¹ Art. 22, International Law Commission’s Articles on State Responsibility.

² Arts. 42 & 49, International Law Commission’s Articles on State Responsibility.

³ Annex to the WTO Agreement, Apr. 15, 1994, 1867 UNTS 187.

⁴ Article 23.1, Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex to the WTO Agreement, Apr. 15, 1994, 1869 UNTS 401 [hereinafter DSU] provides for the compulsory jurisdiction of the WTO dispute settlement system, and has been interpreted as establishing exclusive jurisdiction. See US—Section 301 Trade Act, WTO Doc. WT/DS152/R, para. 7.43 (2000).

⁵ See Rights of Minorities in Upper Silesia (Minority Schools) (Ger. v. Pol.), 1928 PCIJ (Ser. A.) No. 15, at 23 (holding that consent-based jurisdiction “only becomes inoperative in those exceptional cases in which the dispute which States might desire to refer to the Court would fall within the exclusive jurisdiction reserved to some other authority”). See also Mox Plant Case (IR. v. U.K.), Order No. 3, Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, para. 28, Perm. Ct. Arb. (June 24, 2003) (explaining its decision to suspend proceedings pending the European Court of Justice’s determination as to whether the ECJ had exclusive jurisdiction to hear the dispute, in part on the basis of “considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States”).

⁶ Mexico—Tax Measures on Soft Drinks, WTO Doc. WT/DS/308/AB/R, para. 53 (2006).

⁷ See Pauwelyn, Joost, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law 232 (2003)Google Scholar.

⁸ DSU, Art. 3(7). See also DSU, Art.19(1) (providing that “[w]here a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement”).

⁹ Mexico—Tax Measures on Soft Drinks, supra note 6, paras. 56 & 78.

¹⁰ EC-Asbestos, WTO Doc. WT/DS135/AB/R (2001). This means that the Article Xx exceptions are not ones which can be used as a substitute for the wrongfulness preclusion power of countermeasures within the WTO system, because trade measures which respond to a breach of an obligation under general international law would be too indirect either to satisfy the necessity requirement or to come within the ambit of the particular exceptions listed in Article XX.

¹¹ In Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, 141-42 (June 27), the Court used the wording of Article Xxi of the Gatt 1947 as an illustration of a self-judging security exception, in contrast to the security exception in the U.S.-Nicaragua Treaty of Friendship, Commerce and Navigation, Jan. 21, 1956, 367 U.N.T.S. 3, which also contains the objective formulation of necessity used in Article XX of the Gatt.

¹² Commentary to Art. 51, International Law Commission’s Articles on State Responsibility, paras. 6-7.

¹³ See Commentary to Art. 25, International Law Commission’s Articles on State Responsibility.