Beatrice I. Bonafé and Paolo Palchetti
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.