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Trade Countermeasures in Response to Breaches of Obligations outside the WTO

Azaria, D; (2022) Trade Countermeasures in Response to Breaches of Obligations outside the WTO. International and Comparative Law Quarterly (In press). Green open access

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Abstract

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.

Type: Article
Title: Trade Countermeasures in Response to Breaches of Obligations outside the WTO
Open access status: An open access version is available from UCL Discovery
Language: English
Additional information: This version is the author accepted manuscript. For information on re-use, please refer to the publisher's terms and conditions.
Keywords: countermeasures, WTO law, silence, public international law, security exceptions.
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10138827
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