Effect of COP decisions in the US

Legal assistance paper

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Date produced: 04/08/2010

1. Can a COP decision require certain actions to be taken at the domestic (federal) level in the U.S.?

2. Is there any particular language that should be included in a COP decision to ensure action is taken at the domestic level in the U.S.?

3. What is the legal basis is for US implementation of e.g. CITES listings and Montreal Protocol?

1. The United States can never be bound by an international agreement without either: 1) the United States Senate ratifying the agreement as a treaty, as provided for in the United States Constitution; or 2) the United States Congress enacting domestic legislation implementing the provisions of the international agreement or granting the President of the United States authority to conduct actions consistent with the terms of the international agreement. There is nothing that can be done by the United Nations, any other international body, the President of the United States or the U.S. State Department to circumvent this requirement.

2. There is no language in a COP decision that will ensure action is taken at the domestic level in the U.S.  Action will only be taken if Congress, in its sole discretion, elects to take action, unless Congress or the U.S. Constitution has already given the President of the United States authority to take such action. If the latter is true, there again is no language in a COP decision that can force the President to take specific action. The President would have to elect to take such action.

3. The U.S. Senate ratified CITES in 1973 and Congress implemented the treaty by enacting the Endangered Species Act.  The Montreal Protocol was ratified in 1988 and was implemented when Congress enacted the Clean Air Act Amendments of 1990. In both cases, the Senate ratified the treaty, which requires a 2/3 vote in favor of ratification. Given the political climate in the U.S., I can state without doubt that the Senate will not ratify any environmental treaty for the foreseeable future.