an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The constitutionally critical, last-minute correction to the Paris climate change accord
Early on Saturday, in Paris, the Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change released this document, which was represented to be the "final draft" of the historic climate-change agreement. French Foreign Minister Laurent Fabius, who was heading the United Nations conference, called it “the best possible text,” one that resolved points of contention that had taken negotiations "into overtime." “In this room you are going to be deciding on an historic agreement,” Fabius told the nearly 200 delegates. “The world is holding its breath. It counts on all of us.”
No so fast. The final plenary meeting opened . . . but was suddenly, and mysteriously, suspended. Everyone's breath would have to be held a bit longer.
What was the problem?
Take a look at page 21 of the purported "final draft," and Article 4.4 in particular:
Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.
According to that "final" version, whereas "developing" country Parties "should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances," the developed country Parties--including the United States--"shall continue taking the lead by undertaking economy-wide absolute emission reduction targets."
The word "shall" apparently had been added at the last minute--reportedly a mistake made by "fatigued" staffers. It was only a tiny, one-word change . . . yet it was a scrivener's error the United States could not live with.
Why not? Because the word "shall" would have established a legally binding obligation under international law--one that the U.S. delegates apparently thought would (as a matter of U.S. constitutional law) require the approval of either two-thirds of the Senate or majorities of both Houses of Congress. And such legislative approval is, to say the least, not forthcoming anytime soon. (I explained the critical constitutional difference between nonbinding and binding agreements--in the context of the recent Joint Comprehensive Plan of Action regarding Iranian nuclear capabilities--in this post with Jack Goldsmith, in the second half of this post, and in this post.) [UPDATE: Actually, the determinative question is not so much whether the agreement as a whole is in some sense "binding," but instead whether any of particular provisions of the agreement impose the sorts of binding obligations that would trigger the requirement in U.S. constitutional law for Senate or congressional approval. As Daniel Bodansky writes, in a very useful, concise paper on such questions in the context of the Paris accords: "Treaties often contain a mix of mandatory and non-mandatory elements. . . . [T]he Paris agreement might contain a mix of mandatory and hortatory provisions relating to parties’ nationally determined contributions and other issues. For example, it might include commitments that parties maintain, report on, and update their NDCs throughout the lifetime of the agreement, but make the achievement of NDCs only hortatory." As one U.S. diplomat is quoted as saying, the Paris accord is not subject to Senate or congressional approval because "[t]he [emissions] targets are not binding; [and] the elements that are binding are consistent with already approved previous agreements.”]
Back in October, in fact, the State Department had explained to Senator Corker, Chair of the Senate Foreign Relations Committee, that the "intended nationally determined contribution reflected in the U.S. 'INDC' submission [was] not intended to constitute an obligation the United States must fulfill under international law, and the United States considers that the Paris agreement should reflect that approach more broadly." Accordingly, the State Department wrote, the United States is not “seeking an agreement in which Parties take on legally binding emissions targets.”
Accordingly, when the U.S. delegation tripped across the word "shall" on Saturday afternoon, Secretary Kerry insisted that Article 4.4 revert back to use of the word "should"--which would make the first sentence of Article 4.4 a nonbinding goal, rather than an obligation, of developed country parties such as the U.S., and thus something to which the President, acting alone, could commit the United States.
The French reportedly warned that if the United States opened up the document to further changes, the whole, delicate deal might fall apart, seeing as how other nations--India, in particular--were also seeking last-minute changes.
For Kerry and the United States delegation, however, it was understandably a nonnegotiable demand. As the Secretary would say in his press briefing in Paris later last night:
[T]he bottom line is that when I looked at that, I said, “We cannot do this and we will not do this. And either it changes or President Obama and the United States will not be able to support this agreement.” And we made it crystal clear that every text up until this particular one had a different wording. So it wasn’t hard for them to realize that somebody had made a mistake, and they accepted responsibility for it. . . . So we kept faith with our own negotiating standards and what we promised to Congress and the American people.
And so the wording of the first sentence of Article 4.4 was changed from "shall" to "should"--see the "revised" version of the "final draft," released late yesterday . . . and that would appear to make all the constitutional difference.*
* Will it make a practical difference, in terms of parties' compliance with the agreement? Hard to say. As Daniel Bodansky writes: "Thus far, it has been next to impossible to answer this question empirically. To do so, one would need to hold all other factors constant, and vary only the legal form of an agreement. Despite significant efforts over the last two decades to determine the significance of legal bindingness internationally, we still do not have any definitive answers." Posted
by Marty Lederman [link]