Developing Countries, Countermeasures and WTO Law: Reinterpreting the DSU against the Background of International Law

Developing-country Members’ discontent with the World Trade Organization (WTO) Dispute Settlement Understanding (DSU) enforcement mechanism, perceived as biased in favour of the organisation’s ‘big players’, has been a dominant theme in the negotiating process on the reform of the DSU. In particular, developing countries maintain that the present mechanism is structurally incapable of inducing compliance with the recommendations and rulings of the DSB, when the losing party is a developed country, unimpressed by the prospects of retaliation. The reform proposals set forth by developing countries – sometimes qualified as too ambitious, ‘maximalist’ or radical – not only have failed to gather the necessary consensus to make their way into the negotiating process, but they have also met with scepticism 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. In fact, most of these proposals intersect certain areas of WTO law the interpretation of which is still unsettled or highly controversial. This paper provocatively submits that an interpretation of the extant texts against the background of public international law may open up new perspectives, which could be favourable to developing countries. In other words, many of the objectives pursued by developing countries could be achieved, short of any institutional reform and formal amendment, 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.