On Lawfare, Professor David Wirth addresses complaints from Congress that President Obama overstepped his authority with regard to the Paris Agreement regarding climate change:
… it has triggered cries of protest in the Congress, and especially the Senate, where there have been claims that the President has bypassed the Constitutionally-mandated advice and consent process for a treaty. Along the way, there has been much confusion and misinformation. And President Obama, if anything, may have undershot in the Paris Agreement by failing fully to exercise his Executive authority.
In negotiating the Paris Agreement, the Executive Branch took great pains to remain within the confines of its authority as provided by (1) the President’s plenary powers; (2) federal statutes, particularly the Clean Air Act; and (3) existing treaties, most notably the 1992 Framework Convention on Climate Change , to which the Senate gave its advice and consent in 1992, under the George H.W. Bush Administration, which subsequently ratified the Convention for the United States. Even the most cursory review of the text of the Paris Agreement discloses a careful, purposeful alternation between the mandatory “shall”—indicating a binding obligation governed by international law—and the hortatory “should”—non-binding statements of strictly political intent without legal force. Indeed, the U.S. delegation held up the closing minutes of the conference that adopted the Paris Agreement over the should/shall distinction in an important provision of the Agreement addressing the need for developed country parties to undertake increasingly ambitious emissions reductions goals over time.
Professor Wirth thinks President Obama may have been too cautious:
If anything, U.S. negotiators overcompensated on the side of caution in the negotiation of the Paris Agreement, even to the title of the instrument. The Convention specifically addresses the relationship between that instrument and ancillary protocols. But as long ago as 2009 governments had widely understood that the new agreement could not be called a “protocol” without complicating U.S. participation after the highly charged domestic debate over the earlierKyoto Protocol. More to the point, the many undertakings employing the hortatory “should” can be examined one by one to determine whether they might have been supported by U.S. domestic law. This preference for a non-binding mode is part of a pattern in negotiations undertaken by the Obama Administration, which has the effect of avoiding the creation of internationally legally binding obligations altogether.
The result? No truly binding legal obligations. If his successor decides they don’t like the agreement, any convenient garbage can will do.
