Secretary of State John Kerry caused a bit of a stir with comments this week in the Financial Times suggesting that the Paris climate agreement will not be a legally binding treaty.
It appears Mr. Kerry has stepped somewhat inelegantly into a legal morass that doesn’t translate easily into sound bites.
There’s understandably a great deal of confusion about the finer legal points at issue here, in part because the term “treaty” means different things under international and U.S. law. The bottom line is that the Paris agreement will very likely be a treaty under international law, but probably not a treaty as that term is generally understood in the U.S. context.
To elaborate a bit (for a fuller explanation see an excellent legal analysis authored for us by Arizona State University legal scholar Dan Bodansky):
The negotiating mandate that launched the Paris talks back in 2011 calls for an outcome with legal force. That’s generally interpreted by parties, including the United States, as an agreement in a form that constitutes a treaty under the Vienna Convention on the Law of Treaties.
(The Vienna Convention defines a treaty as “an international agreement concluded between States in written form and governed by international law.” It binds only those states that express their consent to be bound—for example, through a process of ratification or acceptance.)
But not all parts of a legally binding agreement have to be legal obligations. The real legal issue in Paris will be whether countries’ individual targets will be binding. The European Union and others say they should. The United States and others say they should not.
The outcome on that question will be an important factor in whether the Paris agreement will require the advice and consent of the U.S. Senate as a “treaty” under Article II of the Constitution.
The United States has joined many agreements over the years through executive action – in other words, by the president acting alone. (These include the Paris Peace Accords ending the Vietnam war and, just last year, the Minamata Convention on Mercury.)
Whether an agreement can be concluded by the president as an “executive agreement” can depend on a mix of factors, including whether it is within the scope of an existing treaty and whether it is consistent with existing U.S. law.
In this case, the Paris agreement will largely elaborate the U.N. Framework Convention on Climate Change (UNFCCC), which President George H.W. Bush ratified in 1992 with the advice and consent of the Senate.
Whether the agreement is consistent with, and can be implemented under, existing law will depend on its contents. A legally binding emissions target (or a new binding financial commitment) would go beyond existing law, so arguably would require approval by the Senate or both houses of Congress.
If the targets aren’t binding, what parts of the agreement will be? Likely, a set of procedural commitments that, for instance, obligate a country to formulate and submit a nationally determined contribution, report on its implementation, and periodically update that contribution.
There’s a legitimate debate over whether making targets binding means they’re more likely to be met, or whether it makes countries less likely to participate or offer ambitious targets. It’s an issue that may not be settled until the final hours in Paris.
What isn’t really in contention, though, is whether the agreement will be a legally binding agreement. It almost certainly will be.
There’s a theory I’ve been advancing for some time and the upcoming Paris climate talks will, for the first time, put it to a test.
The issue is whether the United Nations Framework Convention on Climate Change (UNFCCC) is capable of delivering. Established nearly a quarter century ago as the global forum for countries to take on climate change, the UNFCCC enjoys universal participation – and is universally deemed a disappointment.
The harshest assessments came in the wake of the ill-fated Copenhagen conference in 2009, when many quietly, and some openly, began urging governments to abandon the UNFCCC as a place worth investing any effort or hope.
But governments chose to stick with it. The following year, in Cancún, they hammered out an agreement through 2020. And the year after that, in Durban, they launched a new round of negotiations culminating next month in Paris. The aim: a new global agreement beyond 2020.
Anyone who’s closely tracked the UNFCCC knows that the process is ungainly and byzantine at best – and, at worst, a highly politicized, dysfunctional mess.
I’ve maintained over the years, though, that the UNFCCC’s lack of progress is a reflection less of the process itself, than of the meager political will that governments bring to it. The UNFCCC, in other words, has never been fairly tested.
Paris will provide that opportunity.
The collective will among governments to address climate change, while still lacking, is stronger than ever. The United States and China – the world’s largest economies and emitters, and long-time climate adversaries – are jointly leading the call for a new agreement. More than 150 countries have formally offered their intended contributions (how they’ll limit or reduce their emissions). And, as I describe in a recent post, there’s growing convergence in high-level discussions on the core elements of a deal.
