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The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.

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.

The recourse to customary rules by international adjudicators is a valuable tool for the understanding of this source of international law. This chapter examines patterns employed by the WTO’s Appellate Body when referring to customary international law. This forum is of interest due to its limited material jurisdictional, as it can only ascertain violations of WTO law. The chapter thus analyses the means through which the adjudicators identify customary rules, which customary rules they resort to and for which purposes they rely on these ‘extraneous’ sources. Given these jurisdictional limitations, it is also relevant to understand the difference between the use of customary rules for purposes of interpretation and the application of these sources within WTO dispute settlement. The Appellate Body’s reliance on customary international law is limited: it only resorts to codified rules of treaty interpretation and state responsibility. It also does not properly identify rules of international law, but asserts their existence through other authoritative references. Through this methodology, and by only referring to rules on treaty interpretation and state responsibility as customary law, the AB has more leeway in not overstepping the line between application and interpretation of customary international law and by consequence its jurisdictional limitations.

A discussao concernente a protecao ambiental tem crescentemente ganhado atencao na comunidade internacional, mas ha grandes dificuldades a serem superadas em prol desta tutela. Paralelamente, ascende a questao da proliferacao de tribunais internacionais de materias especificas, e assim nasce a discussao sobre a possivel criacao de um tribunal internacional para o meio ambiente. Desta forma, este trabalho analisa a maneira como esta ideia se verifica atualmente no cenario internacional, bem como as perspectivas para o seu exito. Para tanto, aborda inicialmente o cenario da pluralidade de jurisdicoes internacionais, em seguida analisando como algumas dessas cortes abarcam a materia ambiental na resolucao dos contenciosos que lhe sao submetidos. Analisa-se, diante das insuficiencias que podem ser constatadas nessas jurisdicoes, a principal proposta acerca da criacao de uma corte especial para questoes ambientais, verificando-se os pontos fortes e deficiencias dessa sugestao. Conclui-se que, ainda que as cortes ja existentes tenham algumas limitacoes para lidar com litigios que envolvam questoes ambientais, a criacao de um tribunal internacional para o meio ambiente nao e uma proposta que encontra respaldo na praxis internacional.

The Appellate Body (AB) of the World Trade Organization (WTO) is currently under the concrete threat of ceasing its activities in the near future. This is the result of a series of unaddressed criticisms by some of the members of the organization, in particular the United States, regarding the alleged activist role that the AB has played. These criticisms involve a number of issues regarding interpretative practices developed by the organ. Against this backdrop, the present paper tackles the use of “relevant rules of international law” which are external to the WTO covered agreements, in particular through Article 31(3)(c) of the Vienna Convention on the Law of the Treaties, the provision codifying the so-called “principle of systemic integration”. It studies the reports in which reference to this provision was made and whether the use of non-WTO rules has been made in an expansive or limited way with respect to the mandate of the AB. It also assesses the reception of these reports by the WTO membership in the meetings of the Dispute Settlement Body. It is concluded that, while recourse to external sources under the VCLT provision could represent a potential source of expansion of the AB material applicable law in a way that could displease the WTO membership, the AB has transitioned from a progressive approach which marked the beginning of its functioning to a more narrow approach to the applicability of non-WTO sources in the more recent caselaw.

http://dx.doi.org/10.5007/2177-7055.2016v37n73p193The present paper analyses the first traces of the debates on environmental issues in the context of the General Agreement on Tariffs and Trade (GATT), in the period that comprehends the negotiations of the charter of the intended International Trade Organization (ITO), 1947, until the end of the Tokyo Round, 1979. In order to assess this subject, this paper mainly refers to the texts of the agreements of the mentioned period and the documents produced during the negotiation rounds. The study of these three initial decades is relevant for a full grasp of the origins of a discussion that wouldgain strength in the subsequent years, and that rebounds until the present days. http://dx.doi.org/10.5007/2177-7055.2016v37n73p193O presente artigo tem por objetivo estudar os traços iniciais das discussões sobre questões ambientais no âmbito do Acordo Geral sobre Tarifas e Comércio (GATT), durante o período compreendido desde as negociações da pretendida carta da Organização Internacional do Comércio (ITO), em 1947, até o final da Rodada de Tóquio, em 1979. Para tanto, foram analisados principalmente os textos dos acordos da época e os documentos produzidos nas rodadas de negociação. O estudo desse período mostra-se relevante por esboçar as origens de uma discussão que viria a ganhar força nos anos subsequentes, repercutindo até os dias atuais.

In a scenario of intensification of interstate relations, along with the increasing number of international rules and tribunals, the discussion over the so-called self-contained regimes, uniquely specialized, and their relation with other norms of general international law grows along. The scope of this paper is to analyze the position of the World Trade Organization (WTO) within this context, and proposes the question of whether said institution can be considered to be a self-contained regime. To that end, this work initially brings the scholar concepts of the idea of a self-contained regime , so as to verify if it is possible, according to these doctrinal studies, to consider WTO law as such. After this first section, the relevant legal provisions of the WTO treaties will be brought about. Finally, some contentious cases brought upon the dispute settlement system of the institution will be studied, in order to aid investigating proposed problem. Thus, this work verifies the existence of an interaction of WTO law with general public international law and, therefore, concludes that the organization is not a completely isolated and autonomous regime.