The Legal Character of the Paris Agreement: A Primer

[Dan Bodansky is the Foundation Professor of Law and Faculty Co-Director of the Center for Law and Global Affairs at the Sandra Day O’Connor College of Law at Arizona State University. He will be in Paris for the climate change negotiations. This is the second in a series of updates both from the U.S. and from Paris. Professor Bodansky has consulted for the government of Switzerland and the Center for Climate and Energy Solutions (C2ES) in relation to the Paris Summit. However, he is writing in his personal capacity and the views expressed do not necessarily represent those of the Swiss government or C2ES.]

Confusion reigns supreme about the legal character of the Paris agreement.  Last month, Secretary of State Kerry made waves in Europe when he said that the Paris agreement would “definitely not be a treaty.”  This prompted President Hollande to respond, “If the deal is not legally binding, there is no accord, because that would mean it’s not possible to verify or control commitments that are made.”  And just yesterday, the New York Times reported that the Paris agreement will not be “a legally binding treaty” that needs ratification by governments to have force, but will instead consist of “voluntary plans” that “avoid the legal definition of a treaty.”

So here is a quick primer on the legal character of the Paris Agreement:

First, there appears to be no question that the agreement will be a “treaty” within the meaning of the Vienna Convention on the Law of Treaties, that is “an international agreement concluded between States in written form and governed by international law” (VCLT art. 2.1(a)). As the VCLT expressly states, whether an agreement constitutes a treaty does not depend on what the agreement is called.  Rather, it depends on whether the agreement’s contents manifest an intent by the parties that the agreement be governed by international law. The current negotiating text includes final clauses addressing such issues as signature, ratification, entry into force, and depositary, which make sense only if the parties wish to make the agreement a treaty under international law.

Second, although the VCLT provides that agreements are binding upon the parties and must be performed by them in good faith (VCLT art. 26), not every provision in a treaty necessarily creates a legal obligation, the breach of which entails non-compliance. Often, treaties contain a mix of mandatory and hortatory elements.  For example, the emissions target set forth in Article 4.2 of the UN Framework Convention on Climate Change was expressed as an “aim.”  So, even though the Paris agreement will be a treaty, not every element of it need be legally binding on the parties.  For example, countries’ “nationally-determined contributions” (NDCs) – that is, their emission reduction targets – could take the form of a political aim rather than a legal obligation.

Third, the term “treaty” has a narrower meaning in US law than in international law, referring to agreements that the President sends to the Senate for advice and consent to ratification under Article II of the Constitution.  The vast majority of treaties in the international sense are not adopted as Article II “treaties;” rather they are adopted as “executive agreements,” in most cases with the approval of Congress, but in some cases by the President acting alone.  So even if the Paris agreement is a treaty under international law, it need not be adopted by the United States as a “treaty” under Article II of the Constitution.  (For more on the issue of US adoption, see Julian Ku’s recent post, A Treaty or Not a Treaty.)  This may have been what Secretary Kerry meant when he said that the Paris agreement would “definitely not be a treaty.”

Fourth, whether the Paris agreement is adopted by the United States as an Article II treaty, with the advice and consent of the Senate, or as an executive agreement, by the President acting alone, would not affect its character under international law or the ability of a future President or Congress to withdraw.  Regardless of the procedure for adoption, as a matter of international law, the right of the United States to withdraw would be governed by the agreement’s withdrawal clause, and, as a matter of US law, US participation could in practice be terminated by a future president through executive action or by Congress through the enactment of a later-in-time statute.

Finally, although most people, including President Hollande, assume that the Paris agreement will be more effective if countries’ NDCs are legally binding, this is not necessarily the case.  The effectiveness of an international regime is a function of three factors:  (1) the ambition of its commitments; (2) the level of participation by states; and (3) the degree to which states comply.   Those who argue for the importance of a legally binding outcome in Paris focus primarily on compliance.  But the legally binding character of parties’ NDCs could also affect ambition and participation, potentially in negative ways.  Moreover, even if the legally-binding character of a provision does enhance compliance – a plausible hypothesis but one that has resisted empirical demonstration – other factors can also promote compliance, including transparency and accountability mechanisms, which make it more likely that poor performance will be detected and criticized, thereby raising the reputational costs for the state concerned.  Contra President Hollande, these verification procedures do not depend on the legal character of parties’ NDCs; non-binding provisions can also be subject to a strong system of monitoring, reporting and verification.   So the question is how much additional compliance would result from making NDCs legally binding, and whether this value-added for compliance might be outweighed by a diminution in participation and/or ambition.

For more on the legal status of the Paris agreement, see Bodansky and Rajamani, Key Legal Issues in the 2015 Climate Negotiations (Center for Climate and Energy Solutions 2015), Bodansky, Legally Binding vs. Non-Legally Binding Instruments, in Scott Barrett, Carlo Carraro & Jaime de Melo, eds., Towards a Workable and Effective Climate Regime (VoxEU eBook 2015), and Bodansky, Legal Options for US Acceptance of a New Climate Change Agreement (Center for Climate and Energy Solutions 2014), from which this post is drawn.