Bonafé, Beatrice I.; Palchetti, Paolo --- "Relying on general principles in international law" [2016] ELECD 585; in Brölmann, Catherine; Radi, Yannick (eds), "Research Handbook on the Theory and Practice of International Lawmaking" (Edward Elgar Publishing, 2016) 160

Book Title: Research Handbook on the Theory and Practice of International Lawmaking

Editor(s): Brölmann, Catherine; Radi, Yannick

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781953211

Section: Chapter 8

Section Title: Relying on general principles in international law

Author(s): Bonafé, Beatrice I.; Palchetti, Paolo

Number of pages: 17

Abstract/Description:

Without pretending to describe and discuss the longstanding doctrinal debate on general principles, this chapter aims at exploring some controversial issues concerning the process of principles-generation, including the question of the consensual or non-consensual nature of this source of law and the question of the autonomy of general principles from other sources of international law. It also addresses the role of international courts and tribunals in the determination and application of general principles as well as the role of states in promoting the use of general principles. The authors submit that lawmaking by general principles is a hybrid process which combines consensual and non-consensual elements. In particular, while the determination of general principles inevitably accords certain discretion to the interpreter, such discretion does not mean complete detachment from state consent.