{"title":"THE TWO-STEP METHODOLOGY FOR THE IDENTIFICATION OF GENERAL PRINCIPLES OF LAW","authors":"Mariana Clara de Andrade","doi":"10.1017/S0020589322000288","DOIUrl":null,"url":null,"abstract":"Abstract The two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.","PeriodicalId":47350,"journal":{"name":"International & Comparative Law Quarterly","volume":null,"pages":null},"PeriodicalIF":1.6000,"publicationDate":"2022-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"International & Comparative Law Quarterly","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1017/S0020589322000288","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
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Abstract
Abstract The two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.
期刊介绍：
The International & Comparative Law Quarterly (ICLQ) publishes papers on public and private international law, comparative law, human rights and European law, and is one of the world''s leading journals covering all these areas. Since it was founded in 1952 the ICLQ has built a reputation for publishing innovative and original articles within the various fields, and also spanning them, exploring the connections between the subject areas. It offers both academics and practitioners wide topical coverage, without compromising rigorous editorial standards. The ICLQ attracts scholarship of the highest standard from around the world, which contributes to the maintenance of its truly international frame of reference. The ''Shorter Articles and Notes'' section enables the discussion of contemporary legal issues and ''Book Reviews'' highlight the most important new publications in these various fields. The ICLQ is the journal of the British Institute of International and Comparative Law, and is published by Cambridge University Press.
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