Legal Issues in the Negotiation
of the Paris Agreement
Dan Bodansky
Arizona State University
12th UEF-UNEP Course on Multilateral Environmental
Agreements
November 2, 2015
November 3, 2015
Legal issues
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Overview
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Legally-binding:
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Legally-oriented provisions
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What does it mean?
Does it matter?
Legal form of agreement
Legal character of particular provisions
Compliance
Entry-into-force
US ratification
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What does it mean to be legallybinding?
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5 distinct issues
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Legal form of agreement
Legal character of a provision
Precision of a provision
Justiciability
Enforcement
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Does legally-binding matter?
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Pros
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Cons
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Greater domestic buy-in
Stronger internal sense of obligation
Greater reputational costs for violations
Capable of judicial application (if a
court with jurisdiction exists)
Less participation
Less ambition
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Other factors influencing
compliance
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Precision
Transparency and accountability
mechanisms
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10 propositions ….
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…. drawn from legal experts
meetings
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Propositions 1-4:
Legal form of agreement
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Durban Platform
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Parties to develop “a protocol, another
legal instrument or an agreed outcome
with legal force under the Convention
applicable to all Parties”
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1. Legal form of agreement
The Paris outcome must include an
agreement that falls within the scope
of the Vienna Convention on the Law
of Treaties.
VCLT defines “treaty” as an agreement in writing
between states governed by international law.
COP decisions, by themselves, wouldn’t satisfy
the Durban Platform’s requirement that the
Paris outcome have legal force.
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2. Type of agreement
The UNFCCC provides several bases for the
COP to adopt a legal agreement.
The COP could adopt a legal agreement pursuant to:
• Article 15 on amendments
• Article 16 on annexes*
• Article 17 on protocols, or
• Article 7, which gives the COP authority to exercise such other
functions as are necessary to promote the objective of the
Convention.
*But Article 16 limits annexes to lists, forms, and other material of
a descriptive nature that is of a scientific, technical, procedural or
administrative character.
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3. Bases for COP action
The COP need not specify under which
article it adopts the Paris agreement.
COP decision adopting Kyoto Protocol didn’t
identify the article pursuant to which the COP
was acting.
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4. Title of agreement
The COP can call the Paris agreement
whatever it likes.
The title of the Paris agreement is legally
irrelevant to whether the agreement is within the
scope of the Vienna Convention on the Law of
Treaties.
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Propositions 5:
Legal character of specific provisions
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Procedural provisions:
Mitigation: Submitting, maintaining
updating NDCs
 Communications re: implementation of
NDCs, adaptation measures, finance
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Substantive provisions
Mitigation: implement/achieve NDC
 Adaptation planning, cooperation
 Finance
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5. Legal character of specific
provisions
The Paris agreement can include provisions
that do not create legal obligations. Treaties
often contain a mix of mandatory and nonmandatory elements.
VCLT: pacta sunt servanda
Annex I target in UNFCCC art. 4.2 stated as a nonbinding aim.
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Proposition 6-7: Legal character
and housing of NDCs
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NDCs could be housed
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Inside the agreement, e.g., in an annex
that is designated an integral part of
agreement
Outside the agreement, e.g., in a
registry, INF document, website, COP
decision
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6. Legal character of NDCs
The legal character of NDCs will
depend on the commitments in the
agreement, not on where NDCs are
housed.
• NDCs could be housed inside the agreement
(e.g., in an annex or schedule), or outside the
agreement (e.g., in INF documents, website)
• Even if inside core agreement, NDCs could be
non-binding; conversely, even if outside core
agreement, could be binding.
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7. Housing of NDCs
But where NDCs are housed may have
practical implications.
• If NDCs an integral part of the agreement,
then part of the package that states ratify.
• If NDCs not in agreement, then updating
them may be easier.
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Proposition 8: Differentiation
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November 3, 2015
Does Durban Platform require
continuation of UNFCCC annex
structure, since the Paris agreement
will be “under” the Convention?
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8. Under the Convention
The Paris agreement must be adopted
pursuant to the UNFCCC and must not be
inconsistent with it. But Paris agreement
need not be modeled on the UNFCCC or
have the same structure.
• 3 provisions of UNFCCC (Arts. 2, 7.2 and 14)
expressly apply to related legal instruments.
