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This paper examines a number of issues arising from the relationship of the Kyoto Protocol to the Climate Change Convention and its compliance regime with certain provisions of the law of treaties as codified in the Vienna Convention on the Law of Treaties. One issue is the nature of the treaty relationship between the Parties to the Kyoto Protocol, considered in relation to Article 30 of the Vienna Convention (concerning the application of successive treaties relating to the same subject matter). A second issue is whether there are any obligations on the part of signatories to the Kyoto Protocol to implement its provisions, notwithstanding that it has not yet come into force. This issue arises for consideration because certain provisions of the Protocol have been implemented through the medium of the Meeting of the Parties to the Climate Change Convention, even though the Protocol has not yet entered into force. Article 18 of the Vienna Convention (concerning the obligation not to defeat the object and purpose of the treaty prior to its entry into force) is relevant here. A third issue is the question whether the suspension of a State Party under compliance regimes generally, and under the Kyoto Protocol compliance regime in particular, is governed by the suspension rules of the law of treaties (namely, the rule in Article 60 of the Vienna Convention) or by the law of state responsibility (specifically, the countermeasures rule).
I. INTRODUCTION
A. The Kyoto Protocol and its Compliance Mechanism
The Kyoto Protocol1 (the Protocol) is a protocol to the 1992 United Nations Framework Convention on Climate Change (referred to in this essay as the "Climate Change Convention").2 The Protocol was adopted in 1997 at the Conference of the Parties to the Climate Change Convention. Although the Kyoto Protocol has not yet come into force, its entry into force is thought to be imminent. Even before its entry into force, certain of its provisions have been given some effect through an informal procedure that involves their adoption in Meetings of the Parties to the Climate Change Convention. In particular, this procedure has been adopted in connection with the compliance mechanism under the Kyoto Protocol. The setting up of a compliance mechanism is envisaged in Article 18 of...