Withdrawal of the Paris Agreement: What International Law Says
by Géraud de Lassus Saint-Geniès*
After weeks of suspense, Donald Trump finally unveiled Thursday his position on the Paris Climate Accord, adopted in 2015 at COP 21 by 195 states. In accordance with his electoral commitment, and contrary to the advice of some of his closest advisers, the US President withdrew the United States from this treaty (ratified by Barack Obama in September 2016 and entered into force November 4, 2016). Currently consists of 147 parties. Beyond the diplomatic and economic implications, this decision raises a number of legal issues.
A withdrawal permitted?
The first is whether international law permits such withdrawal. On this point the Paris Agreement makes it very clear in Article 28 that any party to the agreement may withdraw from it after three years from the date of its entry into force . It is not until 4 November 2019 that the United States can formally notify the Secretary-General of the United Nations of their intention to withdraw from the Paris Agreement. And, according to Article 28, they will have to wait another year for this withdrawal to take effect. Until 2020, the United States will thus remain in the Paris Agreement.
The second issue is the legality of the US President’s decision to halt the implementation of the United States’ greenhouse gas (GHG) emission reduction target immediately upon ratification of The Paris Agreement (less 26% to 28% by 2025 compared to 2005 emissions). It is true that this treaty obliges its parties to adopt an emission mitigation target, but does not oblige them to achieve it. In this sense, these targets are non-binding. However, under Article 4.2 of the Agreement, the parties are still required to take “internal mitigation measures to achieve” their target. Since then, The US decision to cease implementation of its reduction objective could be interpreted as a violation of that provision. But there is room for discussion and to the extent that the Paris Agreement does not provide for any sanctioning mechanism, this possible illegality is unlikely to have any legal consequences for the United States.
The Green Climate Fund
Third, in his speech, Donald Trump said the United States would end its financial contribution to the Green Climate Fund. Established in 2010, this fund is funded by developed countries and aims to finance climate change mitigation and adaptation projects in developing countries. Article 9 of the Paris Agreement emphasizes that developed countries should provide financial resources to assist developing countries in their climate actions. That said, since this Article does not specify how much each State is to pay, and it engages all developed countries, not each developed country individually, its violation can not be inferred merely by inaction by the United States. In 2014, Barack Obama had clearly expressed his country’s intention to pass on US $ 3 billion to the Green Fund by 2018. However, in May 2017, a report from that organization indicated that one-third of this amount had so far been poured. However, from the point of view of international law, an intention is not necessarily a binding legal commitment and Donald Trump’s position on this issue may be legal.
A new treaty
Finally, on the diplomatic level, the fourth question concerns the possibility raised by the United States to renegotiate the Paris Agreement, or even to draw up a new treaty. With regard to possible renegotiation, Article 22 of the Paris Agreement allows any party to propose amendments. However, in order to enter into force, such amendments shall be adopted by consensus or, failing that, by a three-quarters majority of the members of the Conference of the Parties to that Agreement. The possibility of a renegotiation of the Paris Agreement remains legally impossible, given the attachment to this treaty by many States (the European Union and China in the lead). For the same reasons, it is difficult to see how and with whom a new agreement competing with that of Paris could be concluded, Even though international law leaves each state free to enter into discussions to conclude treaties with partners of its choice. In any case, it is still an American delegation hostile to the Paris Agreement, which will continue to participate in the UN climate negotiations in November, the precise aim of which is to specify how Implementation of this treaty. Between adapting and yielding, the international community will have to find the right balance to deal with the United States while continuing its efforts to protect the climate. As from next November, to participate in the UN climate talks, whose objective is precisely to specify the modalities of implementation of this treaty. Between adapting and yielding, the international community will have to find the right balance to deal with the United States while continuing its efforts to protect the climate. As from next November, to participate in the UN climate talks whose precise objective is to specify the modalities of implementation of this treaty. Between adapting and yielding, the international community will have to find the right balance to deal with the United States while continuing its efforts to protect the climate.
Thus, although it certainly runs counter to the “spirit” of the Paris Agreement, the US position is not flagrantly contrary to international law, at least for the time being, and no sanction Is not to be expected. This is all the more frustrating for anyone who regrets this line of fracture between the United States and the rest of the world on this issue of climate change.
*Géraud de Lassus Saint-Geniès is lecturer and researcher in climate change law at Laval University’s Faculty of Law.