General Principles of International Public Authority: Sketching a Research Field

Abstract

The term principle is ubiquitous in the thematic studies and the crosscutting studies of this research project on the exercise of public authority by international institutions. Apparently its legal analysis and normative framing is difficult to achieve without principles. This is no specificity of this undertaking: Legal research on the public authority of international institutions regularly deals with the issue of principles. General principles for all international institutions are of specific interest as they might tie the various institutions into one legal universe. Yet, precisely their variety, even heterogeneity raises the question if such principles can be anything but “stars which give little light because they are so high.” This quotation from Francis Bacon’s “On the Advancement of Learning” precedes Edward Carr’s classical study on the problems of a sweeping, principled and idealistic approach to international phenomena. The aim of this contribution is therefore not so much a discussion of individual principles, which is done in other studies of this research project. A first aim is to study more closely how principles are used in legal discourses (B.). I will distinguish between structural principles, guiding principles and legal principles. This makes it easier to grasp the various meanings and scholarly agendas pursued under the term principle. In section C. I discuss the impact of emerging principles of international authority on the general evolution of public international law and its scholarship in times of global governance. Thereby I hope to add further support to our general approach and to prepare the ground for the most difficult part of this contribution, the one on the development of general principles (D.). In section D., I will first review possible legal bases of general principles (D.I.), suggesting internal constitutionalization as the best path in light of the heterogeneity and fragmentation of international law. Second (D.II.), I will discuss the roles of international and domestic judges in that process, stressing their common, but differentiated responsibility. Eventually, some individual principles of international institutions will be outlined in light of the principles of the European Union (E.).

I am grateful to Sabino Cassese and Christian Walter as well as Eyal Benvenisti, Giacinto della Cananea, and Stefan Kadelbach for comments on an earlier version of this paper, to Marc Jacob for language review and Eva Richter for editorial assistance.