International trade law has always been about tariffs. Tariffs were on Woodrow Wilson’s mind when he delivered his famous Fourteen Points in 1918, proposing the removal of all economic barriers as one of the ingredients for peace. Tariffs, or, should we say, the removal of tariffs was at the heart of Cordell Hull’s vision for a post-World War II economic order, of James Meade’s Proposal for a Commercial Union, and of the multilateral negotiations that ultimately led to the conclusion of the GATT – the General Agreement on Tariffs and Trade. Tariffs are the “oldest and most familiar of all trade measures”. Today, however, we are witnessing a striking shift in how tariffs are being used. U.S. President Trump’s announcement of so-called ‘secondary tariffs’ on imports from India – imposed in response to India’s purchase of Russian oil and gas – marks a move away from the familiar use of tariffs as protectionist or revenue-raising tools. Nor do they resemble trade remedies. Rather, these measures seem to echo the way the United States has long used ‘secondary’ sanctions to shape the foreign policy of other States. Beyond their immediate WTO compatibility, such tariffs raise deeper questions regarding the spirit and adequacy of the international trade regime.
Why do countries adopt tariffs and why do we regulate them?
When President Wilson proposed the removal of economic barriers, import tariffs represented the main form of economic barrier that countries had been employing. And they were by no means new measures. Between 1815 and 1846, the United Kingdom had introduced the famous Corn Laws, which were nothing but a series of tariffs on imported food and grain. The UK was not an exception. Countries had been using tariffs for decades – on different products and at different levels, but often with the same purpose as the British Corn Laws: to raise revenues and protect domestic industries from foreign competition. At times and over the years, tariffs have also been employed in pursuit of broader non-trade policy goals. Yet, putting aside trade remedies, the most common purpose of tariffs has been domestic protection – or at least the appearance of it. It was protectionism that was singled out as a powerful trigger for tensions and war by those who helped build the foundations of the multilateral trading system. And it was protectionism that had to be avoided at all costs. The GATT itself was drafted with this idea in mind. Tariffs were not banned outright but were meant to be reduced and disciplined. Two core rules still define the system: countries cannot raise tariffs above agreed levels (Article II, ‘tariff bindings’), and they must apply them equally to all trading partners (Article I, the ‘most-favored-nation’ or MFN principle). As with most rules in international law, there are exceptions: Article XX for certain societal values (like health or the environment), and Article XXI for security concerns. These clauses were designed as safeguards, not loopholes, and were never intended to justify purely commercial or protectionist measures.
The ‘Trump Round’
Reintroducing tariffs has been at the heart of the new Trump Administration since the President’s inauguration on 20 January of this year. As a first step, in February, President Donald Trump unveiled the Fair and Reciprocal Trade Plan, a sweeping reform of U.S. trade policy intended to ‘rebalance’ what he described as a deeply unfair global trading system. Just weeks later, in his April 2 ‘Liberation Day’ address, he announced broad tariffs, including a general 10% duty on all imports, with higher rates targeting specific countries.
Since then, the Trump Administration has been engaging in intense bilateral negotiations with a number of countries and has continued imposing new tariffs. What we are witnessing is what United States Trade Representative (USTR) Jamieson Greer called the “Trump Round”. In an op-ed he published on 8 August in The New York Times, Greer states that these tariffs, as is also clear from the April 2 Executive Order, are aimed at addressing the national emergency posed by the trade deficit and that, by doing so, “the United States has laid the foundation for a new global trading order.”
Secondary tariffs – something else
The latest episode of the “Trump Round” took place on 6 August 2025, when President Trump announced a new import tariff on imports coming from India. The media has been calling it a ‘secondary tariff’, largely because the reasons for its imposition are unrelated to direct U.S. trade interests with India. The Executive Order that introduced the new tariff is titled “Addressing Threats to the United States by the Government of the Russian Federation”; and in fact the motivation behind imposing a new ad valorem tariff on imports from India is that “India is currently directly or indirectly importing Russian Federation oil.” The result is that, in addition to a 25% tariff that applies not just to India but also to other countries as part of the Trump Administration’s modification of U.S. tariff schedules, India will face an additional 25% tariff as retaliation for importing Russian oil and gas.
Trump’s secondary tariffs mark a clear departure from those announced on April 2. The April 2 tariffs themseves were already of a different nature when compared to ‘traditional’ tariffs, as they “do not hit a specific adversary, but virtually all places on earth.” Yet, they remain measures that are adopted for reasons that are ultimately of an economic nature, the overarching goal being “to strengthen the international economic position of the United States and protect American workers” (April 2 Executive Order).
Secondary tariffs, by contrast, represent a notable shift. They are completely disconnected from the U.S. economy and they are not used, as they traditionally are, as instruments to protect domestic industries. At the same time, they also differ from trade measures countries like the United States have been adopting for political reasons or in pursuit of non-trade policy goals. These measures, when they violate the GATT, can be (at least in principle) justified under Article XXI(b)(iii), which allows countries to restrict trade “in time of war or other emergency in international relations.” Analysis of the relevant cases, however, shows Parties acting under Article XXI(b)(iii) have been generally acting in retaliation for what they perceived to be illegal actions committed by the targeted State – often the illegal use of force. But the Trump Administration is not targeting the Russian Federation, but India, and not because it has been committing illegal acts that are threatening peace and security, but simply because of India’s foreign policy. It is therefore debatable whether the situation they are trying to address truly qualifies as an “emergency in international relations” and whether the measures are “necessary for the protection of its essential security interests.”
A new ‘tariff tool’ in the U.S, ‘sanctions toolbox’
The significance of Trump’s secondary tariffs goes beyond question of compatibility with WTO law. These tariffs depart from traditional ‘tariff logic’ as they do not target a specific country to protect the U.S. economy, nor do they target a country that is directly causing an emergency in international relations. And by doing so, they also represent a significant shift from the way in which the United States have been relying on tariffs or other trade measures to pursue political or foreign policy objectives. In 2022, for instance, former U.S. President Joe Biden had raised the tariff rate on certain Russian imports to 35% as a result of suspending Russia’s MFN status because of its war in Ukraine. And similar measures had been directed at other countries in response to actions that – according to the U.S. Administration – threatened international peace and security or violated international law. By contrast, these new tariffs are targeting a third country, India, based solely on its economic relations with Russia, the State that the U.S. administration considers the real threat to international peace and security. This represents a conceptual shift from the traditional use of tariffs, aligning more closely with the logic of U.S. secondary sanctions (see here and here), as if tariffs have been added to the administration’s ‘secondary sanctions toolbox.’
What is more – at least for the time being – the Trump Administration has been selective in introducing these new tariffs as it has only been targeting imports from India. And what about other countries that are importing Russian oil and gas? Brazil, for instance, is already preparing for additional punitive U.S. tariffs, having been among the largest purchasers of Russian diesel and fertilizer since the onset of the conflict in Ukraine. Targeting India while other countries are also importing oil and gas from Russia seems like a good example of unjustifiable and arbitrary discrimination. The GATT exceptions clauses require countries not to be discriminatory in the application of their trade-restrictive measures; and so do the rules that allow members to adopt ‘safeguard measures’ in situations of economic emergency. But President Trump’s ‘selective’ secondary tariffs against India do not seem to fit in any of these boxes.
More broadly, secondary tariffs fall outside the legal categories that currently structure the multilateral trading system. WTO rules were crafted with traditional protectionist or security-based measures in mind, not with tariffs aimed at steering the foreign policies of third countries. This shift presents many questions we may now need to start asking ourselves – about the limits of existing rules, their capacity to respond to new forms of state practice, and the implications for the stability of the global economic order.
