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47 Harv. Int'l L.J. 327 (2006)
The Future of International Law Is Domestic (or, the European Way of Law)

handle is hein.journals/hilj47 and id is 335 raw text is: VOLUME 47, NUMBER 2, SUMMER 2006 The Future of International Law Is Domestic (or, The European Way of Law) Anne-Marie Slaughter* William Burke-White** International law has traditionally been just that-international. Consisting of a largely separate set of legal rules and institutions,' 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 relation- ships 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 be- tween domestic and international politics. The classic model of international law as separate from the domestic realm reflects the traditional problems the international legal system sought to ad- dress, 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. * Dean, Woodrow Wilson School of Public and International Affairs, Princeton University. ** Assistant Professor of Law, University of Pennsylvania School of Law. The authors wish to thank Larry Heifer and the participants in the Vanderbilt Law School Faculty Colloquium, Feb. 2005, for their comments and feedback, and Nus Choudhry for invaluable research assistance. 1. This approach is closely linked to the monist view of international law. Monists argue that interna- tional law and domestic law are part of the same system, in which international law is hierarchically prior to domestic law. Dualists, in contrast, claim that international and domestic law are part of two distinct systems and that domestic law is generally prior to international law. See generally J. G. Starke, Monism and Dualism in the Theory of International Law, 17 BRIT. YB. INT'L L. 66 (1936). While both of these theories provide important linkages between international law and domestic law, for adherents of either approach the functions and institutions of international law remain largely at the international level. See generally id. 2. See Mavromatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (set. A) No. 2, at 12 (Aug. 30). Yet the decision of a state to espouse its citizen's claim is one of domestic politics-the state has no obligation to do so. International law does, however, regulate the right of the state to espouse an individ- ual claim, limiting such rights to cases of close connection, usually in the form of real and effective nationality between the state and the citizen. See, e.g., Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4 (Apr. 6). 3. See generally Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 HARV. INT'L L.J. 1 (2002).