Status of COP decision in the US

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Date produced: 13/12/2009

What is the status of a COP decision in the US?

The following information is taken from the CAN International paper, ‘COP Decisions – Binding or Not?’ The paper can also be found at: http://www.climatenetwork.org/climate-change-basics/by-meeting-and-date/bonn-ii-june-2009/COP%20Decisions_CAN_legal_group_June%208_09.pdf

The material section is on ‘The Binding Nature of COP Decisions Under National Law: The Case of the US’. It states: 

‘…[I]t is also worth considering the extent to which a COP decision including quantified emission reduction targets or specific financial commitments would be viewed as binding law under domestic law. While a comprehensive survey of domestic legal systems is beyond the scope of this note, we include a brief consideration of US law. For both political and legal reasons COP decisions provide a problematic basis for domestically binding obligations. First, as a political matter, the position of the U.S. Senate has been that any further obligations arising under the treaty must be put to the Senate for advice and consent. While the Senate “strongly” endorsed ratification of the UNFCCC, it noted that “a decision by the Conference of the Parties to adopt targets and timetables would have to be submitted” for Senate debate and approval prior to any instruments of ratification being deposited. It also noted that the Executive Branch did not have the authority under the shared understanding of the Convention between the Congress and the Executive Branch to adopt targets and timetables on its own’. 

Although there is some ambiguity to the next paragraph, it is worth adding for consideration, if only by way of background to political and judicial terrain:

‘Second, a 2006 court decision casts doubt on the binding nature (under U.S. domestic law) of decisions of the Parties to a treaty. A panel of the U.S. Circuit Court of Appeals for the District of Columbia found that “without congressional action, however, 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.”

Therefore, looking at this issue from the perspective of how to make the LCA result binding on the US may not be the most effective way to address concerns. As stated above, the US will have to submit the meaningful parts of any LCA result – treaty or COP decision – to (at minimum) scrutiny in Congress. Congress can then accept or reject them – as they did when they rejected the KP in 1997. The US President can use his executive authority to prepare the ground for domestic implementation of the LCA result, but can not unilaterally lock the US into the hard targets and finance.