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Hopkins, John --- "What's Wrong with Rationalising International Criminal Law?" [2007] NZYbkIntLaw 6; (2007) 4 New Zealand Yearbook of International Law 85

What’s Wrong with Regionalising International Criminal Law?

John Hopkins^[∗]

I. Introduction

The subject of ‘international criminal law’ is one of the growth areas of international legal study. The construction of a settled academic community of ‘international criminal lawyers’ is well advanced, driven by the development of the International Criminal Court (ICC) and acceptance of ‘core’ crimes by the bulk of the international community. These developments have seen post and undergraduate students flock to modules examining this brave new world and such courses have proved popular amongst Law School Managers, eager to accept the monetary rewards that they bring. International criminal law is, at least in legal terms, a sexy subject.

The development of such an academic discipline is to be welcomed and it is good to see students enthused by a particular area of law. It is also entirely understandable that a novel development such as this should cause such interest. However, the rapid rise of this discipline has been accompanied by a lack of conceptual discussion as to what the field comprises and its links to wider issues of international law and governance. This article aims to place international criminal in this wider context.

The development of the discipline and the occupation of the field by public international lawyers have had a substantive impact upon the subject matter examined under the heading international criminal law and taught within such courses. The term ‘international criminal law’, as employed commonly today, tends to be seen by those within academia as having a very specific, ‘public international law’ meaning. A mention of the phrase immediately leads to discussion of the ICC, the ad hoc International Tribunals for the Former Yugoslavia and Rwanda and the hybrid tribunals established in East Timor and Cambodia amongst others. To some extent this reflects the interests of those academics who have been attracted to the subject, rather than a normative definition.

In this context, regionalisation is seen as a threat to the newly emerging international legal order and should be opposed at all costs.^[1] It implies the weakening of the carefully constructed consensus that lies at the heart of the Rome Statute of the International Criminal Court. This paper aims to challenge this view. It is not so much that the negative view of regionalism is wrong but that the whole question that is being asked is itself confused. The problem is that the accepted view of international criminal law and the way that its academic analysis has developed has separated one element of the phenomenon from its various other incarnations. This creates the impression that the development of the ‘core’ crimes and the ICC are isolated subjects in themselves. Their connections, if they have any, are to other aspects of public international law. In reality the phenomenon of international criminal law is far broader than those academics who study the development of the ICC and the various tribunals created around the world for the prosecution of ‘core crimes’ would have us believe. These developments must be seen as part of an internationalisation of criminal law and of domestic policy in general. International criminal law must therefore be seen as part of a general trend towards the internationalisation of domestic public law. The vast majority of these developments have not occurred at the global, but rather at the regional level. The issue of the regionalisation of international criminal law is therefore far more complex than at first it may appear.

In essence, international criminal law has been hijacked by those whose existing interests and agendas focussed on the internationalisation of particular crimes. For those who doubt this reality, let us not forget, that when the concept of an international criminal court was first mooted, it was not intended to deal merely with the heinous crimes under the jurisdiction of the ICC.^[2] For reasons that cannot be discussed here, the momentum behind the ICC was utilised by those who wished for an international court of the type that has now been created. This has left regional institutions to take up much of the momentum towards the broader development of international criminal law. Regionalism, far from being a threat to the internationalisation of criminal law has been its main catalyst.

While the academic focus has been on the development of International criminal law at the global level, its achievements remain limited. This is not to denigrate the establishment of the ICC and the acceptance of ‘core crimes’ by the majority of the international community. There is no doubt that the establishment of the ICC and the Rome Statute is a major advance in establishing global norms of behaviour for individuals and States. It is to be welcomed, but such norms are, and are likely to remain, limited in their scope. They are in effect the lowest common denominator of criminal behaviour and thankfully genocide, war crimes and crimes against humanity will remain the exceptions to general human behaviour. The evidence of this is that the ICC has currently charged one individual.^[3] I look forward to the time when there are more prosecutions by the ICC than academics studying it, but I fear that day is a long way off.

