Regime Failure e contromisure unilaterali : la modifica dell'Enforcement Regulation dell’Unione Europea

The European Union has recently strengthened its legal tools to react against measures adopted by third States in breach of their obligations under international trade agreements. In particular, the amendments to the so-called enforcement regulation which entered into force in February 2021 allow the European Commission to adopt countermeasures against a State which fails to cooperate in the functioning of the dispute settlement mechanisms established under the Dispute Settlement Understanding of the World Trade Organization or under any bilateral trade agreement concluded with the European Union. However, any potential EU countermeasures adopted according to these new rules would be likewise unlawful under international trade law. Against this background, the present contribution develops three strands of analysis: first, a critical appraisal of the legal justification invoked by the European Commission on the basis of the 2001 Draft Articles of the International Law Commission on the Responsibility of States for Internationally Wrongful Acts; second, the legitimacy of EU countermeasures as a reaction against the violation by the State concerned of the principle of good faith in the peaceful settlement of disputes; finally, the suggestion that EU self-help actions could be deemed lawful according to the regime failure doctrine.