'General Principles and the Other Sources of International Law: Conclusions'
in M Andenas, M Fitzmaurice, A Tanzi, and J Wouters (eds), General Principles and the Coherence of International Law (Brill Nijhoff 2018) (Forthcoming)
11 Pages Posted: 2 Jul 2018
Date Written: May 1, 2018
The starting point for my reflection on general principles and the other sources of international law is the proposition that ‘general principles’ is the most peculiar source of international law. The sense of peculiarity and associated normative unease has been a theme in the discussion of general principles throughout the last century. In an intervention in the 2017 meeting of the Sixth Committee of the UN General Assembly, the Austrian representative noted that ‘[t]he source of international law known as “general principles of law” was subject to the most divergent interpretations and needed urgent clarification’. That is not a new concern. The members of the Advisory Committee of Jurists tasked with drafting the Statute of the Permanent Court of International Justice held and articulated significantly different views about the nature and function of what was eventually expressed as ‘the general principles of law recognized by civilised nations’. I will discuss the five contributions to Part I against this rather daunting background, and do so in four steps, moving from the general to particular and considering in turn the relationship between general principles and the international legal order (Section 2), customary law (Section 3), treaties (Section 4), and judgments (Section 5). The key question, it seems to me, is this: is the (relative) messiness of general principles A Bad Thing, reflecting the immaturity of this aspect of the international legal architecture, or A Good Thing, providing flexibility to the international legal argument so as to better address challenges of (a particular field of) international law (at a particular stage of development)?
Keywords: General Principles of International Law; Sources of International Law; Customary Law; International Courts and Tribunals; Law of Treaties
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