Fitting Round Pegs into Square Holes: Multi-layered Governance and International Organisations
The softening of the traditionally hard border of the nation-state has had a significant impact on the study of law and legal systems. Until now, those who have studied the international level of law, with some notable exceptions, have sat rather isolated from those who study the domestic legal order. The discourses of public and public international law, with some notable exceptions, rarely come into contact with each other. Each has its own sphere of knowledge, its own principles and its own rules. Those who study and analyse these rules and the principles behind them may exchange pleasantries at conferences and even the odd conversation in the faculty common room but the two sub-species of the genus droiticus publicus do not normally interact. They are happy in their ignorance. The onset of 'globalisation' and the use of supranational institutions to create policy with a domestic element are forcing the barrier between domestic and international spheres of law to be gradually reassessed. For the public lawyer such changes require a greater knowledge of the institutions of the supra-national level that are playing an increasingly influential role in developing policy at the domestic sphere. For the international lawyer the change is, if anything, even more profound. Public international law has largely shied away from engaging with traditional public law concepts such as accountability and democracy. Now that international decisions are having such an impact on the domestic sphere good governance demands that the principles applied to domestic decision-making must be applied more generally. The 'internationalisation' of public law is a topic far too wide to tackle in any great depth here. This short work instead focuses on an aspect of this wider phenomenon that is likely to prove of increasing relevance as the globalisation trend continues. By using international obligations to create domestic regulations domestic institutions previously charged with such a role have been bypassed. The clear loser in such a development is the national legislature. The democratic deficit at the heart of the EU has become the classic example of this phenomenon. However, a second, less acknowledged democratic deficit applies to sub-national governments in relevant states.