A growing chorus of U.S. business leaders, state and local government officials, civil society groups, and foreign partners have condemned the President’s announcement that, effective Thursday, June 1, “the United States will cease all implementation of the non-binding Paris Accord.” As former National Security Adviser Susan Rice put it, pulling the United States out of the Paris Agreement is a self-inflicted “coup de grâce for America’s postwar global leadership for the foreseeable future.” Over at foreignpolicy.com, a group of former Obama Administration officials present a forceful and compelling exposition of “Why Abandoning Paris is a Disaster for America.” They spell out why abiding by our Paris commitments would be far better not only for climate outcomes, but also for our national security, the future of our economy, and for U.S. standing in an increasingly unstable world. A key point noted by many observers is that within the framework of the Paris Agreement, the President has the ability to adjust downward our nationally determined contribution (NDC) to reducing greenhouse gas emissions, although doing so would be short-sighted at best, because states are not legally bound to hit any particular emissions targets. If the targets themselves are essentially voluntary, the notion advanced by the President that the United States must completely withdraw from the Agreement in order to unburden ourselves from its supposed economic costs is false.
The non-binding nature of the emissions targets is a central and purposeful feature of the Paris Agreement. As the U.S. chief negotiator Todd Stern explains, allowing parties to set their own emissions targets was intended to encourage broad participation among states and incentivize maximum ambition. At the same time, this approach is flexible enough to create a durable framework that will allow further reductions in emissions over time.
While the non-binding nature of these key commitments is worthy of commentators’ focus, there is another essential feature of the Agreement that is important to focus on as well: its provisions that create binding legal obligations for the parties. These provisions, which are largely procedural in nature, are important to the goals of the Agreement as a whole. In addition, because they govern the mechanics and timeline of withdrawal, they are important to understand with respect to the debate that will likely rage over the next four years about the future of U.S. participation in the Agreement.
I write to provide a very brief overview of the law of international agreements to explain that the Paris Agreement is a binding agreement under international law, despite containing key non-binding elements, and to offer some reasons why that matters. In short, the Paris Agreement’s non-binding and binding provisions are vital to its overall structure, and walking away from either type of commitment, whether or not doing so would put the United States in breach of specific treaty law obligations, is disastrous for achieving our strategic aims as well as for U.S. leadership and credibility. I also explain why giving away our seat at the table for free—while key implementation rules are still being negotiated and before any eventual withdrawal could legally take effect—does not free us but rather ties our hands as a nation. And contrary to Donald Trump’s assertions that he will be able to seek a better deal, the United States cannot unilaterally request renegotiation of an agreement signed by 195 states. Dealing ourselves out does not position us to do better, it strikes a huge blow to our ability to negotiate at all in this most important international arena on climate change, because we will no longer be at the table.
— UN Climate Change (@UNFCCC) June 2, 2017
Is the Paris Agreement binding? If so, is it a Treaty?
For those who are not steeped in treaty law, the misleading way in which the President characterized our obligations in what he described as “the non-binding Paris Accord” is likely to create confusion. Is the Paris Agreement binding or non-binding, and can it be both at the same time? And why would the existence of some legally binding obligations matter if the Agreement’s key emissions targets are voluntary?
The answer to the question of whether the Paris Agreement is binding is that it contains both provisions that create binding legal obligations and provisions that create non-binding commitments. It is common in international policymaking for states to enter into agreements that have a binding character overall, as the Paris Agreement does, but contain non-binding elements, including ones that may be central to the agreement as a whole. More generally, international arrangements span the whole spectrum from those that are entirely non-binding and create no new binding obligations (the recent Joint Comprehensive Plan of Action among the P5+1 and Iran is a salient example), to those that predominately contain legally binding provisions. When negotiators come together to draft a new instrument, they carefully weigh whether particular provisions should be binding depending on a range of factors, most fundamental among them being what type of provision will best further both the interests of the parties and the goals that the arrangement is designed to achieve.
So the Paris Agreement is not a “non-binding Accord” as the President stated – but does that make it a treaty? Yes, it is a treaty as far as U.S. commitments to the other states parties are concerned. Let me explain why. Broadly speaking, for international law purposes, any international agreement concluded by two or more states in written form and governed by international law is a “treaty.” This is why many of our international partners refer to the Paris Agreement as a “treaty” (they would also agree that it is a mischaracterization to state that the Agreement is “non-binding” because it contains some non-binding elements, even though those are very important elements). However, the term “treaty” as it is commonly used for U.S. domestic law purposes refers to a narrower subset of international agreements: those that require advice and consent by two thirds of the Senate under the Treaty Clause of the Constitution. There are other sub-categories of international agreements in our domestic law – such as those that the President may enter into on his or her own authority or based on existing legislative or treaty-based authority. Those distinctions, however, are relevant only under our domestic law.
