The Three-Step Methodology For The Identification Of General Principles Of Law And Its Fulfillment Of Normative Requirements Of International Law

It is not a newly submitted argument that the general principles of law,as the third source of international law,have always played a less important role compared to the treaties or custom in the international legal system.Based on the theory of the normativity of international law,this paper reviews the very original concept of general principles of law which,according to the result of this examination,does not fully satisfy the essential requirements of the normativity of international law.The practical function of general principles of law has prompted the international law scholars and practitioners to search for ways to address this problem,and it seems that applying a technical methodology for the identification of the general principles has become the preferred option in the course of positivism.On the basis of the International Law Committee’s Two-step Methodology for the identification of general principles of law,this paper has proposed the Three-step Methodology to identify a specific general principle of law.With the help of positive analysis as well as the comparative legal method,this paper focuses on the identification practices of the International Court of Justice,the International Criminal Court,and the Court of Justice of the European Union grounded in which it examines how the Three-step Methodology has been applied by international judicial bodies in specific cases,and to what extent each step has contributed to the fulfillment of normative requirements of the international law.Finally,following the above analysis,this paper argues that the dialectical relationship between the Three-step Methodology and the normative requirements of international law provides useful insights for China to build the normative system of international law from a macro perspective.The main points of this paper are as follows:Chapter 1 introduces the theory of the normativity of international law and points out that general principles of law fail to meet the normative requirements of international law at the conceptual level.Then it introduces the identification of a specific general principle as a practical way to solve this problem.The International Law Commission’s study on the general principles of law included the identification of this source and proposed the “two-step methodology”.This paper,on the other hand,is innovative in that it pushes forward the starting point of the identification so that how the three international courts examine the prerequisites for introducing the general principles of law into a specific case are included in the whole process.So a “three-step methodology” is constructed.This paper assumes that each step of the process and its corresponding specific methods can contribute to the fulfillment of a specific general principle of law toward the realization of normative requirements of international law.Therefore,the specific general principles of law confirmed in practice by the “threestep methodology” are characterized by the state consent basis and the neutral standing,which means they meet the normative requirements of international law in the end.This view is strongly supported by cases where general principles of law have been invoked and applied by those three international judicial bodies.Chapter 2 examines the practice of international judicial bodies in the first step of identification,i.e.,the “prerequisite test”,and finally it summarizes how this step fulfills the normative requirements of international law.Before international judicial bodies formally enter into the substantive identification of a general principle of law,they must determine whether the existing situation necessitates the introduction of the general principles of law as a source of international law.The “necessity” refers to “legal lacunae” in the international law system due to the lack of clarity on specific matters,mainly in the sense that international judicial bodies are unable to resolve specific issues relying on treaties or custom,and thus have to resort to general principles of law as gapfillers.Still,it is not uncommon for international courts to introduce general principles of law directly without making prerequisite tests,but under such circumstances,the general principles of law only play a supplementary function instead of being used as the main legal basis.According to the above practice,international judicial institutions indirectly and implicitly incorporate the consideration of the two normative requirements,referring to state consent and neutrality into the identification process.Chapter 3 analyzes how international judicial bodies perform the second step of identification to establish the “existence of a common principle” and in doing so give a specific principle the normative character of state consent and neutrality.The cases of the three international courts show that the implementation of this step depends on a combination of the comparative law approach,which operates on a horizontal level by examining the relevant items in the various legal systems of the world or in the domestic law of a certain range of member countries,and on a vertical level by distilling the substantive content of the general principle of law based on the horizontal examination.This test is the most central part in identifying a specific general principle of law as a source of international law.Through this test,the most fundamental and intuitive link between the embodied general principle of law and the requirements of state consent as well as neutrality is established.Chapter 4 looks into the practical performance of the final step of the identification of general principles of law which is named the “transposability” test.This step aims to verify that the common principles deduced from domestic law can be transposed into the international law system and function smoothly,avoiding any incompatibility within the unique structure of international law.Although it is generally accepted in theory that the common principles deduced from domestic law cannot be automatically transposed into international law considering the structural differences between these two legal orders,the determination of “transposability” has not been precisely defined in the international judicial practice.Chapter 5 reviews the previous studies at a macro level and summarizes the dialectical relationship between the “three-step” methodology for identification and the normative requirements of international law.The “three-step” methodology is aimed at satisfying the normative requirements of international law.However,due to the fact that international law is grounded in international society,it is impossible to realize the absolute normativity of international law,which is not the main way to develop and enlarge the normative system of international law.This suggests that China should therefore be a builder of international legal system under the guidance of the idea of building a community with a shared future for mankind and building a new type of major-power relationship.