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However, on a more positive note for the countermeasures doctrine, this book argues that when analyzing the applicability of and compliance with WTO rules, WTO panels have to take into consideration whether a violation of obligations under WTO-covered agreements can be justified with reference to the countermeasures doctrine.
(E) Final Remarks
The most favorable legal environment for the countermeasures doctrine is where the substantive international obligation is clear, but effective remedies are scarce. The international legal system, however, contains a much broader spectrum of scenarios. On one side is the situation when the substantive obligation is lacking, and countermeasures are, therefore, not the appropriate remedy because the primary element of countermeasures, that is, the presence of prior violation of an international obligation, is absent. As some of the case studies in part III show, this is often the case within the environmental regime. On the other side is when the substantive rule is clear and the regime provides an effective remedy. Then, unilateral acts justified as countermeasures might not be legally acceptable. Such is the situation within the European Union (EU) with regard to violations of EU law7 and, to a certain extent, the WTO.8 Countermeasures exist in the space in between these two edges, where the international community has agreed on, positively or passively, certain primary obligations without providing the necessary effective remedies.
The legal requirements for countermeasures need to be approached with due respect; they are not to be taken lightly or referred to simply as nonbinding guidelines. One must remember that frustration, emotion, domestic politics, sovereign identity, and the need to show resolve are all a recipe for unlawful countermeasures and are also, often, the underlying cause for such measures. As such conditions often precede the taking of countermeasure, the overall situation might not represent the injured state’s finest hour.