Without a doubt, the successful negotiation of an international climate agreement last December was a monumental achievement; however, the work is far from over. The process of ratification has been, and will continue to be, of much debate, both within the United States and abroad. The agreement has not yet entered into force, nor will it until ratification by the requisite number of countries (at least 55 Parties to the United Nations Framework Convention on Climate Change [“UNFCCC”]) representing the requisite amount of greenhouse gas emissions (at least 55% of total global emissions). So far 60 Parties have ratified the agreement, accounting for just over 47% of global emissions.  Notably this includes both China and the United States as they made a joint announcement at the commencement of this year’s G20 summit held in Hangzhou, China. However, President Obama’s decision not to seek the advice and consent of the U.S. Senate reflects a delicate balance struck during negotiations between binding and non-binding provisions. This balance, and the President’s choice, raise legitimate constitutional concerns as well as questions regarding signing parties’ obligations under international law.
Parties to the Paris Agreement stand together and await the level of
ratification required for the agreement to take force
The key determination is whether the Paris Agreement is by definition a “treaty,” thereby necessitating Senate confirmation, or merely an executive agreement which blends non-binding resolutions with limited obligations under international law. The implications of this determination will affect the constitutionality of the President’s ratification as well as the ultimate scope of the Paris Agreement as binding international law. The challenge lies in the lack of both statutory definitions and jurisprudential history. It is clear that the President may enter into non-binding agreements without any congressional input. Executive agreements that involve limited spatial, temporal, or legal scope have also traditionally not required the consent of Congress, and are therefore not considered “treaties” under the U.S. sense of the term. The difficulty in interpretation comes when an agreement has both binding and non-binding provisions, as is the case with the Paris Agreement. It is important to keep in mind, however, that the mere existence of legally binding provisions does not necessarily mean that the Paris Agreement is a “treaty.”
The Paris Agreement is a highly complex and detailed accord, much too complex for a line by line analysis within this blog post. However, there is one clear distinction that is used within the agreement upon which this analysis turns. That delineation is between the words “shall” and “should.” As is the case with most classic statutory interpretations, the word “shall” designates a section as mandatory under the agreement. In contrast, the word “should” has been interpreted to be non-binding. While many key provisions use “should,” as the U.S. negotiators pushed for, the overall agreement appears to be a binding document. In effect, the U.S. is obligated to identify a target level of emissions reductions and take the steps necessary to achieve that level; however, the target level itself, as well as the methods used to pursue it, are non-binding.
Without hazarding an opinion on the constitutionality of the President’s decision not to seek congressional approval, there are still some important implications and conclusions that can be made. If the U.S. resorts to arguing that the target level set is non-binding in order to ratify the agreement, as the President implicitly did on September 3rd, then the U.S. cannot assert that another country’s reduction target is enforceable under international law. By maneuvering around the Senate, albeit for legitimate political considerations, President Obama has removed the teeth from the Paris Agreement—if there were any to begin with.
None of this should detract from the truly extraordinary feat that was accomplished in Paris last December. Getting 180 countries to sign an agreement that pledges them to emissions reduction is no small task, with or without an enforcement mechanism. Domestically, with an agreement as complex as this, and the legal distinctions as blurred as they are, any guess as to the constitutionality of President Obama’s decision to unilaterally ratify the Paris Agreement would be just that, a guess. Even with both China and the U.S. as full members, the Paris Agreement remains below both the emissions percentage and amount of parties needed for implementation. A lot of hard work went into getting the agreement to this stage, but still more remains to be done.
See generally Michael D. Ramsey, Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements, 11 FIU L. Rev. 371 (2016) (questioning the constitutionality of foregoing Senate review before ratification) (hereinafter Ramsey); See generallyParis Climate Promise: A Bad Deal for America Before the H. Comm. on Sci., Space, & Tech., 114th Cong. (2016) (statement of Steven Groves, Senior Research Fellow, The Heritage Foundation) (equating the Paris Agreement to treaties previously requiring Senate consent) (hereinafter Groves); But see generally Daniel Bodansky, The Legal Character of the Paris Agreement, 25 Rev. of Eur., Comp. & Int'l Envtl. L. 142(2016), (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2735252 [https://perma.cc/572N-N22E] (advocating ratification of the Paris agreement without Senatorial oversight) (hereinafter Bodansky).
Paris Agreement – Status of Ratification, United Nations Framework Convention On Climate Change, http://unfccc.int/paris_agreement/items/9444.php [https://perma.cc/5N4H-Q4A3] (last visited Sept. 22, 2016) (hereinafter Status of Ratification).
See Paris Climate Deal: US and China Formally Join Pact, BBC News (Sept. 3, 2016), http://www.bbc.com/news/world-asia-china-37265541 [https://perma.cc/C3YR-Z94D]; See alsoParis Agreement, United Nations Treaty Collection, (Sept. 22, 2016, 1:52 AM EDT) https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en#EndDec [https://perma.cc/P5S6-UQRX].
 Ramsey, supra note 1, at 385.
 Ramsey, supra note 1, at 385.
 Ramsey, supra note 1, at 371-73.
Ramsey, supra note 1, at 371-73.
 Groves, supra note 1, at 2; see generallyGlen S. Krutz & Jeffrey S. Peake, Treaty Politics and the Rise of Executive Agreements 31 (2009) (discussing the discretion afforded to the executive in interpreting the terms of international agreements).
 Ramsey, supra note 1, at 375.
 Ramsey, supra note 1, at 381-84.
 Bodansky, supra note 1, at 1.
 Ramsey, supra note 1, at 385-86.
Posted by Ethan C. Blumenthal on Tue. October 11, 2016 9:22 AM
Climate Change, Paris Agreement