What to Look for in any U.S. Withdrawal from the Paris Agreement

President Trump has indicated that he will announce a decision on future U.S. participation in the Paris Agreement later today at 3 pm.  Reports suggest that he has already made up his mind to withdraw.  That decision is likely to receive extensive attention (not to mention criticism) on the merits.  And certainly that attention is warranted.  But I believe an equally important issue will be how the Trump Administration pursues its withdrawal.

Contrary to popular opinion (and this erroneous NY Times Q&A), the Paris Agreement was never intended to be non-binding.  It is, on its face, pretty clearly a treaty in the international law sense of that term (see the standard definition in Art. 2(1)(a) of the 1969 Vienna Convention on the Law Treaties (VCLT)).  True, one key provision of the Paris Agreement (Article 4) contains language that does not evidence an intention to create legal rights or obligations (and the negotiation of which almost blew up the original deal).  But the rest of the agreement was clearly intended to create a treaty and the language used manifests such intentions.  For confirmation, one only has to look to the U.N. Treaty Office (which is home to some of the world’s leading experts on treaties) and note how it has always regarded the Paris Agreement as a treaty.

The United States formally joined the Paris Agreement on November 4, 2016, following its acceptance of that treaty on September 3, 2016.  It is true that the United States did so without seeking the U.S. Senate’s advice and consent under Art. 2, cl. 2, section 2, nor did Congress specifically authorize U.S. participation as it did for treaties like NAFTA or the WTO Agreement.  But U.S. treaty law and practice has long accommodated other means for the United States to enter into treaties in the international law sense, including through the President’s sole executive powers or where prior Congressional authorization supports U.S. participation.  In the case of Paris, the precise grounds for U.S. acceptance are contested (see Dan Bodansky and Peter Spiro’s impressive take on these issues here).

As far as international law is concerned, however, there is little question that the United States is currently bound by its acceptance.  The law of treaties is most famous for the foundational principle pacta sunt servanda, or as VCLT Art. 26 puts it, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”  And for those less familiar with the VCLT, it is important to note that although the United States never joined the “treaty on treaties” every Administration since Richard Nixon’s has regarded almost all of its provisions as customary international law (the exceptions being provisions on signature and consultations in the event of breach). Thus, to withdraw or otherwise end its obligations under the Paris Agreement, the United States will have to look to the law of treaties.  Indeed, VCLT Article 42 provides that a treaty’s validity or a State’s consent can only be impeached through the VCLT’s application and, more pertinently, “[t]he termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention.”

So, how can the United States get out from the Paris Agreement?  I predict the Trump Administration will invoke one of four possible avenues for its exit later today.

(1) Invalidating U.S. Acceptance Due to a “Manifest Violation” of U.S. Domestic Processes? First, the United States could argue that the Obama Administration’s acceptance was never valid to begin with.  VCLT Art. 46 provides in relevant part

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State con ducting itself in the matter in accordance with normal practice and in good faith.

Thus, the law of treaties allows a State to avoid treaty obligations by invoking a manifest violation of its domestic processes for treaty-making. The negative framing of this option suggests, however, that U.S. efforts to invoke it are not likely to be convincing.  Past attempts by States to invoke flaws in their domestic approval processes have been dismissed (see, most notably, paras 265-68 of the International Court of Justice’s opinion in the case of Land and Maritime Boundary between Cameroon and Nigeria).  What’s more, the United States has a long history of using at least four different methods for joining international treaties. As such, it would be hard to sustain a case that the Obama Administration’s use of the Executive’s constitutional authority alongside existing regulations and prior Congressional authorizations was nonetheless a “manifest” violation of extant U.S. processes for concluding treaty commitments.

(2) Withdrawal under the Paris Agreement’s Own Terms:  Second, under VCLT Article 54, “The termination of a treaty or the withdrawal of a party may take place: (a) In conformity with the provisions of the treaty.”  Where the treaty is silent on termination, the VCLT lays out certain default rules, but these are not relevant here since, in the case of the Paris Agreement, Article 28 lays out the conditions for a State’s withdrawal:

1. At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.

2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.

3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement.

As noted above, the Paris Agreement entered into force for the United States on Nov. 4, 2016.  As such, the United States cannot give formal written notice of its withdrawal until more than three years have passed from the date of the Agreement’s entry into force, or Nov. 4, 2019.  And, even then, the actual legal effect of the withdrawal will not occur for an additional twelve months (Nov. 2020) barring a (very unlikely) U.S. willingness to specify a later date.

