A Contextualized Account of General Principles of International Law

Abstract

This Article examines general principles of international law through the innovative means of comparing their use in four different, novel areas of international law — international environmental law, international investment law, international criminal law, and international indigenous rights. By doing so, the Article is able to make the distinctive claim that there is no one, single methodology for analysis of general principles of international law. Rather, each area of international law tends to use a methodology suited to its policy objectives and overall characteristics as a specific area of law. The Article characterizes two predominant academic approaches to general principles: a purely “domestic approach” and a “hybrid approach”. The Article argues that international environmental law has tended to use a hybrid approach, whereas international investment law has limited itself to a domestic approach, manifesting immediately the differentiated analysis in different areas. International criminal law and international law on indigenous rights manifest more mixed approaches to analysis, again based on the needs of these different areas. These areas, however, also manifest some criticisms of the use of general principles that have led sometimes to restraints on them in the service of policy needs of different areas of international law. The Article ultimately puts the novel argument that this contextual analysis is not simply descriptively accurate but is a manifestation of an appropriate contextually-differentiated development of international law in light of concerns for its legitimacy in regulating actors other than state entities.