Purpose and plan

A number of scholars have pointed out that the level of compliance with international agreements in general, and international environmental agreements in particular, is largely quite good (Henkin, 1979; Brown Weiss and Jacobsson, 1999; Chayes and Chayes, 1993; 1995; Jacobsson and Brown Weiss, 1998). There are a number of potential explanations for this. According to one major view, states simply do not make decisions about compliance on the basis of a calculation of advantage. Instead, compliance is largely determined by factors such as standard operating procedures, internalized identities, norms of appropriate behaviour, domestic linkages and the perceived legitimacy of the relevant rules (Alter, 1998; Chayes and Chayes, 1993; 1995; Checkel, 2001; Franck, 1990; Mattli and Slaughter, 1998).

By contrast, a second view is that many international agreements do not require the parties to do much more than they would have done anyway, and states tend to adopt only regulations that are expected to achieve high levels of compliance. In short, states comply because there is little to be gained by non-compliance (Downs et al, 1996).

A third possible explanation relates international compliance to external enforcement. Consider the following statement by Canada's top negotiator at the 2001 climate meeting in Marrakesh: 'The matter [of a legally binding compliance mechanism for the Kyoto Protocol] is largely symbolic. Even if countries don't face sanctions, countries that signed on to the accord but did not abide by its rules would face pressure from other signatories'.2 This statement suggests that the Canadian government was expecting the enforcement mechanism agreed upon in Marrakesh to have only marginal influence on compliance with the Kyoto Protocol, because in any case non-compliant behaviour would likely trigger external responses.

The purpose of this chapter is to review the strengths and weaknesses of external enforcement, and to discuss whether external enforcement has - or can have - distinct advantages over internal compliance mechanisms. Basically, I ask two questions. First, to what extent can it be useful to let external means of enforcement supplement an international agreement's internal compliance mechanism? Second, are there good reasons to restrict the use of external enforcement? Throughout, the argument is illustrated with examples from the Marrakesh Accords and other international agreements.

Although the possible impact of external enforcement has received surprisingly little attention in the compliance literature, at least three strands of relevant work may be identified. First, within the international law literature a number of authors have focused on countermeasures (e.g. Crawford, 2000; Kelly, 1998; O'Connell, 1994). For obvious reasons, however, this literature is mainly concerned with legal issues (such as the conditions under which countermeasures are permitted by international law), not the effectiveness of countermeasures in obtaining compliance. Also, there is only a partial overlap between the concept of countermeasures and that of external enforcement (see below). A second tradition analyses so-called unilateral sanctions (e.g. Chayes and Chayes, 1995, Chapter 4). While these authors focus at least partly on effectiveness, again the overlap with external enforcement is less than perfect. Finally, some work - starting with Schelling (1960; 1966) - either analyses how specific types of external enforcement can lend credibility to international agreements (e.g. Yarbrough and Yarbrough, 1986), or reviews a broader set of external enforcement techniques (e.g. Hovi, 1998, Chapter 7). However, this literature does not explicitly address the relative merits of external and internal enforcement.

This chapter proceeds as follows. The next section reminds the reader of what an international compliance system should ideally achieve. This is followed by a definition of the concept of external enforcement. The external-internal distinction is then related to two similar but not identical distinctions - namely collective versus unilateral enforcement, and centralized versus decentralized enforcement. This discussion provides a basis for the remaining parts of the chapter, which offer a treatment on the advantages and disadvantages of external enforcement.

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