The Limits of International Law

By John W. Nikolaou (CMC ’19)

Ratification and implementation: these are the two factors that often determine the power of international treatises and law. Scholars have thoroughly debated the power of international law both in theory and in practice, seeking to answer fundamental questions such as “why should a state sign a treaty?” Many have agreed upon many basic tenets of international law, including the idea that aggressive international legalization is not realistic considering there are nearly 200 states with their own interests and ideologies. This goes for democratic states as well, which at the end of the day serve the demonstrated interests of the voters.

The world’s largest democracy, the United States, is often hoped to lend legitimacy to international law. Unfortunately, the U.S. has disappointed many by not agreeing to many landmark international agreements such as the Kyoto Protocol and the Rome Statute. The Obama Administration has sought to reestablish the U.S. role on the international scene, but has had mixed results.

The latest international agreement that the Administration is promoting is the Paris Climate Agreement. The Agreement seeks to limit global temperature increases by having countries agree to cut greenhouse gas emissions. About 180 countries have signed the deal while over 60 countries have ratified it. Ratification indicates a government has the domestic power to bind their country to the deal. This sometimes requires approval from domestic lawmakers. The next and perhaps most difficult step is implementation. The United States is facing difficulties with both ratification and potential implementation, the debates over which raise more questions about international law. President Obama has signed the Agreement, thus beginning the process of its ratification in the United States.

Article II, Section 2 of the U.S. Constitution states 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.” The Agreement makes environmental commitments that affect the U.S. as a whole, is complex and detailed, open-ended, and currently requires the U.S. to directly contribute millions of dollars to a “Green Climate Fund” for redistribution to green projects around the world. To many, these qualities of the Paris Agreement indicate that it is a treaty rather than an executive agreement, and should thus be submitted to the Senate to be ratified like any other treaty.

The President disagrees. The irony of his disagreement is that in defending his refusal to submit the Agreement to the Senate, the President is diminishing the strength of the Agreement. Repeatedly stating that the Agreement is more of an executive agreement than a treaty puts its power into doubt, even more doubt than any international treaty is subject to in the first place.

Further compounding the issue of compliance with international law, the U.S. faces a legal battle to implement policies that facilitate the Paris Agreement goals. The country’s largest mechanism to combat climate change, the Clean Power Plan (CPP), is currently being fought against by 27 U.S. states in federal court. These states are arguing, among other things, that the EPA does not have the authority to demand compliance to the CPP’s sweeping new regulations that aim to cut emissions from power plants. How can the President argue that he has the authority to ratify a treaty when more than half of the states he represents dispute his ability to implement it?

The case of the U.S. and the Paris Climate Agreement further demonstrates how ratification and implementation are often the limiting factors of international law. The President of the U.S. signed the Paris Agreement as, in his own words, an executive agreement, simultaneously touting the strength of the Agreement while downplaying calling it a “treaty,” which is supposed to be the strongest form of international law. While the administration is being scrutinized for the legality of ratifying the Agreement, there is ongoing domestic legal action against the country’s ability to actually implement the Agreement’s goals through the CPP.

 

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