slaughter and Burke-White. Critique and reasoning Slaughter and Burke-White argued that the most important inadequacies of States to respond sufficiently to global threats are; (1) the lack of domestic governance capacity (2) the lack of domestic will to act; and (3) new problems that exceed the ordinary ability of States to address[7]. As a result of the above, they proposed a three-layered approach to enhance domestic governance.

These were: (1) strengthening national institutions (2) backstopping domestic government; and (3) compelling action by national governments. [8] The first layer refers to instances such as the State failure of Somalia (1990) and the effects of natural disasters, such as the 2004 tsunami, where a State cannot act on its own. The establishment of networks of national governments could constitute a possible solution to enhance States to improve further the capability of their domestic governance to respond to these threats[9].

At these networks, governmental officials will exchange information with regard to their own activities on a particular matter and possibly provide technical assistance to less developed States[10]. The second measure is the backstopping of domestic government. Slaughter and Burke-White set out the example of the effective function of the International Criminal Court (ICC) under the principle of complementarity[11]. In addition they explain that the backstopping of domestic governments could constitute a ‘second line’ of defence, should the national institutions fail to take sufficient action.

Further, it is an opportunity for the international legal order to react. The third and final pillar of using international law for domestic affairs is the compelling of action by national governments[12]. In reality this means that where a national government is unwilling or fails to use its powers to address a transnational threat, then other national governments have to consider whether to enforce the appropriate tools in order to address such threats before contagion occurs[13].

However, several questions are raised regarding the nature, the character and the scope of the international law, for example, 'Is it still international? ' To that extent, we find Chimni suggesting that the intervention of international law into domestic affairs provides a new form of imperialism[14]. Furthermore, it is worth noting that Slaughter and Burke-White’s approach is closer to the control of the domestic regimes by international institutions, for example whenever the national institutions are not able to deal with either international challenges or domestic problems.

Thus, the example of ICC seems crucial for international peace and stability. However, other examples include the role of the International Monetary Fund (IMF) and the World Trade Organisation (WTO). Although it could be said they often serve the aims of the international economy rather than national ones[15]. Also, within international organisations the problem of transparency of decision making processes remains, which results in challenges to the principles of the rule of law and democracy[16].

To that extent, another crucial loophole in the thesis is the issue of democratic legitimacy. Individuals who are living within the territory of a State have the fundamental right to choose, independently, their one democratic system and to establish their domestic institutions. By leaving international law to intervene in domestic affairs and to influence individuals’ democratic wills, it is a matter of the morality of the law and the principle of sovereignty[17]. Conclusion

After a careful examination of the aforementioned ways of enforcing international law in favour of domestic governance, it could be argued that this is the ideal way to support weak States and to boost the capability of their national institutions. However, Slaughter and Burke-White’s approach for strengthening domestic institutions, backstopping domestic government and compelling action by national governments fails to address other important issues; such as democracy and State sovereignty. Moreover, there could be reasonable basis for argument that the paper is not objective.

For example it suggests that European Union Law constitutes a best practice of reform, but this does not take into account unforeseen scenarios such as the 2010 economic recession of some Mediterranean countries. Furthermore, another important question remains; since the compelling of action by national governments is regarded as an important pillar, we have to question why there were not any prosecutions, led from other States, for the criminals of the Iraqi war (in the event that the United States fails to indict)[18]. Despite its ambiguities, this paper actively promotes the discussion about the new role of international law.

The highlighting of the emergence of new threats in conjunction with the incapability of States to react provides a wake-up call for international law to play a more crucial role to restore international peace, security and justice. [19] Yet, there is much work to be done to assess democratic legitimacy of specific international arrangements. Since ‘rules can reflect and embody aspirations for a better world’[20], international institutions have to balance their role in promoting and enforcing international law with their own domestic interests, the paper is left somewhat wanting in its vocalisation of this last consideration.