Despite the academic community’s focus on the establishment of these global criminal norms and the ‘glamour’ of the ICC, it is the regional level that has quietly created the major developments in the internationalisation of criminal law and its enforcement. It is this level that has seen the greatest harmonisation and co-operation between criminal law systems and enforcement agencies in what might be regarded as the more mundane areas of criminal law. Lacking the glamour of the core crimes, such developments have tended to be eclipsed by global developments in the academic world but they have a far greater quantitative impact upon citizens and societies.

There is nothing wrong therefore with regionalising international criminal law. Regionalisation does not represent a retreat from the minimal global norms of criminality established in the Rome Statute. Instead the creation of international criminal law particularly at the regional level marks a major shift in the nature of international law and law itself. This is part of a much wider phenomenon that has seen international law increasingly influential in domestic legal systems.

The growth of international criminal law means that areas of domestic law, integral to the very essence of the nation State idea, are now handled at the international/supra-national level. This is not in itself a problem but such developments have led to the de facto development of a very different governance structure for such issues outside the traditional nation State model. The creation of these new models raises issues of legitimacy and accountability that are largely absent from the current discourse. The international legal community has generally accepted these developments uncritically and portrayed them as a positive development. It is the submission of this paper that such a position is naïve and portrays international law in an unrealistic light. These developments have created an executive dominated decision-making process, outside the constitutional limits of the domestic State. It is not enough that such developments have generally been meritorious in their intentions. They require new mechanisms to re-establish their legitimacy, accountability and effectiveness. This necessitates a re-thinking of the forms of international law and governance into areas previously seen as the domain of domestic public law.

II. Conceptualising International Criminal Law

As has already been made clear in the introduction to this paper, this author takes issue with the narrow definition of international criminal law that has become popular in public international law circles. If one is to be so arrogant as to challenge such orthodoxy, it is necessary to provide an alternative definition.

The development of the Rome Statute and the core crimes is one facet of a wider phenomenon. It is important to understand the wider context of this development and the consequences of it. The post-war internationalisation of criminal law comprises three interconnected component elements. These can be can be categorised as:

1. The development of global norms – particularly the so called ‘core crimes’.

2. The development of regional organisations with the ability to create sanctions in their fields of competence (notably the European Union).

3. The internationalisation of 'ordinary law' and the creation of the trans-national law in response to the perceived internationalisation of criminal activities.

The first of these categories are those crimes that are regarded as transcending the sovereignty of the State in their seriousness. At the heart of these “core crimes” are those that have become the jurisdiction of the ICC; namely genocide, war crimes and crimes against humanity. There are others that could be added to this list, such as crimes against peace or certain fundamental human rights. Whatever the exact composition of this category, these are the closest we have to international norms in criminal law. They can be recognised as crimes in the true ‘international’ sense, piercing as they do the shield of sovereignty that the State so often provides. As such they prove less of a problem for the issues discussed in this paper. Nevertheless, even here the difficulties in establishing what exactly they comprise, shows that in this area of general agreement, important differences remain.^[4] The fact that several important States remain non-signatories to the Rome Statute is just the most visible example of this.

The second category of international criminal law has developed as a consequence of the development of supra-national and international organisations, particularly at the regional level. These organisations have often developed around the core purpose of increased trade and the creation of continental or sub-continental markets, but most have much wider ambitions.^[5] The most advanced of these is that of the European Community/Union and many of the more recent examples (or re-invigorated older ones) are clearly influenced by its success.^[6] In the EU the development of policies by a supra-national body has led both to the creation of region-wide norms and sanctions for non-compliance (and therefore de-facto criminality) often enforced through the domestic courts. In the European example, this has been particularly true in relation to competition law.^[7] The development of European norms in fields such as environmental protection, although not directly enforceable at the European level, has also created ‘European’ levels of criminality through the sanctions of the domestic courts. Recent decisions of the European Court of Justice have taken this development further with the de jure criminal law jurisdiction in “the essential objectives of the community” being implied from the EC Treaty.^[8]

