What We Talk about When We Talk about General Principles of Law

In the current debate on general principles of law, major controversies revolve around the “two-category” approach to this source and its relationship with the other sources. Seeking to disentangle these controversies in light of the rationale behind this source, this paper argues that the formation and identification of general principles are driven by the need for international law to be a coherent legal system; and accordingly, general principles of both categories embody the “implied consent” of States in light of the requirements and conditions of international law. Based on the characters of general principles flowing from this “implied consent”, which distinguishes them from treaties and custom, this article argues that the danger of general principles serving as an easier route for creating obligations for States is overrated; and despite the residual position of general principles under the lex specialis principle, they may complement, sometimes in crucial ways, the other sources and harden into them over time.