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General Principles of Law as a Judicial Technique

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Papadaki,  Matina
Department II, Max Planck Institute Luxembourg, Max Planck Society;

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Papadaki, M. (2017). General Principles of Law as a Judicial Technique. Talk presented at ICON Society 2017 Conference entitled: “Courts, Power, and Public Law”. Copenhagen. 2017-07-05 - 2017-07-07.


Cite as: http://hdl.handle.net/21.11116/0000-0000-853E-5
Abstract
This presentation focused on the use of general principles of law in judicial decisions of international courts as a technique employed by judges rather than a source of law. General principles of law were initially conceived as gap-fillers and as an antidote to sparse international law rules as the drafting of the Permanent Court of International Justice shows. On the converse, nowadays we are witnessing an ever-increasing density of international law both in terms of adjudicative fora and international legal instruments. This invites, in my view, a rethinking of the use of general principles in international law. If gaps are rarer and parallel, potentially conflicting, norms and decisions are more frequent, general principles of law could assume an additional law of safeguarding system coherence. For these reasons, I will try to show, through an examination of case law, that general principles are more accurately described as a result of judicial reasoning responding to instances where there is either sparsity or density of international law norms. Thus, general principles are not so much a source of legal obligation of international law subjects but more of a yardstick to assess their actions in the context of adjudication. This means that their identification by the judges is what primarily confirms their existence, if not creates them. This however calls into question both the positivist understanding of general principles of law and their functional reconceptualisation.