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12/18/2015

Marty Lederman on the Paris Climate Agreement
Michael Ramsey

At Balkinization, Marty Lederman: The constitutionally critical, last-minute correction to the Paris climate change accord. Spoiler: the change is from "shall" to "should":

[T]he word "shall" would have established a legally binding obligation under international law--one that the U.S. delegates apparently thought would (as a matter of U.S. constitutional law) require the approval of either two-thirds of the Senate or majorities of both Houses of Congress.

He continues: 

[T]he determinative question is not so much whether the agreement as a whole is in some sense "binding," but instead whether any of particular provisions of the agreement impose the sorts of binding obligations that would trigger the requirement in U.S. constitutional law for Senate or congressional approval.  As Daniel Bodansky writes, in a very useful, concise paper on such questions in the context of the Paris accords:  "Treaties often contain a mix of mandatory and non-mandatory elements. . . .  [T]he Paris agreement might contain a mix of mandatory and hortatory provisions relating to parties’ nationally determined contributions and other issues. For example, it might include commitments that parties maintain, report on, and update their NDCs throughout the lifetime of the agreement, but make the achievement of NDCs only hortatory."  As one U.S. diplomat is quoted as saying, the Paris accord is not subject to Senate or congressional approval because "[t]he [emissions] targets are not binding; [and] the elements that are binding are consistent with already approved previous agreements.”

There seems a potentially substantial degree of wiggle room in that last statement.  Is a binding agreement immune from the congressional/senatorial approval requirements because its binding elements are "consistent with already approved previous agreements"?  I suppose this depends on the nature of those "elements" and the meaning of "consistent with".  

But I am skeptical of this principle as a textual matter.  Either an agreement is a binding, in which case it needs approval (unless it is of the subject matter that can be done by sole executive agreement), or it is not a binding agreement.  Otherwise, I do not see how the President is complying with the constitutional direction that all treaties gain approval.   There's no exception for treaties that are similar to prior treaties, nor should there be.  The fact that an obligation has been approved by the Senate in one agreement should not automatically mean it can be added to a second agreement without the Senate's further approval.  The two agreements may have (for example) different parties, different reciprocal obligations, different durations and termination provisions, and different dispute resolution procedures.   It's hard to say for sure in this case without identifying the nature of the binding obligations, but I would say that the acknowledgement of some binding obligations in the agreement would make it hard to defend constitutionally.