Inside restrictions

An important reason why a treaty might seek to restrict the use of external enforcement is that such enforcement is considered to be detrimental to the regime's legitimacy. As Chayes and Chayes remind us, procedures for international enforcement ought to satisfy the same standards that apply to other law enforcement activities: 'The most fundamental of these standards are that like should be treated alike, that the crucial determinations should be made by basically fair procedures, and that all actors should be equal before the court' (Chayes and Chayes, 1995, p106). The Chayeses claim that unilateral sanctions are defective on all these counts. Their argument seems to be equally relevant for most cases of external sanctions. First, the legal issue is only one of many considerations for political leaders. Thus, legal considerations will typically be balanced against state interests, which are likely to vary from case to case and from country to country. It is therefore unlikely that unilateral sanctions will generally treat equivalent violations equally. Second, the decision to impose unilateral sanctions is made by the sanctioning government. To act as a judge in one's own case is a fundamental violation of due process of law. Third, unilateral sanctions are disproportionally used by major powers - notably the US - against economically and politically weaker counterparts. Hence, their exercise is likely to seem 'less like disinterested enforcement of common norms and more like the exertion of power in the interest of the stronger' (Chayes and Chayes, 1995, p108). Similarly, it has been pointed out that countermeasures are far more available to wealthy countries than to poor ones:

States holding assets to freeze or markets to close can do both as countermeasures. Poor states will often have few resources available for leverage. Even when resources are available, these states may need to be able to withstand counter-countermeasures to effectively use the countermeasure. Thus some see countermeasures as fundamentally unfair and therefore question their acceptability in a legal system. (O'Connell, 1994, p4)

We might add that external enforcement usually violates other criteria of due process as well. For example, there is usually no guarantee that the accused party has a right to have its case heard. Nor is it clear that punishment will be imposed only after guilt has been proven beyond reasonable doubt. And even if it is, the standards of reasonable doubt are likely to be determined unilaterally. Finally, due process usually requires that there is a possibility for appeal. This is not likely to exist in most cases of external enforcement.

A second potential motive to impose regulations on the use of external enforcement is that such enforcement is unlikely to provide fair compensation for damages. Granted, it is possible that agreement on compensation can be reached by external means. For example, WTO rules instruct the parties in a dispute to seek mutually acceptable terms of compensation, and only if the parties prove unable to reach agreement may the Dispute Settlement Body authorize retaliation. Similar rules are -in principle - conceivable within the climate regime, even though arrangements for compensation that are reached bilaterally will often reflect the parties' bargaining power more than impartial principles of fairness.

This said, however, it needs to be pointed out that in the case of the climate regime, internal arrangements for compensation are likely to see some serious problems as well. Compensation usually requires that it be possible to establish a causal link between acts of non-compliance and the injury suffered by others. While inferences of this kind are plausible in some instances,22 in the case of climate change there are potentially serious difficulties. First, it is almost impossible to determine whether a given instance of extreme weather is a random event or the result of global warming. Second, it is extremely difficult to distinguish between global warming from anthropogenic sources and natural climate change. Finally, man-made global warming is not attributable to any one state's activity. On the contrary, most states have only a minimal role in global emissions of greenhouse gases (GHGs). Together, these three facts make it unlikely that it is possible to establish a sufficient link of causation between GHG emissions from activities by particular states or companies on the one hand and direct injury to individual states on the other.23 It is therefore likely that an arrangement for compensation under the climate regime would have to take a more rudimentary form. For example, one might envision a system whereby a reduction in a non-compliant country's allowance is transferred to other parties in relation to their quotas.

While I believe that the above objections to external enforcement are basically valid, one should note that the norms of equal treatment, fair procedures and equality before the court are not always met by internal enforcement schemes either. For example, an objection to the GATT/WTO dispute settlement procedure is that it is generally difficult for weak states to implement sanctions against the US or other major powers, even if a prior consent from the Dispute Settlement Body has been granted (van Bael, 1988, pp71-2). Thus, much of Chayes and Chayes's criticism of unilateral sanctions seems to hold for collective enforcement as well, at least if the implementation of the punishment is decentralized. When the US refused to comply with the orders of the International Court of Justice (ICJ) in the Nicaragua Case in 1986, there was little Nicaragua could do to get the ICJ's orders enforced (O'Connell, 1994). That the willingness to enforce international law differs across countries can also be seen in some environmental regimes. While all governments that ratify MARPOL (International Convention for the Prevention of Pollution from Ships) Conventions are in principle responsible for enforcing the requirements of the conventions, statistics show that actual performance varies considerably. The flag state with the worst accident record suffers more than a hundred times more losses than the flag state having the best record. In particular, ships registered under flags of convenience are more likely to cause accidents and pollution, to be in poor condition, to have communication problems due to multilinguistic personnel, and to have inadequately trained and certified crews (Becker, 1998, p634).

Chayes and Chayes warn that the use of unilateral sanctions is likely to undermine a regime's legitimacy. This certainly seems like a plausible hypothesis, and again one that might be expected to be equally valid for many cases of external enforcement. Yet one might reasonably ask why external (or for that matter unilateral) enforcement should be more detrimental to regime legitimacy than the violations it seeks to address. To the extent that the risk of facing external sanctions serves as an effective deterrent, it prevents violations that would otherwise have taken place. Certainly, this should serve to strengthen the regime. The price to be paid is that whenever deterrence fails, external sanctions must be carried out in order to preserve credibility. This creates the effect that the Chayeses are so worried about. Nevertheless, we might reasonably assume that the extent to which an act of external enforcement tends to undermine a regime's legitimacy is likely to depend on whether the act itself corresponds with the dictates of international law.

External sanctions may be permitted under international law as 'countermea-sures'. To be acceptable, a countermeasure must meet certain conditions. First, it has to be necessary, in the sense that prior requests that the target state take the necessary steps to achieve compliance have proven ineffective. Second, the countermeasure must be proportionate to the unlawful act that it seeks to address. If taken literally, so that an act of non-compliance that produces a gain of US$10 million for the non-compliant state, for example, can only result in a penalty equivalent to (at most) the same amount, this requirement would render any lawful countermeasure ineffective as a deterrent. However, the condition of proportionality is probably more reasonably interpreted as saying that a countermeasure cannot be vastly out of proportion to the unlawful act that it seeks to address. While it is straightforward to give examples that would clearly violate this norm, it is difficult to say exactly where the line should be drawn.24 A third condition for the lawfulness of a countermeasure, referred to in passing by the ICJ in 19 9 7 , 25 is that its purpose 'must be to induce the wrongdoing state to comply with its obligations under international law, and that the measure must therefore be reversible' (cited in Crawford, 2000, pp3-4). This condition means that permanent measures cannot qualify as countermeasures.26

To the extent that the above conditions of necessity and proportionality are satisfied, external enforcement is consistent with the dictates of international law.27 If the relevant regime itself is incapable of ensuring compliance, it is difficult to see why external enforcement should then necessarily weaken the legitimacy of the regime.

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