At the table, though, this collective will and convergence have yet to translate into agreed text. In the final pre-Paris negotiating session two weeks ago in Bonn, many parties seemed more intent on preserving favored options than on moving to common ground. The 51-page text that emerged is more coherent, with clearer options, but is still a far cry from a ratifiable agreement.
This is disappointing but not surprising. The UNFCCC operates by the unofficial rule that nothing is agreed until everything is agreed. So all issues, and there are many of them, must inch along it the same pace until an acceptable overall package begins to emerge.
Negotiators will no doubt have to work through the night(s) in Paris to get to a final deal. But the ultimate landing zones have been fairly clear for some time (see, for instance, the report from C2ES’s recent negotiators dialogue). So it’s not only possible, but probable, negotiators will get there.
The outcome, in all likelihood, will fully satisfy no one and leave many once again disappointed. But while destined, by some measures, to fall short, the agreement taking shape could prove a major turning point – even transformational.
Here’s what I think we can count on: a binding agreement that gets all of the major players on board, uses strong transparency to hold countries accountable, and works to build ambition over time. If successful, this would build confidence that everyone is doing their fair share, which will enable everyone to keep doing more.
If we leave Paris next month with that kind of agreement, I think we’ll be able to say that the UNFCCC, finally put in a position to deliver, has proven that it can.
Negotiations toward a new global climate agreement resume Monday in Bonn amid growing concern that time is running short – the agreement is due this December in Paris – and that the remaining task is monumental.
Indeed, while the new text negotiators will be working from is a bit more coherent than the last one, it is still a very long way from something countries could sign on to in Paris. Parties hopefully will make progress this week narrowing options and will task the co-chairs with producing a much more streamlined text for the next meeting in October.
The state of the text, though, may not the best measure of the state of the negotiations. The tedious slog of the formal sessions in Bonn may be what’s most visible. But countries are spending even more time talking in other, less formal settings, at multiple levels. And the conversations there are considerably more encouraging.
One example is C2ES’s Toward 2015 dialogue, which brought together senior negotiators from China, the United States and 20 other European, Asian, Latin American and African countries for eight in-depth discussions over 15 months. A final report last month from dialogue co-chairs Valli Moosa and Harald Dovland outlines key elements of a Paris deal.
I recently wrote a piece for China Dialogue about the US announcement of its intended contribution to a new international climate agreement due this December in Paris. Here is that article:
The US pushed strongly for getting climate targets on the table well ahead of this year’s Paris negotiation, arguing that exposing countries’ offerings to a bit of scrutiny would encourage them to “put their best foot forward.” With the formal submission of its intended target, the Obama administration arguably has done just that.
The US contribution is, for the moment, only a declaration of intent. But by coming out early with the strongest target it believes it can muster, the White House has charted an ambitious course at home. And it is upping the pressure on China and other major economies to do the most that they can too.
The end result, hopefully, is a new agreement in Paris that not only pulls all these numbers together, but also holds countries accountable for their promises, and commits them to keep returning to the table in the years ahead to assess and strengthen their efforts.
Leaders at the February 2015 UNFCCC conference in Geneva. Photo courtesy UNFCCC.
The final year of U.N. talks aimed at producing a new global climate agreement kicked off this week in Geneva. As negotiators wrestle with the working draft of the new agreement, it’s clear that all the core issues remain very much in play.
The talks, under the U.N. Framework Convention on Climate Change (UNFCCC), were launched in 2011 in Durban, South Africa, and are to conclude this December in Paris. The aim is a post-2020 agreement “with legal force” and “applicable to all.”
The more immediate goal in Geneva is to produce a “draft negotiating text,” which technically must be in circulation at least six months before Paris. But the text emerging from Geneva will be very far from a finished product. The starting point this week was a 39-page collection of parties’ proposals forwarded from COP 20 in December in Lima. By mid-week, the working draft had grown to nearly 90 pages.
The unwieldy text reflects the wide disparities remaining on all the core issues in shaping the Paris agreement.
Countries will soon begin submitting their “intended nationally determined contributions” to the agreement. That these INDCs (focused primarily on constraining greenhouse gas emissions) will be “nationally determined” suggests that the agreement will have a strong “bottom-up” character. Much of what’s at issue is whether and how to blend in “top-down” elements to create a hybrid agreement that delivers both broad participation and stronger ambition.