The line between an international agreement that requires Senate advice and consent for domestic law purposes and one that does not is somewhat fuzzy. Determining which side of the line agreements fall on has long raised separation of powers concerns for the Executive and Legislative branches. The State Department’s Foreign Affairs Manual is a good place to look for guidelines. It suggests consideration of a number of non-exhaustive factors in determining whether an agreement requires advice and consent. Some of the factors are relatively specific (e.g., whether the agreement “can be given effect without the enactment of subsequent legislation by the Congress” and “past U.S. practice as to similar agreements”), while others are somewhat more amorphous (e.g., “the preference of the Congress as to a particular type of agreement” and “the extent to which the agreement involves commitments or risks affecting the nation as a whole”). It also recommends consulting with congressional leaders and committees, “as may be appropriate,” in determining how an international agreement should be concluded.
With respect to the Paris Agreement, the issue of whether advice and consent would be required was the subject of close scrutiny during the negotiations (see, for example, this exchange in October 2015 between the State Department and Senator Bob Corker, the Chair of the Senate Foreign Relations Committee, which is responsible for taking up treaties transmitted to the Senate for advice and consent). Upon conclusion of the negotiations, the State Department determined that the final agreement could be concluded without Senate advice and consent, and key congressional leaders and committees either expressed support for this conclusion or did not object.
What are the binding obligations in the Paris Agreement and why do they matter?
Once we understand that the Paris Agreement is binding but contains some non-binding provisions, how can we tell which ones are which? The primary rule of treaty interpretation is to look at the ordinary meaning of the text in its context, taking into account the overall goals and purpose of the treaty. In international instruments, similar to domestic contexts like contracts, certain language is used to indicate a binding obligation – “shall” is the archetypal example – while other words are used to signal non-binding commitments – “may” is a classic example in this category. Generally speaking, negotiators and drafters pay very careful attention to whether a particular provision uses language that indicates a binding obligation or a non-binding commitment.
The Paris Agreement, having been carefully negotiated by experienced actors over an extended time period, is certainly an example of such exacting scrutiny in the choice of words. Key provisions regarding emissions targets use non-binding language, as described above, while a number of primarily process-related provisions do create legal obligations for the parties. There are at least two reasons why this matters.
First, it is important to the structure and goals of the Paris Agreement itself that many of the provisions regarding transparency, reporting, and accountability are binding on the parties. For example, robust and binding transparency and information sharing provisions were intended to incentivize countries to advance ambitious – or at least reasonable – NDCs. They also aim to incentivize parties to try their best to meet the limits they set (and parties may do so through the mechanism of their choosing). In addition, these provisions are intended to ensure the process created by the Agreement stays on track. For example, the Agreement requires that states submit NDCs by a certain time, that the NDCs be recorded publicly, and that states report various types of information on a regular basis thereafter to track progress in implementation and encourage mutual accountability. The targets themselves, however, are not dictated by the agreement and may be adjusted over time. This structure makes the Paris Agreement a great example of the use of binding and non-binding elements to best further the goals it is intended to address.
Second, in our domestic context, it is important in the wake of Trump’s decision that the provision that governs withdrawal from the Paris Agreement is binding in nature. The operative provisions, found in Article 28 of the Agreement, are as follows:
1. At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.
2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.
The Agreement entered into force for the United States on November 4, 2016. Thus, by the terms of paragraph 1, the United States may provide written notification of withdrawal to the Depositary three years from that date, or November 4, 2019, at the earliest. Paragraph two provides that withdrawal would only become effective one year after that, or later. As former State Department Legal Adviser Harold Hongju Koh recently explained here, that means the United States cannot legally withdraw from the Agreement until November 4, 2020 at the earliest – one day after the next U.S. Presidential election.
This four-year minimum timeline is crucial in light of the intense domestic debate on the merits of staying in the Agreement: it sets up the November 2020 U.S. election as a referendum of sorts on whether the United States should indeed follow through with Trump’s announced withdrawal. Given the deep consternation about the announcement already expressed by many stakeholders, and the spread of public information about the nature of the Agreement and the consequences of a true U.S. withdrawal, it is possible that a future Administration (or potentially even this one) could decide to stay in the Agreement after all.
During this period of limbo over our long-term posture, Trump’s decision that the United States “cease all implementation” of the Agreement now – rather than maintaining our participation at least until the notification of withdrawal could actually be submitted – leaves the United States at a distinct disadvantage. As others have observed, the “measurement and reporting portions of the agreement are to be negotiated and put into place from now through 2020.” By choosing to stop all implementation at this point, the hands of the United States will indeed be tied – not by giving up our sovereignty or taking on overly onerous economic burdens, as Trump argued would be the case if we stayed in, but by giving away our seat at the table for free, and doing so during a period when the rules of the road are still being written.
If the United States cannot be counted on to carry out our commitments when the Presidency changes political parties, it will erode trust in future Presidents of any political party to enter into agreements with partners. Over time, this lack of reliability will relegate the United States to the periphery of international policymaking. When the world’s biggest power cannot be counted on to live up to its commitments, the center of power may shift out from under it.
Photo: U.S. Secretary of State John Kerry speaks at the United Nations Signing Ceremony for the Paris Agreement, on April 22, 2016 – Spencer Platt/Getty