The cons of external enforcement

The title of this chapter, as well as the subtitle of this section, suggests that external enforcement is something that the parties to an international agreement can potentially rid themselves of, if they so choose. Indeed, it might be argued that the provision of an internal enforcement mechanism can also be understood as an understanding to abstain from external enforcement.

While this view might have some intuitive appeal, in practice it is extremely difficult to eliminate the option of external enforcement. As illustrated by the case of the US steel tax, it may be almost impossible to verify that a given external measure, although undisputedly detrimental to a party that has been accused of non-compliance, has been imposed for that particular purpose. It is not hard to envision cases where the non-compliant party knows exactly what is going on, but finds itself unable to prove it in front of an international dispute settlement body.20

What is feasible, however, is to impose regulations with a view to making external enforcement more difficult or costly than it would be in the absence of such inhibitory regulation. Two types of regulation are conceivable. First, institutions or agreements outside the climate regime might include provisions that restrict the parties' freedom to enforce the Kyoto Protocol externally. Second, strictures on the use of external enforcement might be provided by the climate regime itself.

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