The Legal Structure of the Paris Agreement

“Please recycle.” These were the first words that I noticed when I printed out the Paris Agreement from the United Nations Framework Convention on Climate Change website – stamped conspicuously in the lower right of the first page. These words are of course fitting for an agreement on climate change and greenhouse gas emissions. But they are also a good emblem for the Paris Agreement in other ways. Much of the content of the Paris Agreement is not new. As Dan Bodansky has aptly observed, “in essence, what the Paris Agreement does is tie a treaty ribbon around…key elements of the [earlier] Copenhagen Accord.” In other words, the Paris Agreement is built largely from recycled materials, but with a new legal design. What went into this legal design? As a scholar of both U.S. foreign relations law and public international law, a striking thing to me about the Paris Agreement is how consciously it is crafted to navigate the opportunities and constraints of both bodies of law. This is manifested most notably in the Agreement’s different treatment of substance-based commitments and process-based commitments. Consider, for example, the first sentence of Article 4(2) of the Agreement, which states: Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. This sentence deals with both substance and process. Substantively, each party is to “intend” to achieve a certain nationally determined contribution to emissions reductions. But this language does not give rise to a binding international legal commitment to achieve any particular contribution, even the one that the party “intends” to achieve. Procedurally, each party “shall” (which, in legal jargon, means “must”) communicate to the other parties what its intended contributions are. By contrast, this procedural language does give rise to a binding international legal commitment. It may seem odd to mandate process but not substance. But there are two likely reasons why this was done. First, countries may be more willing to bind themselves as a matter of law to process-based commitments rather than to substance-based commitments because they may feel more confident of their ability to deliver on their process commitments. This is especially true if the substance-based commitments are going to be meaningful ones; that is, countries might be less willing to set bold goals for emissions reduction if they are going to be in violation of international law if they fail to meet those goals. Second, and probably even more significant, this different treatment between substance and process was important to U.S. negotiators as a matter of constitutional law. For international law purposes, the Paris Agreement is a treaty – an agreement that is intended to be legally binding on the countries that join it (once the Agreement enters into force). Yet for U.S. constitutional law purposes, there is no chance that the U.S. Senate would advise and consent to the Paris Agreement by the two-thirds majority called for in the Treaty Clause. President Obama’s negotiating team therefore insisted that the international legal obligations imposed by the Paris Agreement be ones that, in the view of U.S. executive branch lawyers, the United States can join through sole Presidential action without needing the approval of the Senate or Congress. Process-based commitments are more likely to meet this standard than are substance-based commitments. Hence the extended last-minute showdown over whether the text of another substantive part of Article 4 was to use the more aspirational word “should” or the more binding word “shall.” Choices in terms of the level of legal commitment can be seen throughout the Paris Agreement. These choices were clearly important to the negotiators. What remains to be seen, however, is how much these particular choices are going to matter to parties to the Agreement once it enters into force. It would be a mistake to think that the non-binding nature of some of the commitments makes these commitments toothless. As David Zaring and I have written, many crucial aspects of international cooperation function through agreements that are legally non-binding but practically important. As an example, most international financial cooperation works this way. If parties take their commitments seriously and insist that others do so, then those commitments will have meaningful effect. It would similarly be a mistake to think that the binding nature of other commitments makes these commitments unbreakable. International law is not always taken as an absolute imperative, and the Paris Agreement does not identify strong penalties for violating its legally binding terms. The overall test for the effectiveness of the Paris Agreement will lie in how its commitments – both binding and non-binding – are implemented and if they are obeyed. The answer will probably vary across these commitments, especially since the Agreement makes a point of spreading its approaches to monitoring implementation. For example, the Agreement contemplates the use of multiple “mechanisms,” including the “Technology Mechanism,” the “Financial Mechanism,” and a compliance-related mechanism that is to “consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial, and non-punitive.” There is even a decision – this one not in the Agreement but simply in the decision of the parties – to appoint “two high-level champions” to encourage parties to take action to combat climate change. Even if everything works, the consensus seems to be that the Paris Agreement will not do nearly as much as is needed with regard to slowing climate change. But it will make progress, and hopefully it will not stand in the way of efforts to combat climate change that are underway under other auspices. The Paris Agreement, although not perfect, should make things better than before. This essay is part of The Regulatory Review’s four-part series, Will the Paris Agreement Make a Difference