When is an Agreement Not an Agreement? The Blair-Schwarzenegger Global Warming Pact

It’s hard to say. According to the Associated Press, the Governor’s office admitted to not talking to Washington before going ahead with their announcement. Yesterday, however, the White House’s Council on Environmental Quality (CEQ) was reported to have suggested that this was a “wonderful amplification” of talks last year between the President and Blair. Such post-hoc acceptance of a sub-state actor’s agreements is not unprecedented; nations states occasionally adopt their sub-state actor’s commitments as their own rather than engage in internal power struggles about whether the sub-state actor had any authority in the first place. Even if California didn’t have authorization from the federal government to conclude this text, however, there are also instances where sub-state actors have concluded unauthorized agreements that are treated as international agreements by foreign nations, provided the text meets the other criteria for constituting an international agreement.

And what are the criteria for an international agreement? Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties defines a “treaty” as “an international agreement concluded between states in written form, and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” More specifically, the United States has devised five criteria (see 22 C.F.R. Part 181.2(a)(1)-(5)) to effectuate its identification of which texts qualify as treaties or international agreements:

1) the identity and intention of the parties;
2) the arrangement’s significance;
3) its specificity, including objective criteria for determining enforceability;
4) the necessity for two or more parties; and
5) the form used

Applied to the UK-CA text, my own analysis is that, despite satisfying some of these criteria, the two sides did not conclude an international agreement. Here, the agreed version identifies two parties, the United Kingdom and California, on a matter of obvious significance–combating climate change. The text also contemplates specific commitments–sharing information and exchanging delegations– where assessing compliance would be fairly straightforward. On the other hand, the form is not standard– the text is unsigned, and it’s labeled an “announcement” with a “mission statement” in lieu of a more traditional title (e.g., agreement, pact, Memorandum of Understanding). Most importantly, there’s a real question of intent. From past experience, I’d think the federal government would likely read California’s use of the verb “commit” by itself to reflect an intention to be legally bound. But, when combined with other verbs (e.g., “commit to work to” do things), it likely reflects a statement of current political intention. As such, the text, at most suggests a binding agreement between the UK and CA to exchange delegations in the future to talk about these issues.

Moreover, I’m pretty sure the UK would decline to categorize this text as legally binding by applying its own criteria to treaty-making. The UK generally views the verb “will” as connoting a political, viz. a legal, intention (“shall” is the verb employed by the UK to bind itself under international law). In contrast, the United States does not concede that using “will” always precludes a legal intention, preferring to examine texts in their entirety for evidence of legal intent. Still, I would bet Blair did not mean to legally obligate the UK to anything when he committed that the UK “will share best practices on emissions trading and lessons learned in Europe” or that it “will coordinate our energy sector efforts to switch to clean energy technologies.” On the whole, therefore, notwithstanding contrary language, I believe this instrument would ultimately be considered a political commitment, rather than a legally binding instrument.

Separate and apart from this international legal analysis, California may still face problems with this instrument as a matter of U.S. law. Domestically, the Constitution, prohibits U.S. states from entering into treaties entirely, and suggests that “[n]o State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another state, or with a foreign Power.” Interpreting these provisions has proved difficult; Justice Story himself wrestled with how to distinguish texts that would be absolutely prohibited versus those that might be permitted, subject to congressional approval, and no one since has come up with a satisfactory distinction. Moreover, U.S. courts have gone on to suggest that any congressional consent can occur tacitly or post hoc. And, to complicate matters even further, many look to Supreme Court precedent on compacts among U.S. states to suggest a third category of foreign compacts that don’t require congressional consent at all, unless the agreement tends “to increase the political power in the states” and, in doing so, “encroach upon or interfere with the just supremacy of the United States.” Virginia v. Tennessee, 148 U.S. 503, 519 (1893).

As a matter of U.S. law, therefore, the question becomes whether this was (i) a prohibited treaty? (ii) a compact Congress must approve? or (iii) something else that doesn’t increase California’s power vis-à-vis the federal government? The Associated Press reported that, according to Scharzenegger’s spokesman, Adam Mendelsohn, this was “an agreement to share ideas and information. It is not a treaty,” But, even if you accept that characterization, that still doesn’t tell us whether this “agreement” might warrant congressional approval because it encroaches on federal supremacy. Indeed, it’s not entirely clear that the Compact Clause even requires an “agreement” in the international law sense of the term. After all, whether or not California legally bound itself to share information and meet with UK officials on climate change, the ability of the United States to speak with one voice on climate change is undoubtedly altered by this instrument. The UK now knows that if it doesn’t like what it hears from Washington, the best course of action may be to seek out cooperation from willing U.S. states rather than continuing government-to-government talks. On the other hand, California may argue that to breach the Compact Clause, an actual, legal agreement is required, and here there was no intention to create such an agreement. And if there’s no agreement, there’s no need for Congressional approval, regardless of how California’s actions impact federal supremacy.

Thus, California can make good domestic and international legal arguments that this text does not contain legal commitments that would trigger the Compact Clause or bind the United States under international law (indeed, I often suspect that these sorts of texts are carefully crafted to balance the need for political and media attention to a state’s interactions with foreign powers against the need to avoid violating domestic legal constraints). But, the more interesting issue may be one of standing. Who can complain about Schwarzenegger’s actions? Would a U.S. court ever allow a California citizen to challenge California’s capacity to conclude this instrument? I doubt it, just as I doubt that a court would do anything to enforce these commitments should the Governor’s office not follow through (for example, by declining to have the meetings contemplated as next steps). Similarly, I doubt that the federal government would take any legal action to force California to renounce the text in light of CEQ’s statements. Still, given its subject matter and often careless use of text, I wouldn’t be surprised if the Governor’s office gets a call from the State Department later this week to discuss the Compact Clause and the need for consultation with federal officials should California wish to avoid constitutional (or congressional) scrutiny of its foreign dealings in the future.