The third and final category represents a very different form of international criminal law, involving not the creation of additional criminal sanctions by regional institutions but the extension of existing domestic criminal law, of a much more mundane nature. These activities, such as smuggling and money laundering already exist in domestic legal systems, but are now increasingly the subject of international harmonisation or enforcement. These crimes are now perceived to present such trans-national features as to require regulation at the international level. The response of many States to the internationalisation of these crimes has been the creation of international agreements and the creation of supra-national bodies to harmonise criminal law and its enforcement across international boundaries, particularly at the regional level.

This internationalisation of ‘ordinary law’, primarily at the regional level, has often been justified in terms that hide the ‘ordinary’ nature of the law being discussed by use of the term ‘trans-national’ crime. However, this linguistic spin cannot disguise the fact that although such crimes may now be cross-border, they remain rooted in domestic legal systems.

These three variants; namely the development of global criminal norms, the establishment of international regional criminality and the internationalisation of ‘ordinary criminal laws’ comprise the subject of ‘international criminal law’. Collectively these developments pose significant challenges to our traditional notions of accountability in criminal law, distanced as they are from the domestic constitutional structures. However, it is in the latter two areas that these developments pose the most immediate problems.

Firstly, they lack settled norms relating to their definition, severity and importance. When we talk of genocide or torture we have a relatively clear agreement as to the criminality of the action and its severity, reflected in the fact that those who practice such atrocities rarely admit they have done so. When we move to activities such as fraud and drug use, for example, the issues becomes more subtle. Decisions taken as to their criminality and seriousness are based upon what the community deems acceptable. Such issues are not the stuff of fundamental rights and norms and are settled domestically through the normal policy process.

Secondly, the examples are the furthest advanced, primarily at the regional level. For this reason, the remained of this paper focuses on the impact of these developments. This does not mean that elements of the argument do not apply to the enforcement of global criminal norms in the Rome Statute, merely that the limited nature of this development and its infancy mean that such problems are less in evidence at the present time.

It is worth emphasising that the aim of this paper is not to argue that the internationalisation of criminal law or its regionalisation is unnecessary or undesirable. In fact the evidence suggests the opposite. The development of the ICC has ensured that individuals responsible for committing horrendous crimes which would be regarded as such in most, if not all, domestic legal systems will now be held responsible for their actions. In relation to the extension of criminal law to the international plane in other areas, the rationale is also clear. It is natural, for example, that criminal organisations will make use of globalisation to avoid detection or increase their profits. It is therefore logical and indeed desirable that domestic law enforcement agencies should respond to such developments and governments should consider international regulation of domestic criminal law. It is also understandable that international treaties and governance be developed to facilitate these changes.

Nevertheless, the development of these agreements and organisations, however formally constructed, raises uncomfortable questions for legitimacy, accountability and effectiveness that have not traditionally been the concern of international lawyers. The creation of international systems of law enforcement and criminal law need to be considered in the light of traditional public law approaches to the exercise of administrative power.

The developing internationalisation of criminal law particularly at the regional level is part of a wider change in the nature of international and domestic public law and signals a fundamental change in the relationship between them. As international law encroaches upon the territory of the national legal system, particularly in the form of regional supra-national organisations, the traditional focus of international law must change. Issues surrounding the use of discretion in law enforcement that would be commonplace in a domestic criminal system must also be applied at the new supra-national level too. Failure to do so will not only lead to an ineffective system but one where unaccountable executive power is a danger to its citizens.

III. The Governance Turn and International Criminal Law

The internationalisation of domestic law is hardly a new phenomenon. In fact the changing nature of international law was recognised by Friedmann in 1964 who described it as a shift from classical to “active” international law.^[9] The former merely attempted to ensure the peaceful co-existence of States while the latter required active steps be taken to ensure State practice and legislation was in accordance with international norms.

