22(6), WT/DS26/ARB, 12 July 1999, at para 42, emphasis in the original. 22(6), circulated on 9 Apr. In its dictum on the Barcelona Traction case, the International Court of Justice, as the primary judicial organ of the United Nations, gave rise to the concept of erga omnes obligations in international law. [Latin: towards all](in international law) Obligations in whose fulfilment all states have a legal interest because their subject matter is of importance to the international community as a whole. Uruguay v. 15 Developed Countries. In the era of globalization, certain violations may have an impact on the legally protected interests of most or even all WTO Members. 42; EC – Customs Classification of Certain Computer Equipment, 5 June 1998, WT/DS62/AB/R, Appellate Body Report, at paras 88 ff. Nonetheless, the Contracting Parties decided to extend the consequences typical of indivisible obligations to obligations relating to prohibited subsidies. EC – Measures concerning Meat and Meat Products (Hormones), Art. 173, the Appellate Body noted that ‘preference-granting countries are required ... to ensure that identical treatment is available to all similarly-situated GSP beneficiaries, that is, to all GSP beneficiaries that have the “development, financial and trade needs” to which the treatment in question is intended to respond’. Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, 18 Jan. 1999, at para.
In WTO law, such a choice has been the exception rather than the rule.
Relying on Permanent Court of International Justice (PCIJ) and ICJ case law,68 the EC requested the panel to decline to rule on the issue with respect to the US’s complaint for lack of legal interest.
It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. In a leading case decided in 1962, the panel maintained that ‘there is normally a presumption that a breach of the rules has an adverse impact on other Members ... and in such cases, it shall be up to the Member against whom the complaints has been brought to rebut the charge’.50 In 1987, however, another panel noted that there was in the history of GATT not a single case in which a Member had successfully rebutted such a presumption. As a matter of fact, a state could reserve to like products or directly competing or substitutable products imported from certain countries treatment identical to that of domestic like products, while imposing less favourable treatment on those produced in other countries. 0521856671 - Enforcing Obligations Erga Omnes in International Law Christian J. Tams Frontmatter.
Statement at the DSB meeting of 7 May 2003, Item 2. 2004, at para. Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, Panel Report, 17 Nov. 2000, WT/DS156/R, at paras 8.105 ff. 6.105, the panel observed that it was up to the respondent ‘to show that the failure to determine an individual dumping margin has not nullified or impaired benefits accruing to the EC under the Agreement’. The respondent can challenge such a presumption and, if the challenge is successful, then adjudication is precluded. In Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion [1951] ICJ Rep 15, at 23, the ICJ observed that ‘contracting States do not have any interest of their own; they merely have, one and all, a common interest, namely in the accomplishment of those high purposes which are the raison d’être of the convention’.
As a rule, counter-measures must be proportionate or equivalent to the nullification or impairment of the benefits of the complainant. 14.145. In Wimbledon, PCiJ, Ser. Recourse to Art. Article 3(8) of the DSU definitively put the presumption on the right track.
J.H. This clearly remains the exception.
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. These obligations can be disregarded in respect of some, but not necessarily all, of the Members allegedly involved in dumping or subsidy.
Sicilianos (eds), Economic Sanctions in International Law (2004), at 445 ff. In Guatemala – Cement, for instance, the panel examined and rejected the argument advanced by Guatemala that the alleged violation did not nullify and impair benefits accruing to Mexico.59 In Turkey – Textiles, the panel observed that Turkey did not provide it with ‘sufficient information to set aside the presumption that the introduction of these import restrictions ... has nullified and impaired the benefits accruing to India under GATT/WTO’.60 The adverse trade impact does not necessarily imply a decline in the volume of international trade of the state concerned. The task is performed by the arbitrators as provided for by Article 22(6) of the DSU. In order to assess the level of nullification or impairment for the purpose of assessing whether counter-measures are appropriate, arbitrators may adopt a counterfactual approach.92 They estimate the volume of trade that the complaining Member would have attained had the respondent complied with the recommendations and ruling promptly or within the reasonable period,93 and then compare it with the actual volume of trade achieved.
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