The Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC) released on 29th January a statement and a technical document that leave no doubt that the Paris Agreement is a treaty according to all international criteria that requires depositing “instruments of ratification, acceptance, approval or accession” by the parties. President Barack Obama, Secretary of State John Kerry, Special Envoy for Climate Change Todd Stern, and their legal allies in environmental pressure groups may quibble all they want that, although it may be considered a treaty by the United Nations and the entire international community, it’s still just a piece of paper that doesn’t rise to the level of a treaty requiring ratification by the Senate; but they cannot hide the reality that it is a treaty and according to the U. S. Constitution cannot go into force in the U. S. until it has been ratified by the U. S. Senate.
The UNFCC statement, Bringing the Paris Agreement into Force: Next Steps and National Climate Plans, confirms that the treaty will be open for signature from 22nd April 2016 to 21st April 2015. The press release issued at the end of COP-21 in Paris on 12th December 2015 first shared the good news that UN Secretary-General Ban Ki-moon will hold a hold a “high-level signature ceremony” at UN headquarters in New York City on 22nd April, which the press release refers to as “Mother Earth Day.”
The statement also makes clear that signing the treaty does not bind national parties to it. That only comes after “at least 55 Parties to the Convention accounting for at least an estimated 55% of total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession.” [all emphasis mine] Thus President Obama may sign the treaty at the UN’s big Mother Earth Day celebration, but in order to become a party to the treaty the United States government will have to do something in addition to signing it.
The technical document, The Paris Agreement: Next Steps, makes it clear that the additional action required is ratification.
Section 4 states: “Article 26 of the Paris Agreement provides that the Secretary-General will be responsible for ensuring the proper execution of all treaty action related to the agreement.
Section 5 states: “Pursuant to Article 29 of the Paris Agreement, the texts of the Agreement in Arabic, Chinese, English, French, Russian and Spanish … will be transmitted by the UNFCCC Executive Secretary to the Treaty Section of the Office of Legal Affairs of the United Nations in New York shortly after that document becomes available in all six authentic languages of the Agreement. The Treaty Section assists the Secretary-General in carrying out his depositary function relating to multilateral treaties.”
Section 7 states: “In accordance with treaty law, signing the Paris Agreement would indicate the intention of a Party to the Convention to take steps to express its consent to be bound by the Agreement at a later date (see paragraph 10 below).”
Section 10 states: “In accordance with Article 20, paragraph 1, of the Paris Agreement, in order to become a Party to the Agreement, a State or regional economic integration organization that is a Party to the Convention would need to deposit its instrument of ratification, acceptance, approval or accession with the Depositary. A Party to the Convention that has signed the Agreement may deposit its instrument of ratification, acceptance or approval following signature. A Party to the Convention that has not signed the Agreement during the period when it is open for signature may deposit its instrument of accession from the day following the date on which it is closed for signature.”
In addition, section 12 explains that after the treaty goes into force, each party’s Intended Nationally-Determined Contribution (or INDC) will become its Nationally-Determined Contribution (NDC), except that, “A Party has the opportunity of enhancing its INDC by communicating a more ambitious NDC, if it so desires, before or when submitting its respective instrument of ratification, acceptance, approval or accession.” This is to say that a party’s NDC is a commitment and moreover a commitment that can only be strengthened.
There has been a good deal of loose talk that “acceptance, approval, and accession” are somehow different from ratification, and therefore the United States executive branch can somehow avoid the necessity of Senate ratification by accepting, approving, or acceding to the Paris treaty by some means of executive fiat or imperial ukase. This is rubbish. No one ever questioned that the 1992 UNFCCC, which contains no targets or timetables, binding or not, or its 1997 Kyoto Protocol were treaties that required Senate ratification.
If there is any doubt about the definition of these alternate terms, here is what the UN Convention on Biological Diversity has to say:
“All terms, ‘ratification’, ‘accession’, ‘approval’ and ‘acceptance’, signify the consent of a State to be bound by a treaty. The legal incidents/implications of ratification, accession, approval, and acceptance are the same. The treaty becomes legally binding on the State or the regional economic integration organization. All the countries that have either ratified, acceded to, approved or accepted the Convention are therefore Parties to it.
“Ratification and Accession: The primary (and traditional) distinction is only between ratification and accession. In this regard, it is only States which have signed a treaty, when it was open for signature, that can proceed to ratify it. Signature of itself does not establish consent to be bound, hence the further act of ratification. States which have not signed a treaty during the time when it is open for signature can only accede to it. Therefore the term ‘accession’.
“Acceptance and Approval: The terms ‘acceptance’ and ‘approval’ are of more recent origin and apply under the same conditions as those that apply to ratification. The legal effect is the same as ratification. The uses of these terms have to do with the diversity of legal systems. Certain countries, specially some East European States use the terms acceptance or approval for purposes of participation in treaties. The terms are also used in cases where organizations rather than States become Parties to an international treaty, for example the EU.
And here is how UNICEF defines the terms:
“Accede/Accession: ‘Accession’ is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature. The formal procedure for accession varies according to the national legislative requirements of the State. To accede to a human rights treaty, the appropriate national organ of a State – Parliament, Senate, the Crown, Head of State or Government, or a combination of these – follows its domestic approval procedures and makes a formal decision to be a party to the treaty.
“Ratify/Ratification: ‘Ratification’ is an act by which a State signifies an agreement to be legally bound by the terms of a particular treaty. To ratify a treaty, the State first signs it and then fulfils its own national legislative requirements. Once the appropriate national organ of the country – Parliament, Senate, the Crown, Head of State or Government, or a combination of these – follows domestic constitutional procedures and makes a formal decision to be a party to the treaty. The instrument of ratification, a formal sealed letter referring to the decision and signed by the State’s responsible authority, is then prepared and deposited with the United Nations Secretary-General in New York.
“Signature: ‘Signature’ of a treaty is an act by which a State provides a preliminary endorsement of the instrument. Signing does not create a binding legal obligation but does demonstrate the State’s intent to examine the treaty domestically and consider ratifying it. While signing does not commit a State to ratification, it does oblige the State to refrain from acts that would defeat or undermine the treaty’s objective and purpose.”
The argument is over, but the story has just begun. President Obama and his minions will pretend that the Paris Agreement is not really what the Constitution means when it states in Article 2, Section 2 that, “The President … shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….” It is now up to the Senate to decide whether to fulfill those responsibilities that the U. S. Constitution requires of it.