The EU’s Anti-coercion Instrument: A Return of Unlawful Unilateral Trade Countermeasures in Disguise?

Abstract

The European Union (EU) adopted an Anti-Coercion Instrument (ACI) to counter economic coercion and weaponization of economic dependencies. This article analyses the potential application and interaction of the EU’s ACI with the World Trade Organization’s (WTO’s) legal framework. In particular, the article examines the EU’s claim that the ACI is solely governed by general customary law, justifying countermeasures in response to unlawful economic coercion. A closer look reveals the legal complexities and challenges associated with implementing the ACI within the broader context of the WTO. Actions taken under the ACI that seek redress for WTO law violations could potentially be in violation of the WTO’s Dispute Settlement Understanding (DSU). Additionally, justifying a violation of WTO law based on the enforcement of general customary law on countermeasures is unlikely to be accepted. While it is difficult to evaluate the ACI’s application in theory, the article also questions the validity of public morals and national security as justifications for response measures under the ACI. The outcome of potential WTO litigation pertaining to the ACI is difficult to address in the abstract, yet future cases hold the potential to provide further clarity on the interplay between the WTO regime and general international law. Anti-Coercion Instrument, Open Strategic Autonomy, Economic Coercion, Countermeasures, WTO Dispute Settlement Mechanism