Compliance is the test of the efficacy of international agreements. Do countries simply act in their own best interests or is their behavior influenced by the existence of international laws? There seems to be a growing convergence of opinion on the notion that international laws and agreements have some impact on states' behavior, but there is enough non-compliance to cause us to seek ways of improving the pattern of compliance. Most people think the obvious way to do this is to give teeth to international agreements by specifying sanctions to deter violations and induce compliance. By sanctions, we generally mean strong, coercive measures.

But such strong measures are substantially unavailable as methods of enforcement in the international system. Military force is inappropriate except in the case of the most egregious violations of basic international norms. In fact, unilateral military action is outlawed under the United Nations (UN) charter, except in the case of self-defense against armed at tack. Multilateral sanctions are only permitted when authorized by the Security Council, which happened only twice between 1945 and 1992, in the cases of Korea and Iraq. So military force is not appropriate as a means of enforcement.

Multilateral economic sanctions, on the other hand, are sometimes available and appropriate, but have not been widely effective. Economic sanctions may have helped somewhat, over a period of twenty years, to bring an end to apartheid in South Africa. Such sanctions may have some effect, but in all current cases, remain fairly weak as a means of enforcement. Sanctions often create a backlash against the world community by the population of the sanctioned country. Further, economic sanctions often hurt the wrong people: the poor rather than the leadership. Unilateral sanctions are not very effective as no one market, no matter how large, can cause a great enough impact. In addition, the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) make most unilateral economic sanctions illegal, so a country would be guilty of using an illegal means to punish an illegal act. In sum, sanctions are generally not available to enforce international agreements. So how can we induce compliance under the constraint that strong, coercive measures are substantially unavailable?

Chayes contends that the coercive element in any legal system is really much smaller than we commonly assume. The force and obligation of law carries its own power, which is not dependent on coercive measures. A system that actually depends on coercive force is known as a tyranny, and is not the kind of system we would desire. There are some penalties we can apply, short of sanctions, that can be somewhat effective in inducing compliance. There is a strong social component in defining an acceptable level of compliance. For example, it is generally assumed that it is acceptable to drive up to ten miles per hour faster than the posted speed limit. In the international legal system, there are similar gray areas within which the question of violation is a question of subjective judgment. The acceptable level of compliance is set by the community of states which are all subject to the same process.

The conception of compliance is more complex and ambiguous than is generally recognized. There are clear examples, such as Iraq invading Kuwait, and North Korea developing an atomic weapons program, of states acting deliberately to violate international norms, but these cases are rare. Most deviant behavior in the international system does not result from intentional actions to violate international law. First, there is ignorance. Governments are often not aware, at the level at which the action is taken, of the existence of the international norm they are violating. One way of dealing with this problem is increased transparency: offering more information to the actors about the norm and about what other players are doing to remain in compliance. For example, Chayes says, we place more emphasis on lines on the road and instructional signs to provide information to drivers about what behavior is expected than we do on enforcement by police.

A second source of deviance is lack of capacity do the governments that undertake certain obligations have the capacity to carry them out? Can the government control emissions of CFCs or greenhouse gases, for example? In these cases, the state is used as a vehicle to access the behavior of individuals. Regulatory agreements often deal with deep patterns of individual and corporate behavior, and so are very difficult to enforce. A third source of non-compliance is ambiguity in the law. A fourth is that states often have other priorities that take precedence over the norm in question. Incentives, subsidies and inducements can sometimes be used to help change these priorities. A fifth source of deviant behavior is that it takes time to move toward compliance. Phase-ins and "grandfather" clauses can be used to address this. Such measures result in a process of moving toward compliance.

Measures to induce compliance may be more effective if the objective is not to assign blame or punish, but rather to improve performance. Participants are under an obligation to justify their conduct in light of their commitment. There is an implicit linkage to other issues in the regime and to issues in other parts of the legal system. There is evidence that reviews of compliance generate pressure for change in government policies because nations operate in a dense social and institutional context. Membership in good standing in the world community is essential for states to reach other goals that are important to them. This is their principal incentive for compliance.

