TRADE COUNTERMEASURES FOR BREACHES OF INTERNATIONAL LAW OUTSIDE THE WTO

Abstract This article challenges the widely held view that WTO Members are not permitted to impose trade restrictions on other WTO Members in the form of countermeasures for breaches of international law. It cautions that this generally held view has wider implications for international law and multilateralism because countermeasures are a significant means of enforcing and preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. Arguments supporting their ‘displacement’ must be based on clear evidence, which this article shows to be lacking. This article also attempts to allay the (understandable but perhaps exaggerated) concern that such countermeasures might undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under customary international law and to judicial scrutiny by means of WTO adjudication, both of which minimise the space for abuse and the risk of unpredictability.