Senate Must Act Now to Disavow President Obama’s Climate Change Treaty

The United States Senate must act urgently to save its treaty approval authority from irreversible damage inflicted by President Obama with the help of the United Nations. Congress has already allowed President Obama to get away with putting in force his nuclear deal with no more than a pro forma review. His administration considered it a “political” arrangement, not a treaty. Now the Obama administration has doubled down with the Paris Agreement on climate change, which was negotiated last December and signed by President Obama in April.

For domestic consumption, the administration contends that the Paris Agreement on climate change is no more than an “executive agreement,” which does not require Senate concurrence. However, for the purposes of making it legally binding on the United States under international law, the Obama administration is colluding with the United Nations Secretariat to designate the Paris Agreement as a treaty. Aside from legally binding requirements to periodically report on each state party's progress in meeting individual country carbon emission reduction commitments previously submitted in writing to the UN, the Paris Agreement contains provisions that appear to impose additional legally binding financial commitments. President Obama presented his instrument of “acceptance” of the Paris Agreement to United Nations Secretary General Ban Ki-moon while attending the G-20 meeting in China. He did so alongside China’s President Xi Jinping, who presented his instrument of “ratification.” President Obama said that he and President Xi decided to “commit formally to joining the agreement ahead of schedule.” By sleight of hand, President Obama sought to transform his so-called “executive agreement,” now deposited as a treaty with the UN and listed as such in the United Nations’ Treaty Collection under the heading “Multilateral Treaties Deposited with the Secretary-General,” into a treaty without Senate approval. The United Nations Office of Legal Affairs is complicit in this shell game. The chief of its Treaty Section told me that “what the United States calls an executive agreement we call a treaty.” He cited as a precedent an obscure treaty known as the Minamata Convention on Mercury, to which President Obama had also bound the United States through executive action without any consideration by the Senate.

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Executive agreements are not binding on successor presidents, who can simply void them. State parties to a treaty, however, can only withdraw according to the terms of the treaty. Article II, Section 2 of the U.S. Constitution requires Senate concurrence for all treaties. In the case of the Paris Agreement, it will take effect when at least 55 countries, whose carbon emissions represent at least 55 percent of global carbon emissions, have presented the legal instruments necessary under their domestic laws to become formal parties. Once the Paris Agreement goes into legal force, a state party can only withdraw upon at least three years notice. President Obama wants to cement his legacy on climate change by imposing treaty obligations on the next president without having gone through the constitutional treaty legislative approval process. He decided to end run the Senate, an executive overreach that not even Mexico’s president dared to attempt. Mexican President Enrique Peña Nieto submitted the Paris Agreement to Mexico’s Senate for approval before presenting Mexico’s instrument of ratification to the United Nations. A full court press is on by the United Nations and the Obama administration to get enough countries formally on board so that the thresholds necessary for the Paris Agreement to go into legal effect will be met before the end of this year. The gathering of many heads of state and heads of government in New York for the UN General Assembly open debate during the week of September 19th will provide a ready-made global platform for that to happen. The United States Senate should convene at the earliest opportune time to consider the Paris Agreement as having been deemed submitted to it as a treaty, since it is branded as such by the United Nations. The Senate can then deliberate and formally disavow Obama’s action in depositing the Paris Agreement with the UN as a treaty if the Senate decides not to approve it with the requisite two-thirds vote. This is important not only because of the problems with the Paris Agreement itself, most notably the huge redistribution of wealth it contemplates from the United States and other developed countries to developing countries. It is also important for the Senate to act so that it sets a clear marker to deter future presidents from proceeding without regard to the Constitution’s separation of powers.