In more recent times, the pace of such developments has stepped up dramatically. States have increasingly realised their impotence in the face of global challenges and have moved towards legal harmonisation and co-operation in a wide range of areas. This internationalisation of domestic public law has now been given impetus by the move towards supra-national rather than inter-governmental modes of decision-making. The great majority of these developments have taken place at the regional, rather than the global level.^[10]

It is often said that such developments are the will of the international community or have seen decision-making moved to the international or regional sphere. The implication of this is that an ‘international’ level exists. In practice this is a misunderstanding of the reality of international relations. The international ‘level’, with few exceptions, remains the sum of the national executives as representatives of their nation States. The main beneficiaries of the internationalisation of domestic law, is not some mystical international level, but national executives who collectively comprise the ‘international community’.^[11]

This ‘rise of the executives’ has been one of the major changes in government practice over the past 50 years. It is a feature not just of international law but of governance in general as the complexities of the modern world require that ever greater discretion be granted to the executive branch. A key driver of the process has been the internationalisation of 'domestic' law. International law making is traditionally the exclusive preserve of the executive branch and as such the internationalisation of domestic law leads to its empowerment.

The modern development of executive decision making, particularly in the international field was recognised by political scientists in the 1980s as a recognisable phenomenon and given the term ‘governance’ to describe it. Particularly important amongst these works were those of Rhodes, Marks and Hooghe.^[12] They recognised that policy decisions are increasingly being taken by networks of decision makers outside the traditional institutions of government. Rhodes in particular recognised the dangers of such developments without suitable safeguards. However, such warnings were largely ignored by those who utilised these writings to describe and promote the phenomenon of international regulation that emerged strongly in this period, particularly in Western Europe.

Executive empowerment and the need to deal with it, has long been recognised in the field of Public Law, and in its modern form it is arguably the main focus of the subject. However, the issue has only rarely been dealt with in the international context. There is no reason why this should be the case. The rise of international executive ‘governance’ means that this issue can no longer be ignored at the international level.

It is important at this point to make clear that executive power itself is not the problem. The modern world cannot function without such governance structures and Locke was fundamentally wrong in his analysis. Where law ends tyranny does not begin. Were this the case the dominance of executive decision making in most societies would suggest that we live in such a tyrannical world. The reality is that, as Davis succinctly put it, where law ends, discretion, not tyranny, begins.^[13] To continue with Davis’ theme, the challenge of the law is not to restrain the executive’s use of discretion but to ensure that such power is confined, checked and controlled if it is to avoid the dangers of ineffectiveness and arbitrariness. These arguments apply whenever discretion is exercised and it is as important for the international level as it is for the domestic.

The issue to be addressed therefore is not how to stop international law-making but to ensure that we recognise the significant consequences for domestic legal structures that it creates. This requires a re-assessment at both the domestic and international levels of how executives and the discretion that they exercise can be held to account in an increasingly complex system.^[14]

The internationalisation of criminal law has developed for good reason and there is no way of getting the genie back into the bottle, even should we wish to. The problem is how to ensure that our ‘genie’ does what we want it to. The regionalisation of criminal law therefore brings with it significant issues that are not traditionally associated with the subject of public international law – namely accountability and the use of discretion by the executive branch.

IV. Putting the Public Back into International Criminal Law

Although the changing nature of international law has been recognised by many scholars, relatively few have taken up the challenge of examining the impact of these developments on our traditional understanding of domestic decision-making.^[15] The omission is slowly being remedied^[16] and it is now abundantly clear that the internationalisation (or regionalisation) of issues traditionally seen as the subject of domestic law, poses significant challenges for both international and domestic public law. Indeed, in some areas, the connections between these subjects are becoming so complex that it becomes increasingly difficult to see the join.^[17] The internationalisation of criminal law, particularly at the regional level, is one element of this much wider phenomenon.

