Trade Countermeasures in Response to Breaches of Obligations outside the WTO

This article challenges an established view in WTO law that WTO Members cannot restrict trade against other WTO Members as a countermeasure against the latters’ breach of international law. It cautions that arguing that trade countermeasures are unavailable in response to breaches of non-WTO obligations has wider implications for international law and for multilateralism, because countermeasures are a significant (albeit not the only) means of enforcing and of preserving the normative integrity of international obligations outside the WTO, including erga omnes and erga omnes partes obligations. The alleged ‘displacement’ of trade countermeasures in response to breaches of non-WTO obligations disadvantages smaller States seeking to enforce their rights under international law and ‘break their silence’ concerning the erosion of fundamental rules of international law. Given these wider implications, arguments supporting their ‘displacement’ have to be based on clear evidence. This article shows this to be lacking. It also attempts to soothe 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 minimize the space for abuse and the risk of unpredictability