Outside restrictions

Why should treaty A impose restrictions on the ways in which treaty B may be enforced? There are at least two possible answers. The first is that certain types of action are simply deemed unacceptable. For example, the UN Charter places a general ban on the use of armed force except in self-defence. According to the International Court of Justice, this ban means that states may use force only in response to an armed attack. Thus, even in the (hypothetical) case where a state is faced with an imminent and potentially fatal threat resulting from a breach of an environmental agreement (such as the Kyoto Protocol), the state would not be entitled to use armed force (O'Connell, 1994, p4).

The second answer is that the enforcement of treaty B might be detrimental to the fulfilment of treaty A. For example, one of the fundamental principles of the GATT is the ban on discriminatory restrictions on trade. According to this principle, all members of the GATT are entitled to most favoured treatment. The use of trade sanctions against a country that has failed to honour its obligations under the Kyoto Protocol would potentially violate this rule.21 Thus, the GATT bans external enforcement via trade (unless one of the exception clauses applies).

Of course, we cannot automatically infer from the fact that treaty A places a ban on external enforcement of treaty B that such enforcement will not take place. A major focus of this book is to investigate the conditions under which the parties are likely to comply with the Kyoto Protocol. It goes without saying that for such an investigation to be of interest, it must be assumed that perfect compliance with the Kyoto Protocol cannot be taken for granted. It would then be a strange thing indeed to take it for granted that other treaties always obtain perfect compliance. This said, it is extremely unlikely that anyone would even consider the use of military force to enforce the Kyoto Protocol. It is less obvious, however, that the possibility of using trade sanctions will not be seen as an option either.

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