KP and compatibility with US law

Legal assistance paper

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Date produced: 02/12/2010

1. Is the Kyoto Protocol “Incompatible” with US domestic law as claimed by the US State Department and why?

2. Is a COP decision binding on the US?

Summary

The KP is not incompatible with US law, rather it does not meet the conditions set forth in the 1997 US Senate Resolution Byrd-Hagel. This Resolution is not law, but reflects a political position which could change at any time as the Senate is made up of elected officials who can change their views at any time.

It is considered highly unlikely that the US Senate would ever accept a COP decision as binding, particularly where the COP decision went beyond the scope of the obligations that were specifically provided for in the UNFCCC. Therefore, it is very unlikely that a COP decision establishing emissions reduction targets for developed countries would automatically be binding and enforceable under US law.

Advice

1. The statement that the KP is “incompatible” with US law is not technically accurate and reflects on a poor choice of words by the State Department representative or is taken out of context.

We believe that the State Department representative meant to say that the Kyoto Protocol does not meet the conditions set forth in the 1997 US Senate Resolution Byrd-Hagel, which still accurately represents the conditions upon which the US Senate would be willing to ratify an international climate treaty in 2010, including the Kyoto Protocol.

The Byrd-Hagel Resolution is not a law, however, and accordingly it is not accurate that to say that the Kyoto Protocol is incompatible with US law. The conditions expressed in the 1997 Resolution reflect the then and presumably current political position prevailing in the US Senate, but that position could change at any time because the Senate is made of elected officials who are free to change their views at any time.

The fundamental point is that even if the current US Administration and US President wanted to ratify the Kyoto Protocol (and they probably do), they do not have the sufficient number of votes (66 out of 100) in the US Senate today to get the Kyoto Protocol ratified. Article II of the United States Constitution provides that President of the United States “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided that two thirds of the Senators present concur…”. Practically speaking, therefore, international treaties or agreements must be approved by a two-thirds vote by the Senate before they can be ratified, and there are 100 Senators.

Otherwise, there is no basis for stating that the Kyoto Protocol is incompatible with US law. If it ratifies the Kyoto Protocol, there is no legal reason to our knowledge why the US could not adopt amendments to existing US laws and regulations or adopt such new laws and regulations as are necessary to give effect to its commitments under the treaty.

2. The reality is that it is highly improbable that the US Senate (and most Americans for that matter) would ever accept as a matter of principle that the US could be subject to certain COP decisions that go beyond the scope of the obligations that were specifically provided for in the UNFCCC. That is not approach that is likely to succeed legally and politically to impose emission limitation requirements on the US. This is particularly true given the fact that the US has explicitly refused to ratify the Kyoto Protocol because it does not want to be bound by the emission limitation requirements contained in the treaty in the absence of commitments from developing countries.

The United States did not attach any formal conditions to its resolution of ratification of the UNFCCC. In a report on the resolution prepared by the United State Senate Committee on Foreign Relations (the “Committee”), however, the Committee stated the following:

“The Committee notes that a decision by the Conference of Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement. The Committee notes further that a decision by the executive branch to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States would alter the “shared understanding” of the Convention between the Senate and the executive branch and would therefore require the Senate’s advice and consent. ”

Although the United States did not pass a bill or resolution at the time it ratified the UNFCCC that prohibits the United States from entering into substantial obligations by way of a COP decision, the Committee’s report suggests that such an approach would require the United States Senate’s advice and consent.

Furthermore, the United States Court of Appeals for the District of Columbia ruled in a 2006 case that “[w]ithout congressional action, . . . side agreements reached after a treaty has been ratified are not the law of the land; they are enforceable not through the federal courts, but through international negotiations.”

The case involved the legal consequences of consensus decisions of the parties to the Montreal Protocol. Noting that if decisions agreed to by the parties after ratification of the Montreal Protocol were “law,” “serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers,” would be raised.

Therefore, it is very unlikely that a COP decision establishing emissions reduction targets for developed countries would automatically be binding and enforceable under United States law.