The wider internationalisation of domestic law and the ‘governance turn’ brings significant challenges to the national systems of accountability and executive control. In particular, as has been recognised in the European Union, the internationalisation of such policies can create a democratic deficit in the decision-making process. The encroachment of international law into the field of criminal law brings such issues into a sharper focus in a way that is much more evident than other forms of legal internationalisation.

Criminal law is a special area of law and the sanctions granted to the State to enforce it are at the very heart of the nation State concept. Its internationalisation therefore has a much more obvious impact upon domestic systems of law and accountability. The concept of criminal law is closely related to a community’s acceptance of particular norms of behaviour. In a democratic society, the demos must agree to the norms of behaviour and methods of enforcement. Such powers of criminal law should only be used in accordance with the wishes of the community and should not reflect the wishes of the executive. It is for this reason that Western democracies in particular place great emphasis on limiting the powers of the executive to create and enforce such laws. The problem for this traditional view of criminal law and its legitimacy is that the international or regional community has no demos, or indeed, any means of ensuring community agreement for policy choices.^[18] The internationalisation of criminal law thus risks the bypassing of the traditional domestic constitutional safeguards without development of adequate replacements.

V. Regional Criminal Law and the Governance Turn

Traditional discussions often see the rise of the executives and the growth of international governance in terms of domestic legal structures. In essence they perceive it as a problem that needs to be resolved by restraining the executive branch. Solutions based upon these approaches tend to focus on restraining the executive and ensuring that significant international decisions have parliamentary involvement.^[19] These arguments, which can be seen as part of the red light theory of public law, see executive power as something that should be kept to a minimum.^[20] However, such approaches misunderstand the nature of modern government and international relations. Domestic parliaments are not in a position to comment meaningfully on treaties after they are negotiated. Their role will only be to approve or reject. In complex multi-lateral negotiations particularly, such a nuclear option is unlikely to be utilised as it will serve no useful purpose. In addition, the nature of most of these developments in international criminal law require executive co-operation and decision making, which parliaments are singularly ineffective at undertaking.

The rise of international criminal law therefore raises a series of issues that cannot be resolved in the domestic arena and are not being sufficiently considered in the international sphere. These issues are not traditionally the stuff of international law and thus it is understandable that they have not been sufficiently addressed; nevertheless, ignorance is no excuse. When criminal law matters are discussed at the domestic level they are rightly subject to significant critical debate. There is no good reason why this should not occur at the international level. There is thus nothing wrong with regionalising criminal law as long as we recognise its consequences for constitutional and administrative law and, by extension, develop institutions to reflect this.

So how can these issues be addressed? Many of those who have criticised the governance turn in international law have done so on the basis of the lack of a demos to approve or reject policy decisions taken by the decision-making level (that is, the regional or international sphere). The position taken by many seems to be that only when such a demos exists can such policy decisions be legitimately taken by these international institutions. This view appears similar to those who advocated the ‘red light’ theory seen above. It assumes traditional European representative governments as the model for a State and assumes a level of homogeneity that rarely exists within States. If we want to engage in international co-operation in the international sphere then the lack of a demos needs to be addressed, but it should not be seen as a prerequisite in itself.

In the absence of a demos at the regional or global level, we must turn to other methods to ensure that individual rights are protected and that executive discretion is utilised effectively in the field of regional criminal law. The European Union’s experiences in this area offer some guidance to the wider world on this matter.

The first response must be to recognise the existence of these issues and to cease to regard the development of international criminal law as technical in nature. The consequences for a failure to do this can be clearly seen in the example of the European Arrest Warrant case.^[21] In this case, criticisms of the failure to develop parallel European detention rights when the Framework decision was passed were ignored. The constitutional courts of Germany and Poland, amongst others, rejected the domestic legislation that created the EWA on a variety of constitutional grounds. If the international law and organisations do not address civil liberties themselves, the domestic courts may do it for them.

