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Saturday, April 17, 2010

International Agreements on Climate Change: Selected Legal Questions

Emily C. Barbour
Legislative Attorney

The United Nations Framework Convention on Climate Change (UNFCCC) opened for signature in 1992 and soon thereafter was ratified by the United States. The UNFCCC does not set greenhouse gas (GHG) emissions reduction targets, and during ratification hearings, the George H.W. Bush Administration represented that any protocol or amendment to the UNFCCC creating binding GHG emissions targets would be submitted to the Senate for its advice and consent. 

The Kyoto Protocol (the Protocol) to the UNFCCC was intended as a first step towards implementing the UNFCCC. To that end, it sets quantitative emission reduction targets for the high income countries listed in its Annex B. The Protocol's goal is to reduce each parties' overall emissions by at least 5% below 1990 levels by 2012. Although the United States signed the Protocol in 1998, it did not submit the Protocol to the Senate. The George W. Bush Administration announced in 2001 that it would not pursue U.S. accession to the Protocol. The Obama Administration has followed this policy. 

In 2007, the UN Climate Change Conference in Bali adopted a framework for negotiations over the post-2012 climate regime. It established two tracks for negotiation: (1) a track by which Kyoto Protocol parties would pursue an amendment to the Protocol for a "second round" of emission targets for its Annex B parties, and (2) a track by which UNFCCC parties would set GHG mitigation targets or actions for all parties. However, consensus under either track proved difficult to achieve at the 2009 Copenhagen Conference of the Parties. The outcome, the Copenhagen Accord (the Accord), is consequently considered a non-binding political agreement. The Accord allows each high income party listed in Annex I of the UNFCCC to define its own GHG emissions target level. "Non-Annex I" parties wishing to associate with the Accord must identify and commit to undertaking "nationally appropriate mitigation actions," which may receive international support subject to certain international reporting requirements. 

The labels "convention," "protocol," and "accord" are not clear indicators of whether these three climate change agreements are binding internationally and/or domestically. Under international law, an agreement is considered binding only if it conveys the intention of its parties to create legally binding relationships and has entered into force. However, some have suggested that enforceability, rather than intentions, should govern whether an agreement is "legally binding." 

Under U.S. law, a legally binding international agreement may take the form of a treaty or an executive agreement. In order for the United States to enter a treaty, the agreement must be approved by a two-thirds majority of the Senate and subsequently be ratified by the President. An executive agreement does not require the Senate's advice and consent in order to be legally binding. Historically, executive agreements have arisen in a limited set of circumstances, and certain subjects, including significant global environmental issues, have traditionally been handled as treaties that require the Senate's approval. 

Of the three agreements discussed, only the UNFCCC and the Kyoto Protocol are considered legally binding agreements under international law, and the United States is bound only by the former. The United States has, however, indicated its intent to associate with the Copenhagen Accord. In doing so, it voluntarily committed to reduce U.S. emissions by 17% below 2005 levels by 2020. The Accord does not implicate the treaty power of Congress, which will likely shape the domestic effect of the Copenhagen Accord through appropriations and lawmaking. The Accord does not appear to empower the Executive to implement it solely by agency actions.

Date of Report: April 12, 2010
Number of Pages: 22
Order Number: R41175
Price: $29.95

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