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03/02/2016

Is the Paris Climate Change Agreement Constitutional?(Part 1)
Michael Ramsey

I assume that President Obama will ratify the Paris Climate Change Agreement on behalf of the United States in at the planned U.N. ceremony in April, and I also assume he will not seek the Senate's advice and consent.  Is that constitutional?

On its face, no.  By Article II, Section, 2, treatymaking requires the Senate's advice and consent.  The President's approach is constitutional only if the Agreement is not a "treaty" for U.S. constitutional purposes.  (Under modern practice, agreements that would otherwise be considered treaties can in some cases be approved by majorities of both houses of Congress, but that is not the plan either).  But there are some arguments in the President's favor.

One possibility is that the Paris Agreement is nonbinding.  The President argued, in approving the Joint Comprehensive Plan of Action (JCPOA) regarding Iran's nuclear program, that the JCPOA did not require the approval of Congress or the Senate because it was nonbinding.  I think that's basically right, although I had some reservations about the JCPOA in particular; a nonbinding agreement is by definition not a treaty, since the fundamental attribute of a treaty is that it is binding.  (On the bindingness of treaties, see Vattel, Law of Nations, book II, sec. 218-221, concluding: "[h]e who violates a treaty violates at the same time the law of nations; for he disregards the faith of treaties, -- the faith which the law of nations declares sacred...").  Nonbinding agreements are not mentioned in the Constitution, but if you accept the executive power over foreign affairs (as I do), making them is an aspect of the President's executive foreign affairs power.

Some commentators have argued that the Paris Agreement is also nonbinding.  See here (Anne-Marie Slaughter, calling it "essentially a statement of good intentions" that can be repudiated by the next administration) and here (Richard Falk, calling it a "non-obligatory international norm."  If that's right, the Agreement is arguably constitutional under the same rationale as the JCPOA.  

But in a new paper on SSRN, Daniel Bodansky (Arizona State) argues against this view the Agreement.  He says:

The Paris Agreement does qualify as a treaty within the meaning of international treaty law; it does create legal obligations for its parties; and compliance with these obligations is not voluntary.

Slaughter and Falk are correct in saying that the Paris Agreement cannot necessarily be applied in domestic courts, that it may not require legislative approval in some countries or be part of domestic law, and that it lacks enforcement mechanisms.  But these are not tests of whether an international agreement is a treaty.  Nor does the fact that some of the Paris Agreement's provisions do not create legal obligations mean that none of them do, or that the agreement as a whole is not law. ...

I think this is right.  First, the Agreement has the form of a binding legal instrument (unlike the JCPOA, which was apparently not even signed).  It has provisions regarding effective date, signature and ratifications, reservations, and withdrawal (the latter permitted only after three years, on written notice).  Second, as Professor Bodansky documents, a number of its provisions are written in what appear to be binding language.  It's true that some of the most important provisions are not; the United States famously insisted that a key provision regarding carbon reduction be phrased as what countries "should" do rather than what they "shall" do, indicating a nonbinding goal.  But some of its provisions are "shall."

For example, Article 4.2 provides: "Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures with the aim of achieving the objectives of such contributions."  (The "nationally determined contribution" or NDC refers to the country's target emissions limits).  Article 4.9 adds that "[e]ach Party shall communicate a nationally determined contribution every five years."  It's true that the NDRs are not themselves binding, but the parties have a binding obligation to, at minimum, prepare NDCs.  (Parties also must "pursue" measures with the aim of achieving the NDCs but it's not clear what, if anything, that requires.).  I think it clear (as does Professor Bodansky) that a party that fails to provide an NDC is in breach of the Agreement.

Third, so far as I know, the State Department and other executive officials have not described the Agreement as a whole as nonbinding, although they have emphasized the nonbinding nature of some key provisions.

As a result, I don't think the constitutionality of the Agreement can be defended on the ground that it is nonbinding.  Professor Bodansky nonetheless argues that it is constitutional:

U.S. law recognizes several ways for entering into an international agreement; choice among them depends, in part, on what the agreement provides.  The United States accepted the desirability of a legally binding outcome in Paris, but [it] wanted to ensure that the Paris Agreement's obligations were ones that the President could accept [ed.: I assume he means "that the President could undertake on his own authority"], either because they were procedural in nature, because they reiterated obligations the Senate had already approved in [a prior treaty], or because they reflected and complemented existing U.S. law.

In my next post, I will consider whether these three categories support a presidential power to make agreements without the consent of the Senate.  (My short answers probably not, maybe, and definitely not).