Print Commentary: The Legal Consequences of American Withdrawal From the Paris Agreement
Editor's Note: This article, authored by Publisher Elizabeth Turovsky, is a legal commentary related to Archita Mohapatra's "The United States’ Withdrawal from the Paris Agreement and its Implications" in our Fall 2017 issue. We encourage readers interested in more information to refer to our print journal for unabridged legal analysis.
Striking a tremendous blow to the environmentalist community, on June 1, 2017, President Trump announced that he plans to withdraw the United States from the Paris Climate Agreement. This announcement was met with widespread condemnation from the American public, as well as from world leaders, due to the detrimental effect that the United States’ withdrawal would have on the Agreement’s ability to mitigate climate change. However, even though President Trump’s decision to withdraw the United States from the Paris Agreement is a disappointment for environmental activists, a legal analysis of the planned U.S. withdrawal demonstrates that this action is in fact constitutional. Further, President Trump’s decision to withdraw the United States from the Paris Agreement may showcase to future U.S. presidents that in order to potentially enact a long-lasting international treaty, it is essential for the Supreme Court to clarify and potentially establish barriers to the withdrawal process.
In order to address the worsening global problem of climate change on a larger scale than ever before, 195 countries joined together to ratify the Paris Agreement on December 12, 2015.[1] An integral element of the Paris Agreement is that participating countries classified as “Annex I,” or “developing” countries are only expected to undertake rapid reductions of greenhouse gasses (GHGs) once they reach a peak level of emissions. In contrast, “Annex II,” or “developed” countries, are expected to meet their NDCs starting from the onset of the Agreement.[2] The Paris Agreement also mandates that developed countries support the developing countries by financially contributing to the Green Climate Fund, an organization that works to improve the ability of developing countries to adapt to the adverse impacts of climate change.[3]
Objecting to the international community’s disparate expectations for the developed and developing signatory parties and claiming that these divergent directives would harm the American economy, President Trump has announced his decision to withdraw the United States from the Agreement. While the international community is upset that the United States decided to withdraw from a climate agreement that greatly depended on its role as the second largest GHG emitter and a financier of the Green Climate Fund, withdrawing from the agreement would in fact be legal under international and domestic law. Under international law, one method for withdrawing from a treaty is for a party to operate under the withdrawal provision of that treaty.[4] Thus, in accordance with Article 28, President Trump may withdraw the United States by giving written notification to the Agreement’s Depositary.[5]
When examining President Trump’s proposed withdrawal of the United States from the Paris Agreement through the lens of domestic law, it is important to note that President Trump hopes to withdraw the United States from the Agreement using the same method that his predecessor, President Obama, used to enter it: unilateral executive action.[6] Comprehending that the U.S. Senate would have been unlikely to ratify the Paris Agreement due to financial concerns, President Obama decided to slightly alter one provision of the Agreement in order to ensure that he would be able to enter the United States through a legitimate use of his executive power. Because an executive agreement cannot be legally binding, during the process of negotiating the Paris Agreement, President Obama worked with French Prime Minister Laurent Fabius to replace the legally binding word “shall” with the less compulsory word “should” in the provision under Article 4 that had originally mandated that developed countries meet their Nationally Determined Contributions.[7] In the aftermath of these negotiations, President Obama was able to bypass the U.S. Senate because he could credibly argue that he was entering the United States into an executive agreement, rather than into an Article II Treaty, which the Senate would have needed to ratify.
Precedent demonstrates that there are unlikely to be legal repercussions for the Trump Administration in its decision to withdraw from the Agreement using an executive action. For instance, in 2001, former U.S. President George W. Bush similarly decided to withdraw the United States from the Kyoto Protocol, a climate change agreement that was a precursor to the Paris Agreement.[8] Like the Paris Agreement, the Kyoto Protocol was not an Article II Treaty, but was instead signed as an executive agreement under President Bush’s predecessor, President Bill Clinton.[9] In the end, the United States successfully withdrew from the Kyoto Protocol without facing legal action.
