An Analysis On The Role Of Non-WTO Source Of International Law In The WTO Dispute Settlement Mechanism

This thesis mainly focuses on the status and role of non-WTO source of internationallaw in the WTO dispute settlement mechanism (DSM). As the basic procedural rulesapplicable for dispute settlement between WTO Members, the Understanding onRules and Procedures Governing the Settlement of Disputes (DSU) provides variousprocedures for the consultations, the good offices, conciliation and mediation, thepanel review, the appellate review and so on. However, DSU does not provide therules for the applicable law for the dispute settlement body (DSB). Is it available forDSB to apply non-WTO source of international law? And how does Article3.2ofDSU affect the application of non-WTO source of international law? Scholars atpresent have a controversy between the “incorporation theory” and the“self-contained theory”. The discussion on specific application of non-WTO source ofinternational law is based on the above theories.After discussing the applicability of non-WTO source of international law, the thesisfocuses on another important role: interpretive sources. Article3.2of DSU explicitlyrequires DSB to “clarify the existing provisions of those agreements in accordancewith customary rules of interpretation of public international law”. In consequence,these customary rules of interpretation inevitably relate to various non-WTO sources of international law and this thesis will elaborate the interpretive role of non-WTOsource of international law.This thesis comprises three chapters, counting as38,000words or so.Chapter1focuses on basic theoretical issues of non-WTO source of international law.This chapter comprises three sections. Section1defines the scope of non-WTOsource of international law; Section2clarifies the difference between application oflaw and interpretation of law from the perspective of the provisions of DSU; Section3introduces and comments on the “incorporation theory” and the “self-containedtheory”.Chapter2explores the applicability of non-WTO source of international law in DSM.The first section discusses the applicability of non-WTO treaties, including thosenon-WTO treaties which are incorporated by the covered agreements, and thosewhich are affirmed to be applied by the covered agreements, and other non-WTOtreaties; Section2talks about the applicability of international custom and generalprinciples of law.Chapter3analyses the interpretive role of non-WTO source of international law.Similar to the structure of Chapter2, the first section in this chapter also discussesabout the non-WTO treaties; Section2takes the principle of precautionary as anexample to introduce the interpretive role of international custom and generalprinciples of law; Section3briefly mentions the reference to the judicial precedentand Auctoritas prudentium.