Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 8: Relying on general principles in international law

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.

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