Exiting Paris: What the Climate Accord Teaches About the Features of Treaties and Executive Agreements.

• Author: Kontorovich, Eugene

In 2017, President Trump announced the United States' intention to withdraw from the Paris Climate Accord. This article explores why the distinction between treaties and executive agreements cuts against treating the Accord as binding on the United States. The Accord's unusual features--a protracted withdrawal period and broad multilateral structure--preclude it having an effect as a sole executive agreement. These features should be regarded as signs that an international agreement is a treaty requiring Senate ratification.

Introduction I. The Role of Executive Agreements II. Delayed Withdrawal provisions in Executive Agreements II. Multilateral Nature and Other Parties' Practice A. Formal Structure of the Agreement B. Other Parties Treat it as a Treaty Conclusion Introduction

President Barack Obama's signing of the Paris Climate Accord (1) generated significant debate as to whether it should have been submitted to the Senate for ratification as a treaty. (2) The debate has focused on numerous features of the agreement, such as its creation of domestic obligations, (3) the treatment of prior climate agreements, (4) and other factors. (5) President Trump's announcement of the U.S.'s intention to withdraw from the agreement has renewed focus on whether Obama's entering into the agreement bound the U.S. in the first place. (6)

This essay identifies several previously unexamined features of the Paris Climate Accord that cut heavily against it being treated as the kind of arrangement that can be entered into by a president on his own authority. First, it has a four-year waiting period for withdrawal, quite unlike traditional executive agreements. (7) Second, it is a large multilateral deal, (8) while the typical executive agreement is bilateral. (9) Moreover, the other parties to the Agreement have invariably regarded, for the purposes of their municipal systems, as a treaty that requires domestic ratification. (10) Whatever that means for U.S. constitutional purposes, it does suggest other countries should hardly protest if President Trump merely follows their example and refuses to give it legal authority in the absence of ratification. These features --a protracted withdrawal period, and broad multilateral structure are extremely unusual, or unprecedented, for sole executive agreements. (11) This essay explains why they go to the heart of the treaty/executive agreement distinction.

Because of these features, President Obama's signing of the treaty without Senate ratification means that the Accord does not obligate the U.S. internationally or domestically. (12) While this may seem a moot point given President Trump's withdrawal, it is relevant for reasons particular to Paris, and more general ones. The announced U.S. withdrawal generated wide criticism domestically and internationally. (13) President Trump's announced exit will not take effect until a few months before the end of his term, and can be reversed at any point before then. (14) Moreover, a future Democratic president is likely to promptly "rejoin" the Accord, but again without the Senate's advice and consent. None of these actions would, this essay argues, make the Accord binding on the U.S. Moreover, ambitious multilateral agreements will likely become more common for environmental and other matters in the foreseeable future. The Senate will likely remain reluctant to ratify them, and thus presidents will more frequently seek to enter into such agreements through their authority to make executive agreements. In short, the Paris Accord is the first but not last of such attempts. This essay identifies several features that such executive agreements cannot have; that is, features that would require an agreement to be submitted to the Senate before it could have legal effect.

Part I of this essay briefly sketches the constitutional distinction between treaties, congressional-executive agreements, and sole executive agreements. Part II examines the Paris Accord's uniquely onerous withdrawal provisions and shows why they preclude treating it as a SEA. Part III examines the Paris Agreement's multilateral nature and shows how it does not accord with the past practice for SEAs.

1. The Role of Executive Agreements

   The Constitution allows the president to "make Treaties," subject to the consent of two-thirds of the Senate. (15) Such treaties fully bind the U.S. and have a domestic status equivalent to statutes. (16) At the same time, it is well accepted that there is a class of international agreements that the president can commit the U.S. to without invoking the treaty process. (17) Indeed, the vast majority of America's international agreements are not made through the constitutional treaty process. (18) Such agreements are of two kinds. "Congressional-executive agreements" are entered into by the president pursuant to legislative authorization. (19) While they are not ratified by two-thirds of the Senate, they have a different kind of supermajority support--majorities in both houses of Congress. (20) Given the broad authorities of the president and Congress in matters of foreign trade and policy, such agreements are not controversial. (21)

   Finally, presidents have entered into many agreements without invoking the treaty process or congressional authorization. (22) However, the constitutionally permissible scope of the "sole executive agreement" ("SEA") category is a matter of great dispute. (23) Such agreements are typically justified by the president's invocation of his inherent constitutional powers, such as recognition and foreign relations, or as commander-in-chief. (24) They typically deal with low-level bilateral issues of cooperation and take the form of exchanges of letters, memoranda of understanding, and the like. (25) While the use of SEAs is both venerable and vast, the precise line between what international agreements can be entered into by the president on his own authority and those that require congressional action remains vague.

   For most purposes, SEAs are not controversial. Yet important agreements raise the issue of the constitutionally permissible scope and effect of SEAs. Scholars have suggested that the distinction between treaties and SEAs lies in the "length and importance of the agreement." (26) As this essay shows, the Paris Climate Accord differs in kind and degree from prior SEAs on both these criteria, and instead looks more like a treaty.

   While there are no clear rules about the treaty/executive agreement, the Paris Accord has some features, not yet analyzed in this context, that do not follow the pattern of past SEAs. Simply pointing out that there are such things as SEAs does not mean the Paris Accord is one of them, given that it departs from the SEA model in significant ways.

2. Delayed Withdrawal provisions in Executive Agreements

   One formal feature of the Paris Climate Accord distinguishes it from the extensive past use of SEAs--the withdrawal provision. This Part shows that distinction has constitutional significance and places the Paris Accord outside the accepted constitutional scope of SEAs.

   The Paris Accord has a four-year delayed exit period: at the time the agreement comes into force, a state party to the deal can only withdraw after four years. (27) There is no constitutional limit on delayed withdrawal periods in treaties (28)--ten years is the standard waiting period under U.S. bilateral investment treaties. (29) However, typical withdrawal periods are much shorter. (30) Most treaties do not provide for any waiting period for withdrawal. (31) However, the Vienna Convention on the Law of Treaties provides one year as a default withdrawal period for treaties containing no explicit withdrawal provisions. (32) But many treaties do have such terms--almost invariably shorter than four years. (33) Indeed, six months or a year are the most common waiting periods. (34)

   However, withdrawal provisions for SEAs look quite different. In that context, the Paris Accord restrictions are truly remarkable, and go far beyond the kind of "thin" agreement allowed under sole executive authority. The justification of SEAs is that they are an inherent part of a president's foreign affairs powers because the conduct of foreign affairs requires the frequent formal arrangements between countries. (35) But he can also unmake them as needed. (36)

   Indeed, the "temporary" nature of executive agreements has long been seen as one of their defining and self-limiting features. (37) President Theodore Roosevelt took the view that an SEA does not even bind the signing president's successors unless explicitly renewed. (38) While extensive usage appears to reject that strong position, there is also no support for its converse--that an SEA can bind or restrict the ability of a successor to exit it. (39)

   A protracted withdrawal period in an SEA would allow one president to unilaterally pre-commit his successor and limit the latter's powers. Such action could be deliberate. Numerous news accounts suggest that the Paris Agreement's four-year period was not accidental. (40) Rather, it was specifically designed to block U.S. exit in the event of a possible Republican presidential victory in 2016. (41) Indeed, the narrow window for the U.S. exit President Trump seeks to employ (from Nov. 4, 2020 until the inauguration of the next president) may largely have been an unintended consequence of the Agreement receiving the necessary number of ratifications to enter into effect faster than had been...