• In addition, principles of UNFCCC to guide
development of the Convention, including
Paris agreement.
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Propositions 9-10
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Institutional arrangement
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Entry into force
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Use existing institutions or create new
ones?
Single trigger: number of states
Double trigger: number of states + %
of global emissions
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9. Institutional arrangements
The Paris agreement could use the
same institutions as the UNFCCC or
create new ones.
• Some related legal instruments establish
separate institutions (Vienna ConventionMontreal Protocol; UNFCCC-KP)
• Others use same institutions, with voting rules to
ensure decision-making made by parties to
instrument (LRTAP, MARPOL)
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10. Entry into force
The Paris agreement could make entry into force
depend on one or more parameters, including :
a. a minimum number of parties;
b. specific parties;
c. an emissions threshold (defined as a percentage
of global emissions or in absolute terms); or
d. a specified date.
KP requires acceptance by 55 parties including Annex I
parties representing 55% of total Annex I CO2
emissions in 1990
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US Acceptance of the 2015
Agreement
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If Paris agreement political rather in character, then no
issue about approval process.
Ways of joining international legal agreements
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Article II treaties: advice and consent by 2/3 of Senate
Executive Agreements
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Congressional-executive agreements: approval by Congress
Treaty-executive agreement: authorization by existing treaty
Presidential-executive agreement: President relies on existing
constitutional and statutory authority
President chooses among these alternatives
Choice among domestic approval options does not affect
legal status of agreement
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Article II Treaties
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Advice and consent by 2/3 of
Senate
Many MEAs adopted as treaties
Even if Paris agreement adopted as
treaty, would not be self-executing
> would require implementing
legislation if goes beyond existing law
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Congressional-Executive
Agreements
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Approval by Congress
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Approval can be ex ante or ex post
Represent vast majority of
international agreements to which US
a party, including WTO agreements,
NAFTA
Largely interchangeable with treaties
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Presidential-Executive Agreements
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President accepts agreement based on
existing constitutional authority
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Some MEAs have been adopted as
presidential-executive agreements
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Boundaries of presidential authority uncertain
But Supreme Court has never struck down a
presidential-executive agreement as exceeding
President’s authority
Long-Range Transboundary Air Pollution
Convention (LRTAP) and Gothenberg Protocol
Minamata Mercury Convention
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Legally-Binding Emissions Target
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When US joined UNFCCC in 1992, Senate and
President expressed expectation that future
agreement containing legally-binding target
would be submitted to the Senate
Acceptance by President of agreement
containing legally-binding emissions target
would go beyond existing precedents such as
LRTAP or Mercury Convention, because:
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US law does not currently establish a domestic
emissions target
Existing law may or may not provide a sufficient
basis to implement 26-28% emissions target in
United States’ NDC
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Financial commitments
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President could accept an agreement that:
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Reiterates existing commitments in the UNFCCC
Establishes non-binding aims
Establishes procedural commitments, such as an
obligation to report on financial contributions
Establishes modalities for providing support (e.g.,
regular pledging process)
But Congress has the power of the purse
>> accepting an agreement containing new legally binding
financial commitments may require approval by Senate or
Congress
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Procedural commitments
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President on relatively firm legal ground accepting a procedurallyoriented agreement that obligated parties to:
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Submit and maintain an NDC
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Provide information
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Use common accounting standards
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Report on implementing measures
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Periodically update NDC
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Undergo international implementing review
Arguments for Presidential authority
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Independent constitutional authority over foreign affairs, communicate
with other governments
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Commitments elaborate UNFCCC, which Senate approved
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Commitments consistent with and complement existing US law
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Could President’s Decision Be Overturned
by Courts or Future President?
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Judicial challenge would face serious obstacles
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Withdrawal by future President
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November 3, 2015
Political question doctrine: Courts have held that choice
among domestic approval options a political question
Standing: Lawsuit could be brought only by someone who
can show a particularized injury
Domestic approval process does not affect ability of US to
withdraw
As a matter of international law, withdrawal governed by
terms of treaty and by Vienna Convention on Law of Treaties
As matter of domestic law, a future president could
withdraw from the Paris agreement regardless of how it is
adopted, and Congress could override it by enacting
inconsistent statute
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