HOW TO DO THINGS WITH GENERAL PRINCIPLES – JURISTS, INFORMATIZATION AND THE MAKING OF THE GLOBAL LAW

Abstract

Increased reference to general principles of law (GPL) in international dispute settlement is hardly questioned in scholarship. Adjudicators, counsels, and diplomats use them in different ways, including overruling explicit treaty provisions and making new law. Absent a text or fact as a point of departure (unlike in treaties and custom respectively), in what manner are GPL identified? The dissertation answers this question by examining how references to GPL are justified in judicial opinions. The dissertation shows that interventions via GPL become commonplace in international adjudication. In general, GPL enable jurists to escape formal rules crystallized by States and improvise new ones. Most notably, GPL are overwhelmingly identified performatively or by reference to the work of a handful of scholars, demonstrating the changing role of international law professionals. The dissertation theorizes this shift: Not only legal knowledge but international law itself is socially produced as an immaterial good by a rather small epistemic community, a transnational space that can no longer be defined by public international law.