The Law and Politics of the General Principles of Law in the Twenty-First Century

Abstract

The paper argues for the centrality of general principles of law [GPLs] as a primary source of international law. GPLs constitute basic building blocks of systemic coherence, both internally and between regimes. Focus on principles casts a bright light on judicial interpretation and lawmaking, the fate of the “fragmentation” of international law, and inter-court dialogue, revealing defining differences between “traditionalist” and “progressive” camps within the field of general public international law (Part II). Meanwhile the courts and tribunals of regional and specialized treaty regimes have constructed semi-autonomous domains of inter-locking principles, transcending jurisdictional boundaries and deeply altering the nature and scope of international law, and the decision-making of powerful domestic apex courts (Part V). In recent years, the law and politics of GPLs have become prominent, as the International Court of Justice (Part III) and the International Law Commission (Part IV) have joined in the process of recognizing, and contributing to, the development of principles of the international legal system. In the conclusion, we address an intractable dilemma: in developing GPLs as a means of enhancing the effectiveness of international legal systems, judges reveal gaps between state consent and control, potentially undermining their own support.

Keywords: international law, general principles, judicialization, fragmentation, systemic interpretation, judicial dialogues