China’s warning against a U.S. withdrawal from the Paris accord is likely the first of many protests from the foreign diplomatic community as climate negotiations wrap up this week in Marrakesh, Morocco.
President-elect Donald Trump has promised to “cancel” the Paris agreement and end funding for the United Nation’s climate change programs.
Arguments that a Trump administration must wait at least three years to withdraw from the Paris agreement – as well as provide a one year notice – are incorrect. For a country to be bound by the Paris agreement, the United Nations Framework Convention on Climate Change (UNFCCC) requires a government to complete all national procedures for the agreement’s ratification.
President Barack Obama’s signing of the agreement in September was not sufficient. Under the U.S. Constitution the authority to ratify treaties lies with the Senate. Until the Senate votes, the United States remains outside of the Paris agreement.
The White House’s position that Paris is simply an executive agreement and not a treaty has been a matter of political convenience, especially given the level of Republican opposition in the Senate.
Any reasonable person would find that the State Department’s guidance on determining if an agreement needs Senate approval strongly indicates that Paris is, by definition, a treaty. Both Hillary Clinton’s campaign and environmentalists have treated it as such.
The other major economies of the world, including the European Union and Japan, have also viewed Paris as a “binding” treaty, one that requires the approval of their legislatures before it can take effect.
Foreign governments should not be shocked at the current turn of events. Republicans gave plenty of warning – in the form of diplomatic briefings, letters, resolutions, and other communications – that the Paris agreement required Senate ratification. It’s not the fault of the President-elect that the international community chose to ignore those warnings.
Rather than ask the Obama administration to follow the constitutionally mandated process of obtaining approval of two-thirds of the Senate, the international community took the opposite tack.
As polls in the presidential race tightened, the international community worked feverishly with the White House to put in place the agreement as quickly as possible before the election – an attempt at “Trump proofing” it and locking in the United States for four years. Unquestionably, those foreign governments were accomplices in the Obama’s administration apparent violation of the U.S. Constitution.
An unintended but foreseeable consequence of this reckless behavior is the potential U.S. withdraw from the entire UNFCCC. President-elect Trump could decide to end America’s participation in the framework convention, fulfilling a campaign promise to “cancel” Paris and end funding for U.N. climate efforts altogether.
Because the UNFCCC has been in force since 1994, U.S. withdraw from the framework could take effect by January 20, 2018, assuming proper notification. A party is considered out of the Paris agreement automatically if it removes itself from the underlying UNFCCC. Unlike ratification, the White House can end America’s participation in a treaty unilaterally – as it did with the anti-ballistic missile treaty in 2002.
Such action would certainly provoke a harsh rebuke from foreign governments, Democrats, and environmentalists. Threats of carbon tariffs and trade wars would abound with some governments linking their cooperation with the United States on security and economy to action on climate.
Critics would also argue that the international climate agenda would advance without U.S. participation, but those statements would likely ring hollow. A withdraw by the United States would most likely deal a mortal blow to international mitigation efforts and, in the process, cripple carbon programs in other countries.
Even if Democrats regain control of the White House in 2020, a formal rejoining of the UNFCCC by the United States is remote, given the two-thirds threshold in the U.S. Senate for ratification.
In the last days of the Marrakesh climate talks, diplomats should reflect on their role in helping the Obama White House create a possible worst-case scenario for the climate agenda. They were given fair notice from Republicans that the current President could not bind the United States to the Paris agreement without Senate approval.