The second, and perhaps most important, response has been to develop institutions and administrative norms to manage such developments. The European Union’s Hague programme on greater co-operation in the criminal sphere introduced a number of limited institutional mechanisms to balance the increase in law enforcement co-operation. Primarily, these concern the information sources that are at the heart of the European co-operation process. Chief amongst these have been the establishment of the European Data Protection Supervisor which has responsibility for information requests relating to the Schengen and Europol databases (amongst others). A joint supervisory body also acts as a watchdog over the activities of Europol. The European Ombudsman has also developed his remit to cover Europe’s developing criminal law enforcement co-operation mechanisms, although only to a limited extent.

However, the European Union’s response to the issues raised above has remained inadequate largely because Member States and the Commission have continued to persist with presenting the development of criminal co-operation and harmonisation as a technical issue, requiring little democratic legitimacy or independent oversight. To use the current language, they are issues of ‘governance’ rather than government. Technical decisions such as these, so the argument goes, are taken in the name of efficiency and are best left to lawyers, experts and officials. This is regional criminal law on the cheap.

The creation of such regional criminal law, however patchy, is not merely an administrative decision. This is a policy decision which requires democratic input, however it is achieved. This has not happened and instead the EU has embarked into the brave new world of regional criminal law without the constitutional safeguards that we would traditionally associate with such developments in the domestic arena.^[22] By classing such criminal law measures as executive matters, and invoking ‘new’ theories of governance, the open flank of domestic constitutional safeguards has been exposed. All it took was a linguistic slight of hand.

VI. Conclusion – What’s Wrong with Regionalising Criminal Law?

The regionalisation or indeed globalisation of criminal law is not, in the mind of this author, a negative concept and the comments given above should not be seen in this light. This author is not opposed to the development of international ‘governance’ structures. It is a morally neutral concept. The issue is not whether we internationalise the criminal legal system but rather, if we do, then how do we ensure the accountability, legitimacy and ‘fairness’ of this development. These are issues not normally associated with the study or practice of international law, but the internationalisation of criminal law means that this can no longer be the case.

To resolve this issue we must move away from the simplistic notion that seems to pervade the discussion of international criminal law of ‘international law equals good, domestic Law equals bad’. The issue is not where the law is sourced from but its content, the legitimacy of its creation and the accountability of its enforcement. These issues are the same whether such law emerges from the international or the national sphere.

If the regionalisation of law occurs without systems being created to deal with the control of discretion then the risks and consequences for the future of governance at all levels are enormous. To ensure 'good' law and its effective enforcement we must ask the same questions and address the same issues that we would at the domestic level. In the international sphere, as at the domestic, this means addressing the accountability and use of discretion by an executive body (or bodies). The fact that such developments deal with trans-national crime or globally accepted norms does not change anything. It may make it more acceptable that such developments are aimed at people smugglers and terrorists but this does not change the basic premise. Executive power, wherever it exists, must be structured, controlled and confined if we want it to be exercised effectively and fairly.

The difficulties in creating such systems, when the nation States are democratic and bound by a relatively strong commitment to the rule of law has proved difficult enough in the European example. When one considers that less than half of the world’s States can be classified as democratic even in a broad sense of the word, the problems are immediately obvious. If they cannot be overcome however, then the internationalisation of criminal law, regional or otherwise, must wait until such obstacles are removed. If not, the benefits of international criminal co-operation will be outweighed by the growth in unrestrained executive power and unaccountable criminal sanctions.

^[∗] Senior Lecturer, School of Law, University of Canterbury, New Zealand.

^[1] See Steven Freeland (at 45) and Regina Rauxloh (at 67) in this volume.

^[2] For discussion of the exclusion of the so-called treaty crimes see Neil Boister, ‘The Exclusion of Treaty Crimes from The Jurisdiction of the Proposed International Criminal Court: Law, Pragmatism, Politics’ (1998) 3 Journal of Conflict and Security Law 27-43.

