CYIL vol. 8 (2017)

KATARÍNA CHOVANCOVÁ

CYIL 8 ȍ2017Ȏ

3.

Countermeasures within the WTO Implementation System /Playing the Tune till It Sounds Right/

Customary international law has been given a special status within the WTO DSM via Article 3.2. of the DSU, which stipulates that one of its goals is to clarify provisions of the establishing WTO Agreement “ in accordance with customary rules of interpretation of public international law .” 100 As indicated in the introduction to this article, the countermeasures’ mechanism, sophisticated and internally compartmentalized within the realm of the WTO implementation system, being one of the most important features of the WTO DSM, 101 is quite a different beast to keep when compared with the oblique use of the countermeasures in investment arbitration. Generally, the WTO countermeasures operate as a form of retaliation inside the brackets of the special WTO DSM, applicable within the distinct legal regime with its nuts and bolts embedded in the WTO DSU, which is supervised by the WTO Dispute Settlement Body (“the DSB”) as the highest political authority in the WTO pyramidal structure. Due to their exclusivity of being the last resort to induce a non-complying WTO member into second order compliance with its WTO obligations, and an application being subordinated to authorization and the review of the WTO DSB, the WTO countermeasures certainly may be handpicked as a good example of countermeasures’ reliability within the whole WTO legal setting (though to little avail for the developing countries), 102 but definitely not seamlessly in another setting, as “ they cannot be used as demonstrative of the success of the broad ILC doctrine.” 103 Furthermore, WTO retaliation (with countermeasures included) is nowadays a minefield, as it is classified as having a dual internal constitution. Its first and more often applied category has been suspension of concessions, authorized under Article 22 DSU, which used to be casually taken for countermeasures in principal legal writings. 104 Its primary purpose has always been to induce compliance, but restoring the balance of benefits under the WTO Agreements between disputing parties was also suggested as the purpose of the suspension of concessions in several cases. 105 Temporary suspension of concessions comes to play in all cases, in which the author of an illegal act has failed to bring its contradicting measures 106 into compliance with its WTO obligations, and the complaining party, wishing to retaliate, may request the DSB to authorize suspension of concessions or other WTO obligations. According to Article 22. 4 DSU, the strength of the legal constraint has been expressed in the level of authorized suspension of 100 See more on the role of CIL in the WTO legal system in MAVROIDIS, P. C., No Outsourcing of Law? WTO Law as Practiced by WTO Courts, The American Journal of International Law , 2008, Vol. 102, pp. 436-439. 101 ABE, J., Implementation System of the WTO Dispute Settlement Body, op. cit ., p. 8. 102 SHRAIDEH A. S., Testing WTO Retaliation: Is it Really Working for All?, International Trade & Business Law Review , 2015, Vol. 18, pp. 97-117. 103 FITZGERALD, E., Helping States Help Themselves, op. cit ., p. 77. 104 E.g. PAUWELYN, J., Enforcement and Countermeasures in the WTO: Rules are Rules – Toward a More Collective Approach, The American Journal of International Law , 2000, Vol. 94, p. 337, MATSUSHITA, M., SCHOENBAUM, T. J., MAVROIDIS, P. C., The World Trade Organization. Law, Practice, and Policy, Oxford University Press, Oxford, 2006, p. 143. 105 Decision by the Arbitrators, United States – Anti-Dumping Act of 1916 – Recourse to Arbitration by the United States under Article 22.6, para. 5.4-5.5, p. 13., WT/DS 136/ARB (Feb.24, 2004). 106 Ibid, p. 165.

474