The Future of International Law is Domestic (or, The European Way of Law)

Abstract

International law has traditionally been just that—international. Consisting of a largely separate set of legal rules and institutions,1 international law has long governed relationships among states. Under the traditional rules of international law, the claims of individuals could reach the international plane only when a state exercised diplomatic protection and espoused the claims of its nationals in an international forum.2 More recently, international law has penetrated the once exclusive zone of domestic affairs to regulate the relationships between governments and their own citizens, particularly through the growing bodies of human rights law and international criminal law.3 But even in these examples, international law has recognized a clear demarcation between domestic and international politics. The classic model of international law as separate from the domestic realm reoects the traditional problems the international legal system sought to address, namely the facilitation of state-to-state cooperation and the treatment of one state’s nationals by another state. Whether regulating the immunities of diplomats or the rights of ships on the high seas, the traditional purposes of international law have been interstate, not intrastate.