^[3] Thomas Lubanga Dyilo, see International Criminal Court Latest Press Releases, ‘Pre-Trial Chamber I commits Thomas Lubanga Dyilo for trial’, online: <http://www.icc-cpi.int/press/ pressreleases/220. html> (last accessed 2 June 2007).

^[4] See, for example, the recent debate on the nature of genocide in the context of the Darfur crisis, the niceties of which I suspect are lost on the victims themselves.

^[5] PJ Cardwell and R Kirkham, ‘The European Union: a Role Model for Regional Governance?’ (2006) 12(3) European Public Law 403.

^[6] Ibid.

^[7] Article 83 of the EC Treaty and EC Regulation 1/2003. See Dermot Cahill (ed), The Modernisation of EU Competition Law Enforcement in the European Union (Cambridge University Press, 2004).

^[8] See case Commission v Council, ECJ Rep, C-176/03 (13 September 2005). The yet to be decided case of C-440/05 (Ship Source Pollution) may further clarify this issue. See also House of Lords European Union Committee, 42^nd Report of Session 2005-05: The Criminal Law Competence of the European Community (The Stationery Office, London, 2006).

^[9] Wolfgang Friedmann, The Changing Structure of International Law (Stevens, 1964), 367.

^[10] See for example Cardwell and Kirkham, above n 5; ibid.

^[11] Arguably the influence of some commercial enterprises and a few NGOs is such that they could be included in this category.

^[12] R Rhodes, ‘The New Governance: Governing Without Government’ (1996) 44 Political Studies 653; Gary Marks, Liesbet Hooghe and Kermit Blank, ‘European Integration from the 1980s: State-centric versus Multi-level Governance’ (1996) 34(3) Journal of Common Market Studies 341.

^[13] Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (University of Illinois Press, 1971), chp 1.

^[14] The consequences of legal internationalisation have long been recognised in federal States where the internationalisation of traditionally domestic subjects has disempowered the constituent States to the benefit of the national executive. Possibly due to the fact that the constituent States have a political voice and have lost autonomy as a result of this, these developments have taken on more of a political significance in such countries. In Canada and Germany, for example, debates surrounding the internationalisation of domestic law continue to be a significant issue in inter-governmental relations. The issues recognised in the federal States have echoes across all States however, as the internationalisation of domestic law brings with it the bypassing of domestic constitutional safeguards, and what the German Lander refer to as the ‘Open Flank’.

^[15] See, for example, Douglas Lewis (ed), International and Regional Institutions (Hart, 2006).

^[16] See, for example, the Institute for International Law and Justice, ‘Global Administrative Law’ Project, online: <http://www.iilj.org/global_adlaw/index.htm> (last accessed on 10 May 2007). Interest had been sparked particularly by developments in the European Union and the WTO although the analysis can remain trapped in traditional arguments of Parliamentary Sovereignty.

^[17] For example, the imposition of UN sanctions in New Zealand occurs without reference to the New Zealand Parliament while a similar proposition is proposed for the recognition of terrorist organisations.

^[18] Cris Shore, ‘Government Without Statehood? Anthropological Perspectives on Governance and Sovereignty in the European Union’ (2006) 12(6) European Law Journal 718.

^[19] Mai Chen, ‘A Constitutional Revolution? The Role of the New Zealand Parliament in Treaty-Making’ (2001) 19(4) New Zealand Universities Law Review 448.

^[20] See Carol Harlow and Richard Rawlings, Law and Administration (Butterworths, 2^nd ed, 1997).

^[21] See the German Federal Constitutional Court decision of 18 July 2005 (BVerfG, 2 BVR 2236/04) declaring Germany’s European Arrest Warrant Act void.

^[22] Ironically, had the constitutional treaty been approved, some of these issues would have been addressed (although to a limited extent), by the explicit recognition of criminal law as a function of the Union with a commensurate role for the accountability and administrative law mechanisms of the Union.