COLLECTIVE COUNTERMEASURES AND THE WTO DISPUTE SETTLEMENT: ‘SOLIDARITY MEASURES REVISITED’

Abstract

In the ten years of the existence of the World Trade Organization (WTO) dispute settlement system, eighty cases have led to the adoption of the Panel Reports and sixty-one to the adoption of the Appellate Body (AB) Reports. Among these cases, the enforcement mechanism of last resortcountermeasure has been resorted to eight times. The eight cases include, EC – Bananas (US), EC – Bananas (Ecuador),1 EC – Hormones (US, Canada),2 Brazil – Aircraft,3 FSC,4 Canada – Aircraft II,5 US – 1916 Act,6 and the ”Byrd Amendment”.7 This number is almost four times more than those under the forty-seven year life-span of the WTO’s predecessor-the General Agreement on Tariffs and Trade (GATT) 1947. On the other hand, there are also cases where compliance with the dispute settlement reports has been contested.8 The relatively frequent recourse to countermeasures and the disagreement with the level of compliance presumably suggest that the present enforcement regime of the WTO Dispute Settlement Body (DSB) reports seems to be arduous.9 We therefore contend in this writing that the weakness of countermeasures is not because countermeasures by nature cannot induce compliance, but because the WTO countermeasures are not coercive enough to induce compliance. The traditional international law counter-measures (which may be collective) were codified by the International Law Commission (ILC) on the Responsibility of States for Internationally Wrongful Act in 2001 and are presumably applicable to all fields of international law where there arises a question of state responsibility, except there is a derogation provided for by a particular regime. Classical treaty law also considers a material breach of a multilateral treaty by one party as a sufficient ground for the suspension in part or in whole of the operation of the treaty by other parties to the treaty.10 Neither the panel nor the Appellate Body (AB) has really considered addressing these issues in its rulings and recommendations since the establishment of the WTO; though a number of academic writings and dispute settlement reports suggest that the WTO regime should not be conceived as an isolated field of international law. The following section of this paper examines from a more general perspective the use of collective remedies under international law. The third section of the paper presents the debate on collective countermeasures developed in the ILC’s draft Articles. This, we will call solidarity measures.11 By using past panels and AB jurisprudence, section four sets forth arguments in support of the view that acceding to the WTO engages the State so doing to a multilateral engagement, which may be invoked by any WTO Member at any time in case of a breach. Section five makes the case for solidarity measures in the WTO dispute settlement, while section six deals with the conclusions.