Adding to the legal precedent of the United States withdrawing from international treaties, in an attempt to improve relations with the People’s Republic of China in 1980, President Jimmy Carter unilaterally withdrew the United States from the China-U.S. Mutual Defense Treaty.[10] Unlike the Kyoto Protocol and the Paris Agreement, this defense treaty was ratified by the U.S. Senate as an Article II treaty. This might suggest that President Carter would have needed Senate approval to withdraw the United States from this agreement, but Article X of the China-U.S. Mutual Defense Treaty provided that “[e]ither Party may terminate it one year after notice has been given to the other Party.”[11] Additionally, when Senator Barry Goldwater challenged the withdrawal, the Supreme Court dismissed the case without even hearing oral arguments.[12] In their concurring statements, Justices William Rehnquist and Lewis Powell contended that the issue presented by the case Goldwater v. Carter was a political question, namely, whether the Senate can negate the actions of the President in his conduct of U.S. foreign affairs.[13] Therefore, in accordance with the political question doctrine, which holds that if a question is fundamentally political then the Court does not have jurisdiction to hear the case,[14] the Court wrote that it did not have the right to decide Goldwater v. Carter.[15]
In refusing to make a decision on this case concerning the proper method of withdrawing from an Article II Treaty, the Supreme Court has essentially left the decision to withdraw from both Article II treaties and executive agreements, such as the Paris Agreement, up to sitting U.S. presidents. However, it is possible that future courts could have a different interpretation of the type of question that a case on this issue is presenting. A basis for a decision to rule on a case regarding withdrawal from treaties may be found in Justice Lewis Powell’s concurrence in Goldwater v. Carter. Justice Powell agreed with the Court’s overall decision to dismiss the case, but did so due to the fact that Congress had not formally challenged Carter’s authority rather than due to the political question doctrine. Justice Powell contended that because coming to a decision in Goldwater v. Carter would be possible “without an initial policy determination of a kind clearly for nonjudicial discretion” and because the case involved “neither review of the President’s activities as Commander in Chief nor impermissible interference in the field of foreign affairs,” the question brought to the Court was in fact available for judicial review.[16]
Utilizing Justice Powell’s reasoning for why a question surrounding a dispute between the President and Congress on foreign relations does not constitute a political question, the Court could choose, for the first time, to hear a case related to the withdrawal of the United States from an international treaty, such as the Paris Agreement. By doing so, the Court would significantly clarify a President’s ability to change the course of the nation on international issues of the utmost importance like climate change and potentially add barriers to withdrawal by adding the requirement of Senate approval.
[1] Paris Agreement, United Framework on the Convention of Climate Change, online at http://unfccc.int/paris_agreement/items/9444.php (visited Aug 15, 2017)
[2] Outcomes of the U.N. Climate Change Conference in Paris, Centre for Climate and Energy Solutions, online at
https://www.c2es.org/international/negotiations/cop21-paris/summary.
[3] About the Fund, Green Climate Fund, http://www.greenclimate.fund/who-we-are/about-the-fund.
[4] Malcolm N Shaw, International Law 851 (Cambridge 5thed 2003).
[5] Paris Agreement, Art. 28 paragraph 1.
[6] Noah Feldman, June 2, 2017, Bloomberg View, https://www.bloomberg.com/view/articles/2017-06-02/trump-paris-climate-change-and-constitutional-realities.
[7] Lisa Friedman, “How the world solved the 'shall' crisis and reached a new climate accord,” December 14, 2015, E&E News, https://www.eenews.net/stories/1060029452.
[8] Riley Beggin, “The last time a US president dumped a global climate deal,” June 1, 2017, ABC News, http://abcnews.go.com/Politics/time-us-president-dumped-global-climate-deal/story?id=47771005.
[9] Id.
[10] Feldman, https://www.bloomberg.com/view/articles/2017-06-02/trump-paris-climate-change-and-constitutional-realities.
[11] Mutual Defense Treaty Between the United States and the Republic of China; December 2, 1954, Article X, The Avalon Project, Yale Law School, http://avalon.law.yale.edu/20th_century/chin001.asp.
[12] Feldman, https://www.bloomberg.com/view/articles/2017-06-02/trump-paris-climate-change-and-constitutional-realities.
[13] 444 US 996 (1979)
[14] 369 U.S. 186 (1962).
[15] 444 US 996 (1979).
[16] 444 US 996 (1979)