Developing Countries, Countermeasures and WTO Law: Reinterpreting the DSU against the Background of International Law
Developing countries maintain that the present World Trade Organization (WTO) Dispute Settlement Understanding (DSU) enforcement mechanism is structurally incapable of inducing compliance with the recommendations and rulings of the Dispute Settlement Body when the losing party is a developed country. Yet the reform proposals set forth by developing countries not only have failed to gather the necessary consensus, but they have also met with skepticism in academic circles due to their excessive reliance on enhanced and collective countermeasures as a means to redress the imbalances of the WTO enforcement process, and most of these proposals intersect certain areas of WTO law which still have unsettled or highly controversial interpretations. This paper submits that an interpretation of the present texts against the background of public international law may open up new perspectives which could be very favourable to developing countries. Many of the objectives pursued by developing countries could be achieved by interpreting the relevant provisions of the DSU in good faith and in accordance with the ordinary meaning to be given to the terms of the WTO Agreement ‘in their context and in the light of its object and purpose’, as provided by Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT).