WTO Dispute Settlement and Trade Sanctions as Permissible Third-Party Countermeasures under Customary International Law

Abstract

The requirements for invoking WTO security exceptions as expounded in recent WTO dispute settlement cases are notably stricter than previously thought by WTO members. Consequently, not all WTO members who have imposed trade sanctions against Russia will be able to invoke these exceptions to justify their actions when accused by Russia of violations of their WTO obligations. This article considers whether WTO members who may be unsuccessful in invoking security exceptions may nonetheless be able to justify their measures within the context of WTO dispute settlement under the customary international law on third-party countermeasures. It does so by exploring the scope of the relevant provisions within the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) as well as competence of WTO adjudicative bodies (i.e., WTO panels and the Appellate Body) to look beyond the four corners of the WTO covered agreements.