Could a new US president possibly withdraw from the UNFCCC under Art. 25 (within a year of taking office) through an executive order and without approval by the US parliament (Senate/Congress?)? What would be the specific legal requirements, barriers, criteria for such an order?
As a matter of United States law, a new US president has authority to withdraw from an international agreement in accordance with its terms, without approval from Congress. The president can accomplish this by executive order pursuant to the constitutional authority of the president to conduct the foreign relations of the United States.
According to article 25(1) of the UNFCCC: “At any time after three years from the date on which the Convention has entered into force for a Party, that Party may withdraw from the Convention by giving written notification to the Depositary.” Such withdrawal takes effect one year after notification. UNFCCC, art. 25(2). Thus, as a matter of international law, any party to the UNFCCC may withdraw from the treaty.
As a matter of US law, the US Supreme Court has recognized the “very delicate, plenary and exclusive power of the President as the sole organ of the Federal government in the field of international relations, a power which does not require as a basis for its exercise an act of Congress.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). Thus, although the Constitution requires the advice and consent of the Senate before the United States can become a party to a treaty, the president may unilaterally decide on behalf of the country to terminate a treaty “that no longer serves the national interest.” Restatement (Third) of the Foreign Relations Law of the United States § 339, Reporters’ Note 1, at 227 (1987).
The Senate has the power to require either house’s consent to withdrawal from a treaty as a condition for giving its advice and consent to ratification, but if it has not imposed that condition, the president may act unilaterally. That does not mean, however, that such unilateral action will go unchallenged. As a political matter, both houses of Congress may claim an interest in important foreign policy decisions, especially if those decisions implicate other Congressional powers (e.g., the power to declare war). And the Senate in particular may take the position that withdrawal from a treaty implicates the power to enter into a treaty, which requires the Senate’s advice and consent, if withdrawal effectively creates a new international agreement.
The current state of US law regarding unilateral termination of treaties by the president is summed up by Professor Curtis Bradley as follows:
“Unilateral presidential termination of treaties is an established and longstanding practice, and it seems unlikely that Congress will do anything in the coming years to destabilize that practice. Moreover, the courts have shown little inclination to resolve the issue, and the longer they wait the more entrenched the practice becomes. As a result, an account of modern U.S. constitutional law that denied a presidential authority to terminate treaties (at least as a general matter) would face serious descriptive limitations.”
Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Texas Law Review 773, 822 (2014).
Executive orders are legally binding orders issued by the president to administrative agencies of the federal government. The legal requirements for an executive order include that the order must be legal and constitutional. That means an executive order may not contravene existing US law, and that the order executes a power within the president’s constitutional authority. In the case of withdrawal from a treaty, as noted above, the applicable authority is the president’s exclusive power to conduct foreign relations. Mechanically, an executive order must be published in the Federal Register for 30 days, after which it is implemented, without congressional action for or against.