Both media and negotiators are spending an inordinate amount of time on whether the Paris climate summit starting this week should lead to a “legally binding treaty”. For the EU Commission, it “must be”. For US Secretary of State John Kerry “definitely not”.
For realist scholars of international relations this obsession is puzzling. In the absence of an international police force, why care about whether a commitment is legally binding? For international lawyers, in contrast, it seems to confirm the self-standing moral authority of their discipline. Why else would politicians hackle about bindingness?
The Paris red herring
Yet, “to treaty or not to treaty” is really not the question. Paris will certainly be a treaty and not be a treaty. As a matter of international law, Paris will undoubtedly result in a “treaty”. On the international plane, a text agreed upon by states constitutes a legally binding treaty unless the parties express an intention to the contrary, and this irrespective of the terminology used (treaty, convention, protocol etc.). All COP 21 participants seem to want a legally binding treaty in this sense including the US and China. This explains French President Hollande’s rebuke to Kerry that “if the agreement is not legally binding, there won’t be an agreement”.
As a matter of US constitutional law, in contrast, Paris will, with equal certainty, not result in a “treaty”. What international law classifies indistinctly as “treaties”, the US constitution subdivides in “treaties”, “congressional-executive agreements” and “presidential-executive agreements”, depending on an agreement’s specific content and who in the US can accept it, respectively, 2/3 of the US Senate, simple majority in both houses of Congress, the US President acting alone. Mustering a 2/3 majority for a climate change treaty in today’s Republican-controlled US senate is science fiction. Ergo, when you ask John Kerry, Paris will “definitely not” be a treaty. For others to insist that Paris be a treaty also in this US constitutional law sense would be counter-productive.
“Treaty or not” is a Paris red herring. It risks being used as a ploy to divert attention from the three questions that really matter.
The three questions that do matter
First, the substantive content and ambition of the deal, not only in terms of emission cuts (will the national climate action plans taken together limit temperature rises to 2 or 3.5 degrees Celsius?) but also financing and adaptation.
Second, far more important than whether a particular commitment is “legally binding” in the abstract, is the question of practical follow-up procedures: transparency, reporting, periodic reviews, mechanism to ratchet-up national action plans over time, sanctions, etc. There are plenty of international commitments that are “legally binding” but remain dead letter. Think of Syria or Ukraine but also of certain human rights, labor or environmental commitments. Conversely, a growing number of recently concluded agreements are not “legally binding” but extremely well implemented. Think of non-binding Financial Action Task Force (FATF) recommendations against money laundering (backed up by blacklisting non-complying countries), non-binding international health or technical standards (backed up by expert-accuracy and market forces) or new OECD tax avoidance rules (prominently supported by the G-20 but not as such binding).
Notwithstanding these realities, in a surprising number of settings – climate change but also the UN Human Rights Council currently working on a “legally binding instrument” on business and human rights or the UN General Assembly aiming for a “multilateral legal framework” for sovereign debt restructuring – the idea of a “binding treaty” continues to be portrayed as the holy grail, a silver bullet that will solve all problems. This is wrongheaded. Making something a “binding treaty” at the international level does not, as such, add much. Yet, it takes longer to negotiate and ratify, may reduce the level of ambition, sets the issue in stone and limits the parties involved to states.
Third, buy-in at the domestic level is more important than legal nature under international law. The real worry about not having a “binding treaty” is not so much fear of non-compliance. It is the risk of avoiding domestic control mechanisms: diplomats signing deals without the people’s support. In the US context, avoiding the 2/3 Senate majority rule can hardly be described as a “run on democracy”. Why should 1/3 of US senators be able to block a deal, and why should only the Senate, not the House, have a say? Adopting the Paris outcome as a “congressional-executive agreement”, the way 95% of binding agreements to which the US is a party have been adopted in the past, with a simple majority in both houses of Congress, is more, not less, democratic. Yet, in other instances, adopting non-binding rules at the international level that become de facto binding domestically without Parliamentary scrutiny is a problem. Many financial, health and tax rules referred to earlier have become binding in some way without domestic parliaments approving them. The challenge is therefore to construe innovative ways to ensure that international rules are supported and accountable to the people. Buy-in of non-state actors in the negotiation of the rules at the international level is one way. Making national climate action plans binding domestically, even if they may not be binding at the international level, is another. Binding commitments at the national, rather than international level, would not only come with more effective domestic back-up procedures (national courts and penalties). It would also trigger national legislative or administrative control mechanisms ensuring popular support. Surely, countries can change their domestic laws, but they can also un-sign or leave a binding treaty (the way George Bush un-signed Kyoto or Canada left Kyoto in 2012).
Variable geometry, not one-size-fits-all
If substantive ambition, practical follow-up procedures and domestic buy-in are the three core questions, for each, an important key to success will be variable geometry, not a one-size-fits-all approach.
Substantive commitments will need to be tailor-made to the specifics of each country, not the artificial bifurcation between developed and developing countries enshrined in the Kyoto Protocol. What really matters will be the decision on which commitments within the Paris treaty will be legally binding (e.g. using the word “shall”) or hortatory (using terms such as “should” or “strive”). Here as well, differences may be needed not only between provisions (e.g. emission cuts v. procedural commitments) but also between countries, some countries using the treaty as commitment device, others (such as the US?) using domestic law or binding review procedures to tie their hands. Variation will, finally, be key also to ensure popular support and domestic accountability of the Paris deal: in some countries, or for some provisions, ratification by parliament; for others, buy-in from non-state actors at the international level or control mechanisms under domestic legislative procedures or administrative law.
The best insurance policy to limit temperature rises to 2 degrees Celsius is not “a legally binding treaty”. Rather than spending their time on legal abstractions, Paris negotiators should focus their energy on substantive commitments and credible follow-up procedures at the international level, and maximizing domestic buy-in at home.