Reporting, Review and Assessment

Reporting, review and assessment provide a performance-based way of looking at compliance. Such a process has some significant antecedents, for example, the Organization for Economic Cooperation and Development's (OECD) environmental policy review. This review asks, among other things, how well nations are fulfilling their international commitments on environmental policy. Countries are reviewed every two years. The first two or three reviews are very gentle and then the intensity of the review is ratcheted up. Such international processes can also help players to accomplish their goals in the domestic arena.

Another such process is the informal trade policy review mechanism established under GATT and taken over in full by the WTO. In this process, the U. S. and the European Union countries are reviewed every two years, while other countries are reviewed less frequently, thus concentrating on the countries that have the most effect on the global economic system. The process begins with self-study by the country up for review. In cases where there is a capacity problem, the country may be provided with help. One method of providing help is placing trained personnel in the relevant ministries of countries with capacity problems. After each country's internal review, the secretariat makes a study (in OECD cases, an independent study) based on background information. The secretariat makes comments and gives the country under review a chance to modify its report. The report is then forwarded to a committee of representatives of the parties.

The secretariat defines the most important compliance issues. The main critique is by government representatives with a significant understanding of the issue and staff to brief and prepare them. The purpose of this process is simply to make each country's plan better; there is no blame involved. The final step is some form of memorialization (the level of documentation varies). Memorialization usually takes the form of the chairman's summary of the discussion. These final reports do not contain formal or legally binding commitments. In future reviews, performance is measured against what the country said the last time it was reviewed, and what they have done since that time. This is not so much an incremental approach to an objective standard as it is a continuing bargain, with the terms of the bargain changing as the undertaking gets more specific.

A detailed study of the reporting, review and assessment process is needed at many levels. States are increasingly aware of the power of this process and for this very reason, there is some resistance to it. The Framework Convention on Climate Change (FCCC) has en countered some of this resistance. The current FCCC treaty obligation is to "communicate" certain information to the conference of the parties (CoP) for review, but this language obscures the question of whether compliance is to be reviewed country by country or just generally. The term "report" would imply a more formal process than the term "communicate." This issue arises again in the implementation stage of the treaty. The direction seems to be toward a significant reporting and assessment process, but some countries are worried about this. It is precisely because this process is powerful that many countries are concerned about it.

Language in Article 7 E says that the CoP will "assess on the basis of all the information made available to it ... the overall effect" of steps taken to comply with the agreement. Reporting requirements for Annex 1 (i. e., industrialized) countries are fairly elaborate. They are to report on "policies, programs, and measures undertaken with the aim of reducing emission of greenhouse gases (GHGs) to 1990 levels by the end of the century." In addition, they are asked to report on current GHG inventories and projections for future emissions of all GHGs. Less developed countries have fewer reporting requirements but in order to secure funds from the Global Environment Facility's (GEF) Climate Fund, they will have to report in some detail. The GEF has $3 billion over the next three years allocated to high priority areas, one of which is climate.

The OECD and the Intergovernmental Panel on Climate Change (IPCC) developed very elaborate standards for Annex 1 country reporting. Guidelines for making reporting comparable were adopted four months before the CoP meeting in Berlin, but these guidelines apply primarily to GHG inventory reporting. There is still no single set of guide lines for the other reporting requirements. At the CoP in Berlin, there was also some discussion about the depth of review. The issue is still an open one but a fairly deep paper review is what is implied so far.

Trade Restrictions for Environmental Purposes

There are precedents for the use of trade restrictions for environmental purposes but it does not seem as though such restrictions will become part of the FCCC. Examples of such restrictions can be found in the Convention on International Trade In Endangered Species (CITES), the Montreal Protocol on Substances that Deplete the Ozone Layer, and U. S. unilateral restrictions to protect marine mammals from tuna drift nets. The Montreal Protocol restricts trade in controlled substances with non-parties; this is essentially not a sanction for violation but an anti-free-rider provision designed to bring non-members into the treaty and to protect participants' markets against non-participants' markets.

It is not expected that trade restrictions will be accepted as part of the FCCC. Trade incentives may be included, but the notion of customs-like restrictions for keeping out particular products is not likely to be acceptable to the parties. There may, however, be boycotts of certain products, organized by non-governmental organizations. In addition, social pressure can be a powerful force. For example, CITES wouldn't hold its meeting in Kyoto if Japan opted out of the ivory ban.