3.4. Limitations of international law

The international (and similarly the transnational) lawmaker is faced with a number of problems and limitations that do not face the domestic lawmaker to the same extent. Not the least of these is the very legitimacy of the exercise itself. Whereas the domestic lawmaker inherits the legitimacy of the national legal system by which she was appointed or elected, from what source do lawmakers in international arena, particularly non-state actors, gain their legitimacy? If their constituents can be identified, what checks and balances are in place on an international level to ensure that they are accountable to those constituents?

Once this has been settled, the lawmaker then encounters very significant substantive problems in reconciling the transnational character of the lawmaking to which she is called with the legacy of the Westphalian system. Both legal questions of jurisdiction, and practical problems of enforcement loom large.

Even the use of soft law does not overcome all of these difficulties. Say that a model law is drafted to be adopted into the legal systems of any states that choose to do so. How would such a law take account of the differences between legal systems of different heritage, such as common law and civil law (or indeed Islamic law)? How could a law of uniform content bridge the ideological differences between East and West, or indeed North and South?

These difficult questions will now be examined, although answers cannot be provided to all of them. Problems and limitations of other forms of large-scale decision-making outside the international public policy arena will not be considered here, but will be discussed in Chapter 4.