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

by Duncan Hollis

As Julian noted Monday, British Prime Minister Tony Blair and California Governor Arnold Schwarzenegger have announced an agreement on collaboration in the fight against global warming. The text of what was agreed can be found here. It’s titled, “United Kingdom and California Announcement on Climate Change and Clean Energy Cooperation,” followed by a mission statement in which California (CA) and the UK “commit to urgent action to reduce greenhouse gas emissions and promote low carbon technologies.” More specifically, the two sides “commit to work to” evaluate and implement market-based mechanisms (the UK, for example, “will share best practices on emissions trading and lessons learned in Europe”); share results from on-going studies of the economic impacts of climate change; collaborate on technical research, including coordinating energy sector movement to clean energy; and enhance linkages between their respective scientific communities. The text concludes with a “Next Steps” section, which ends with the two sides “commit[ting] to an exchange of delegations” to develop and deploy clean energy technologies globally. The document is unsigned. [NOTE: The “Next Steps” section–indeed the entire second page of the announcement–has now been removed from the California Governor’s web-site. This raises obvious questions about whether someone there or elsewhere was troubled by publicizing the commitment to continue meetings on global warming into the future.]

Now, Julian rightly noted that a U.S. state’s interactions with foreign states raise both international and domestic legal issues. As a matter of international law, there are two threshold questions: (1) do sub-state actors have the capacity to enter into treaties? and, if so, (2) is this a treaty? First, as I’ve written elsewhere, as a matter of international law sub-state actors generally can conclude international agreements on matters over which they have competence, provided they have the authorization of the sovereign state of which they are a part and the consent of their treaty partner(s). Basically, international law permits sub-state actors to serve as agents for their sovereign state, with international legal responsibility resting with the sovereign state, not the sub-state actor. In 1981, for example, Canada authorized Quebec to conclude a social security agreement with the United States, and one would assume that Canada remains internationally responsible should Quebec fail to meet its obligations under that agreement.

Thus, the interesting issue is whether Schwarzenegger had authority to do this?


One Response

  1. A common form of agreement between sovereign state entities and US entities other that the US government is the Letter of Agreement to cooperate. For example, Such an agreement was made last year betwen the Italian Ministry of Research and Education and the University of California at Berkeley. Signatories were not of equivalent stature and specifics are included in the text that make it clear no legal obilgations are placed on either signatory. Nonetheless such public staements of intent are useful in that they facilitate exchange activities at appropriate and parallel lower levels.

    I see no reason why the governor of Caifornia is precluded from making a joint statement of interest as there is no legal force behind the agreement unlike the case of a treaty.

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