Examine Slaughter and Burke-Whites reasoning on the ways in which international law can be said to play a new role in domestic governance

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Week 5 assignment

Examine Slaughter and Burke-White’s reasoning on the ways in which international law can be said to play a new role in domestic governance



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

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.

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. 

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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. 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.

The second measure is the backstopping of domestic government. Slaughter ...

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