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

Alec Stone Sweet* and Mads Andenas†

The paper argues for the centrality of GPLs [general principles of law] as a primary source of international law.  GPLs constitute basic building blocks of systemic coherence, both internally and between regimes (Part I).  Focusing on them casts a bright light on judicial lawmaking, the fate of the “fragmentation” of international law, and inter-court dialogue.  Debating the topic within the field of general public international law reveals fundamentally different “traditionalist” and “progressive” camps (Part II).  In the meantime, the courts and tribunals of regional and specialized treaty regimes have constructed semi-autonomous domains of inter-locking principles, transcending jurisdictional boundaries, altering the nature and scope of international law and the decision-making of powerful domestic courts (Part V).  The law and politics of GPLs have now become prominent, as the International Court of Justice (Part III) and the International Law Commission (Part IV) have recently moved to recognize, and contribute to, the development of GPLs.  In the conclusion, we address an intractable dilemma: in developing principles, as a means of enhancing the effectiveness of international legal systems, judges reveal gaps between state consent and control, potentially undermining their own support.

* Alec Stone Sweet is the Sir Y. K. Pao Chair, the Faculty of Law, the University of Hong Kong.

† Mads Andenas KC is Professor, the Faculty of Law, the University of Oslo, the Inland Norway University of Applied Sciences and Welfare Across Borders (LEVEL), funded by the Norwegian Research Council.