The Legal Nature of WTO Obligations and the Consequences of Their Violation
Posted: 29 Feb 2008
Date Written: September 2006
The obligations deriving from participation in the World Trade Organization are never inherently indivisible or erga omnes in the sense elaborated by the International Court of Justice in the field of human rights. As a rule, remedies for violations of WTO obligations remain available only to the Member(s) whose international trade interests have been affected, in actual or potential terms. Nonetheless, contracting parties have decided to extend to a limited number of WTO obligations the legal regime of indivisible obligation and to consider immaterial for the purpose of resorting to the dispute settlement system the effects of their violations. WTO obligations, therefore, are not a monolithic bloc. They may be divided into two categories which are governed by different rules as far as legal standing and counter-measures are concerned. Depending on whether the obligation allegedly breached belongs to one or the other category, the nullification or impairment of benefits is presumed - but can be challenged - under Article 3(8) of the DSU or is entirely irrelevant. Furthermore, countermeasures are normally proportionate or equivalent to the nullification or impairment of the benefits of the complainant. In the case of WTO obligations treated as indivisible obligations, however, the effects of the violation are immaterial and the trade interests of the complainant may well be unaffected. As a result, counter-measures are to be permitted to the extent that they will effectively ensure compliance. Special problems may finally arise in the case of multiple applicants, especially when the countermeasures are authorized at different times.
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