Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.

6 Responses

  1. In what sense is the agreement being considered (and granted we have very few details at this point) a “binding” agreement for the U.S.?

    One of the purposes of signing on to a binding agreement is to signal to others that your govt will not change course on its policy commitments, even if there is a change in govt. It is not clear how this would work in this context if all of the policy commitments are implemented through executive orders (which could be presumably changed by future Presidents or even by Congressional legislation). To put it differently, it you cannot get the Senate to approve the treaty, can the U.S. meaningfully “bind” itself to an agreement?

  2. The phrase used in the NYTimes article is “politically binding.” Which sounds impressive to the layperson, but seems to suggest Prof. Goldsmith is correct.

  3. do you believe that Belmont and Pink did not involve a presidential or sole Executive Agreement that had a domestic legal effect on its own?

  4. I do not have much to add to Julian Ku and Jack Goldsmith’s cogent and comprehensive analyses of this issue. Their assessment – from both a legal and political standpoint – is correct, in my view. Instead, I would like to offer an additional legal perspective in light of the NYT’s report that: ‘American negotiators are … homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.’

    Notwithstanding the fact that the 1992 UN Convention Framework on Climate Change (UNFCC) is legally non-binding, the NYT’s report of the US’s creative position on the UNFCC (if accurate) raises the specter of the amendment provisions under Articles 39 and 40 of the Vienna Convention on the Law of Treaties (VCLT). As a matter of interpretation and practice, these provisions require the same level of formalities of ratification when it comes to amendments of treaties. Thus, it is arguable that the US’s creative position with respect to the UNFCC, which ostensibly amounts to a proposed amendment of that convention, would require President Obama to first sign and then seek Senate ratification of the proposed amendment. In short, the President cannot amend the UNFCC on behalf of the US by sole executive agreement.

    Of course, this is but one potential legal argument with respect to the US’s position. Given the cryptic (and at times, contradictory) wording in the NYT’s article, the Obama Administration may have in mind the creation of a new Protocol pursuant to the UNFCC (such as the Kyoto Protocol, which the Senate never ratified). Such a Protocol raises several other issues that I will not address here. But I think Julian Ku and Jack Goldsmith are basically right: given the voluntary basis – i.e. legally non-binding nature – of the proposals contemplated by the President, any executive actions along these lines, no matter how dubious their international or internal legal basis, would have little legal effect in the end. Their true end is likely political: to rally Democrat voter turnout for the 2014 elections.

  5. It is somewhat unclear, but a “voluntary pledge” would not be an “amendment” or “Protocol” to a treaty. Yet, a “voluntary pledge” could implicate “estoppel” at a later date, unless it is understood that the “pledge” is merely “political.”
    p.s. The President has engaged in sole Exec. Ags. to supplement treaties — e.g., Exec. Ags. to supplement NATO SOFA.

  6. To pick up on your point, Jordan, it could also potentially qualify as a ‘unilateral act’, if all the requirements were met. But again, with such a vague, and at times confusing, report of the US’s position in the NYT’s article, it is hard to say what’s what. I guess we will just have to wait for these crucial details to come to light to make an informed opinion.

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