Does this mean the Trump Administration cannot withdraw tomorrow under the Paris Agreement’s terms?  I think the answer is, legally speaking, quite clearly yes.  On the other hand, there is probably nothing precluding the Trump Administration from announcing its “intention” to give the proper notifications at the earliest possible date.  Yet, the United States would remain bound to perform the Paris Agreements obligations (like Art. 16(7)’s information sharing commitment) until such time as it is no longer bound by them.

(3) Withdrawal under the Terms of the UNFCCC:  Paris Agreement Article 28(3) offers a third exit route.  It provides that if the United States exits the “Convention” (that is, the UN Framework Convention on Climate Change or “UNFCCC”) it can also bring to an end its obligations under the Paris Agreement.  The UNFCCC exit clause, Article 25, is similar to the Paris Agreement’s terms:

WITHDRAWAL

1. At any time after three years from the date on which the Convention has entered into force for a Party, that Party may withdraw from the Convention by giving written notification to the Depositary.

2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.

3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from any protocol to which it is a Party.

The difference here is that the three year period has long since passed (the United States has been bound by the UNFCCC since it entered into force on March 21, 1994).  Thus, if the Trump Administration is willing to walk away from the entire climate change framework, with all the extra signaling that would accompany such a move, it could effectuate its exit after the passage of only one year from its withdrawal notification (i.e., by June 2, 2018).  As with invoking Article 28 of the Paris Agreement, however, the United States would still be legally bound by both the UNFCCC and the Paris Agreement itself in the interim. [Update: André de Hoogh helpfully notes that paragraph (3) here only refers to Protocols (e.g., the Kyoto Protocol) and not “Agreements” like the Paris Agreement, challenging its availability in this case.  It’s an interesting argument that requires further study although my initial reaction is that I would find it unlikely that a Party could withdraw from the UNFCCC on one year’s notice, which the United States can clearly do, but still be a party to a clearly subsidiary agreement for 3 more years].

(4) A Breach of the Paris Agreement:  But if we’ve learned anything from the last several months of the Trump Administration it is its willingness to buck traditional conventions.  Thus, we might (and probably should) anticipate a fourth option tomorrow – a simple statement of U.S. withdrawal that purports to take effect immediately.  Now, if the United States does this, I believe it would most likely be in breach of its treaty commitments under the Paris Agreement itself.  Unfortunately, the VCLT is notorious for having limited remedies in the event of such a breach.  For starters, the VCLT only provides remedies for material breaches, which might lead the Trump Administration to question if an immediate withdrawal rises to such a level.  But, VCLT Art. 60(3)(a) makes clear that a material breach includes “a repudiation of the treaty not sanctioned by the present Convention.”   In such cases, however, the only remedies the VCLT affords is to give other affected parties the right to collectively or individually suspend or terminate their obligations under the relevant agreement.  Given that this whole current crisis turns on the fact that almost every other country in the world wants the Paris Agreement to continue rather than cease, this is a profoundly unsatisfactory response option.

There are, however, at least two other potential remedies States parties to the Paris Agreement might employ if they believe the Trump Administration has breached Article 28 (or UNFCCC Art. 25):  retorsion and countermeasures.  Under the so-called “law of State responsibility” States are always free to respond to internationally wrongful acts (a category that includes treaty breaches) with lawful, but unfriendly responses — i.e., cutting off diplomatic relations, reducing or eliminating financial assistance, suspending information sharing, etc.  The idea is to sanction the breaching party by ceasing or forgoing certain behavior even if such behavior was not legally required in the first place.  Countermeasures, in contrast, involve otherwise unlawful behavior by the victim State(s) that is legitimated by the prior unlawful acts of the breaching State.  For example, even though international law may prohibit States from taking certain trade sanctions, where there is a prior breach, that otherwise unlawful behavior may become lawful.  Now, there are a number of conditions on the use of counter-measures (for example, they must be reversible, proportional and temporary) and there are circumstances like force majeure that may preclude its very application. Still, countermeasures could be a powerful tool for States, whether acting individually or collectively, to respond if they interpret any Trump Administration withdrawal from the Paris Agreement as a violation of the United States’ treaty commitments.

In sum, the mechanics of treaty withdrawal are complex.  There are additional arguments and counter-arguments that might arise, but which I’ve not addressed out of concerns with time and space (for example, could the United States invoke other grounds for terminating its Paris Agreement commitments like a fundamental change of circumstances, impossibility or necessity). For now, I just wanted to lay out the most likely options if the predicted withdrawal comes to pass.  As always, I’m cognizant that many readers have deep expertise in the law of treaties.  Thus, I’d welcome further thoughts or comments on this issue.  I’m sure there are interesting additional angles worth considering in what will be the Trump Administration’s most serious foray into the treaty realm to date.