Bar News - July 19, 2017
Federal Practice, Bankruptcy & International Law: When Can the U.S. Withdraw from a Treaty?
By: Alexandra A.K. Meise and Albina Gasanbekova
President Donald J. Trump on June 1 announced that the United States would withdraw from the Paris Climate Agreement – a historic global treaty that commits nations to prevent catastrophic climate change by lowering their carbon emissions. A few weeks earlier, he announced plans to renegotiate the North American Free Trade Agreement (NAFTA).
Both climate change and trade were hotly debated issues during the presidential campaign, so neither of these policy decisions was a surprise. Contrary to the tenor of both announcements, however, withdrawal from international treaties is extremely rare and is accomplished by various procedures.
Before delving into the specifics of how each policy might be effectuated, a quick primer in is order on how treaties operate within our domestic and international legal systems.
Treaties are regarded differently under international law than under U.S. law. Under international law, once a country signs a treaty, it is bound not to act contrary to the object and purpose of the treaty, or its express provisions, even if it has yet to ratify (formally adopt) it. If a country seeks to “un-sign” a treaty it has not yet ratified, it must give appropriate notice of that intent to the other signatories, as provided in the treaty, and to the United Nations. The same goes for withdrawing from a ratified treaty: until the country seeking withdrawal gives proper notice and follows any enumerated withdrawal requirements, it remains bound to the treaty under international law.
United States law is very different. First, the United States does not approach all treaties in the same way. United States law distinguishes “treaties” from “congressional-executive agreements” and “sole executive agreements.” All three are considered treaties under international law, but under US law each becomes legally binding by a different process and withdrawal requires different steps.
Under Article II, section 2 of the Constitution, a treaty made by the President enters into force after “advice and consent” by the Senate, requiring approval by two-thirds of Senators voting. Such ratification may occur regardless of whether the international agreement is called a treaty, a convention, an agreement, or another name.
A congressional-executive agreement made by the President, covering matters the Constitution explicitly places within the joint powers of Congress and the President, requires approval by majority vote of the House and Senate.
A sole-executive agreement, which covers matters expressly within the President’s constitutional powers or delegated by Congress to the President, are binding immediately upon the President’s signature. (Notably, not all “executive agreements” are “treaties” for Constitutional purposes; this article focuses on agreements that are.) However, as the Supreme Court has noted, some of these agreements require subsequent Congressional legislation in order to create domestic obligations.
Under US law, only subsequent federal legislation or a subsequently ratified treaty may undo a ratified “treaty.” This can create some interesting situations. In theory, a treaty that has been ratified and implemented through subsequent legislation could be withdrawn under international law by giving proper notice and following required steps, but US courts could still enforce the treaty’s provisions, if the implementing federal law remains in place. Conversely, subsequent domestic law may undo a treaty domestically, but unless the United States has given proper notice and has followed withdrawal steps required under international law and identified in the treaty, it may still bind the United States internationally.
Shift in Foreign Policy
This brings us to President Trump’s desired shift US foreign policy away from both the Paris Climate Agreement and NAFTA, both of which are congressional-executive agreements. The Paris Agreement addresses threats posed by climate change by calling upon its 195 signatories to commit to taking active steps in pursuit of keeping the global average temperature from rising 20 Celsius (3.60 Fahrenheit) or more above preindustrial levels. The agreement is just the latest step in the international climate regime established by the United Nations Framework Convention on Climate Change (UNFCCC), which became a treaty under U.S. law when signed by President George H.W. Bush.
To accomplish the 2-degree goal, every party to the agreement pledges to stabilize its carbon emissions by setting a “nationally determined contribution.” For instance, the United States has agreed to reduce greenhouse gas emissions by 20-28 percent below 2005 levels by 2025. While the treaty obligates all parties to report to other state parties on steps taken to reduce emissions, there are no international legal consequences if a country fails to meet its emission cuts targets.
According to the US Office of the Legal Advisor and many legal scholars, President Obama’s authority to sign the Paris Agreement came from prior Congressional action (including the Clean Air Act), the UNFCC treaty, and Constitutional executive powers. Un-signing the Paris Accord cannot undue those prior Congressional and treaty commitments.
Even if Trump can withdraw using his executive power, withdrawal requires more than simple notice. The agreement’s Article 28 stipulates that signatories cannot announce their intent to withdraw until November 2019, three years after the agreement entered into force. Then, they must wait at least one year to effectuate the withdrawal. So the United States may not exit the agreement until at least November 2020. Moreover, the US is still bound to the UNFCC, which already obligates the US to engage in procedural steps aligned with the Paris Agreement, including collecting and reporting on emissions and climate data.
NAFTA is a multi-lateral trade agreement between Canada, the United States, and Mexico, signed in December 1992. Following signature, Congress enacted provisions of NAFTA into domestic law through the North American Free Trade Agreement Implementation Act. Under NAFTA’s express provisions, a party seeking to withdraw under international law, may – but is not obligated to – do so six months after it notifies the other parties of its intent to withdraw. But under US domestic law, scholars have argued that the President could not withdraw fully from the agreement as a matter of domestic law until Congress repeals the Implementation Act.
Since the election, Trump has moved from calling for outright withdrawal from NAFTA to renegotiation. He so informed Congress in April, which triggered a 90-day period of congressional-executive consultation on goals for the renegotiation. By mid-August, the United States may begin negotiations with Canada and Mexico.
The President’s expressed opposition to multi-lateral trade agreements and intention to withdraw from the Paris Agreement have caused concern in the international community as to what this may mean for US foreign policy and participation in international agreements going forward.
Respect for the international law requirements for withdrawal from treaties, including notice and renegotiation provisions – inconvenient as they may seem – are important steps to maintaining America’s commitment to the rule of law in the international legal system.
Alexandra (Xander) A.K. Meise is Of Counsel in the International Disputes practice of Mitchell Silberberg & Knupp LLP, an adjunct professor of International Human Rights Law at Georgetown University, and a Fellow of the Columbia Center for Sustainable Investment.
Albina Gasanbekova is an attorney with MSK’s International Disputes practice, where she and Xander work on international arbitrations and foreign sovereign litigations.