Paris: The Treaty That Dare Not Speak Its Name

By Rupert Darwall

Monday, December 14, 2015

What’s in a name? that which we call a rose

By any other name would smell as sweet.

                                     — Juliet, Romeo and Juliet, William Shakespeare

The agreement adopted in Paris at 7:28 p.m. local time Saturday doesn’t call itself a treaty, but in every other respect it is one. Four years ago at the Durban climate conference, climate negotiators decided to launch a process “to develop a protocol, another legal instrument, or an agreed outcome with legal force.” If the Paris Agreement is to meet the requirements of the Durban Platform, legal scholar and Clinton-era climate-change coordinator at the State Department Daniel Bodansky states that “the Paris Agreement must constitute a treaty within the definition of the Vienna Convention.”

Article Two (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.” Under the principle of pacta sunt servanda (“agreements must be kept”), treaties are binding on the parties and must be performed by them in good faith, Bodansky observes in a recent book. Article 14 of the Paris Agreement establishes a compliance mechanism, and Article 20 duly sets out the process for the depositing of “instruments of ratification, acceptance, approval, or accession.”

Article Two of the Constitution of the United States circumscribes the power of the executive to make treaties by stating that the president “shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” The question then arises whether the Paris Agreement imposes new legally binding obligations on the United States. American negotiators were mindful of this when Secretary of State John Kerry reportedly threatened that the U.S. would walk out unless negotiators removed from the draft treaty the specification that developed countries would begin providing $100 billion a year in climate funding, by 2020. The Business Standard of India reported that Kerry said: “I would love to have a legally binding agreement. But the situation in the U.S. is such that legally binding with respect to finance is a killer for the agreement.”

Here, one needs to be careful not to be taken in by the hoopla surrounding the treaty agreement. “For the first time, we have a truly universal agreement on climate change,” U.N. Secretary General Ban Ki-moon said in an interview after the agreement was adopted. Article Four (2) of the Paris Agreement might appear to signal universal accord — it requires all parties to pursue “domestic mitigation measures,” that is to say, policies that slow down or reverse the growth of their greenhouse-gas emissions.

This provision, however, is no more than a reformulation of what the United States and all other parties are already obligated to do under the 1992 U.N. framework convention on climate change, which the Senate approved in a 95-0 vote. All parties to the convention shall “formulate, implement, publish, and regularly update national programs to mitigate climate change,” Article Four (1) (b) of the 1992 convention states. Despite what the U.N. secretary general claims, the global scope of the Paris Agreement is not what makes the Paris Agreement legally important or novel, as it merely reiterates what was enacted 23 years ago.

Kerry had compelling political reasons to take the $100 billion a year of climate money out of the text of the treaty. Though not in the treaty, the $100 billion a year — now pushed back to 2025 — survives as a formal decision of the Paris conference (paragraph 54 of the decision document). That massive fund would have been not only a killer for the deal, it would also have been a killer for Hillary Clinton’s presidential candidacy. As secretary of state, Clinton made the $100 billion pledge at the Copenhagen climate conference to keep those talks from cratering.

Nonetheless, the Paris Agreement does impose a new, expansive, and enormously consequential legally binding obligation on the United States. “The efforts of all Parties will represent a progression over time,” Article Three states. Thus the treaty creates a ratchet mechanism where none previously existed. The new obligation is repeated in the next article: “Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition.” This is the strongest language of the whole document.

The spin coming out of Paris and the Obama administration is that the new treaty bridges the divide between developed and developing nation parties. As President Obama put it in his statement welcoming agreement on the treaty, “We showed it was possible to bridge the old divides between developed and developing nations that had stymied global progress for so long.” In fact, the divide between developed and developing countries remains, the same divide that led the Senate (including then-senator Kerry) to pass the 1992 Byrd-Hagel resolution by 95 to 0 that then torpedoed U.S. ratification of the Kyoto Protocol.

Article Four of the Paris Agreement states that developing countries should be provided with support for implementing the agreement, and this provision in turn is tied to Article Nine on the obligation of developed country parties to provide financial contributions to developing countries. India’s Intended Nationally Determined Contribution makes this conditionality explicit by tying its mitigation efforts “to the availability and level of international financing and technology transfer” (emphasis is mine). By contrast, developed countries are on the hook and obligated to ratchet up their emissions cuts over time — whatever developing countries do or don’t do — in perpetuity.

Furthermore, “highest possible ambition” precludes the devising of the escape hatches that Clinton-administration officials viewed as critical. “We agreed there needed to be goals, even aggressive goals,” a senior economic adviser to Bill Clinton told the New York Times in 1997. “But there also needed to be escape hatches, in case the economic effects turned out to be a lot more damaging than we thought.”

In comparison with the Clinton administration and the Kyoto Protocol, the Paris Agreement is reckless and irresponsible. The new treaty replicates the structural flaw of Kyoto in not having reciprocal actions and obligations between developed and developing countries, and it adds a deeply problematic procedural one. This is a vehicle with the gas pedal forever being pushed down and no brakes or steering wheel.

U.S. ratification of the Paris Agreement without congressional approval would raise profound constitutional questions. Attempts to push through a quasi-carbon tax (in the form of Al Gore’s BTU tax) and cap-and-trade measures repeatedly failed, and the Senate made clear that it would not ratify the Kyoto Protocol, which in key respects was a less bad treaty than the Paris Agreement. The legal effect of the Paris ratchet would be to constrain the discretion of future administrations. The EPA’s Clean Power Plan is the most costly component of the Obama administration’s plan to cut emissions by 26 to 28 percent below 2005 levels by 2025.

No one, least of all the EPA, knows how much the Clean Power Plan will eventually cost. In 2013, the German environment minister declared that its renewable program could cost one trillion euros ($1.1 trillion). The U.S. generates nearly seven times as much electricity as Germany does, which gives some idea of the scale of its cost. When the Clean Power Plan turns out to be a disaster, under international law, the U.S. could not simply ditch it, but would have to replace it with something else (a carbon tax or the cap-and-trade plan, for example, that Congress already rejected) otherwise it would be in breach of the Paris Agreement.

President Obama has developed a new presidential doctrine to bind his successors by aiming to make them accountable to the court of international opinion. “Everybody else is taking climate change really seriously,” the president said at a press conference shortly before he left Paris. “They think it’s a really big problem. . . . So whoever is the next president of the United States . . . is going to need to think this is really important.” If the president decides to ratify the Paris Agreement without obtaining congressional approval from two-thirds of the Senate, not only will he ensure that the only way of reversing the agreement will be to put a Republican in the White House, but he also will be subverting Article Two of the U.S. Constitution. For America, the Paris Agreement is a very big deal.