Introduction

General international law concepts and principles governing countermeasures are codified in the ILC Articles on State Responsibility. The WTO agreements establish a specific regime governing countermeasures, and the commentary to the ILC Articles on State Responsibility identifies the WTO dispute settlement system as an example of a lex specialis regime on countermeasures. While certain aspects of the relationship between the WTO regime of countermeasures and general international law may not be entirely clear, it is clear that at least some features of the WTO regime of countermeasures differ from general international law principles. At the same time, this has not prevented WTO adjudicators from applying and clarifying some key general international law concepts and principles relating to countermeasures in the context of interpreting and applying WTO provisions governing countermeasures. This chapter reviews WTO statements of wider applicability relating to three aspects of general international law: (i) the objects and limits of countermeasures; (ii) proportionality of countermeasures; and (iii) termination of countermeasures.

Object and limits of countermeasures

WTO adjudicators have considered the function of countermeasures in a number of cases, mostly in disputes regarding the permissible level of countermeasures under Article 22.6 of the DSU and/or Articles 4 and 7 of the SCM Agreement. In that context, adjudicators have considered the ILC Articles on State Responsibility, and in particular the guidance therein regarding the purpose of countermeasures. Article 49 of the ILC Articles on State Responsibility, entitled ‘Object and limits of countermeasures’, reads:

1. An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two.

2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.

3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.