The Power of Perspectives

The Canadian Bar Association

Supriya Tandan

How Trump could dump the Paris Agreement

November 9 2016 9 November 2016

A month before the last night’s election the  Sandra Day O’Connor College of Law published a document outlining the legal pathways a U.S. President could use to withdraw from the Paris Agreement. There are two major routes.

The slower route would be to withdraw from the Paris Agreement itself. Article 28.1 of the Paris Agreement authorizes a country to withdraw from the agreement without reason or justification. The only limitation is timing. Countries would only cease to have emission reduction and reporting obligations four years after the agreement came into force. If President Trump gives notification for withdrawal on the first day of his term, then the withdrawal would only come into force on November 4, 2020.

The faster route would be to withdraw from its’ parent agreement, the United Nations Framework on Climate Change (UNFCC), which only needs a year’s notice to the UN in order to come into force. However, this option requires Senate approval, as the UNFCC was approved by President George H.W. Bush and with the backing of the US Senate. Yesterday’s election gave the Republicans a decided majority in the senate, so a challenge to withdraw from the UNFCC may not be likely.

Withdrawing from the Paris Agreement outside its terms or the UNFCC would be in violation of international law. The U.S. would still be obligated to reduce and report greenhouse gas emissions, though failing to do so carries no repercussions.

Finally, the Paris Agreement came into force with the ratification by 55 countries representing 55 per cent of total global greenhouse gas emissions. Would withdrawal by the U.S. spell the end of the Paris Agreement? Dr. Bodansky, Dr. Bodansky, a professor at Arizona State University who specializes in international environmental law and public international law, says no:

“If U.S. withdrawal were to reduce the total greenhouse gas emissions of parties below 55 percent of global emissions, would the treaty thereby “exit out of force”? The answer, clearly, is no, since the Vienna Convention specifically provides that, unless a multilateral treaty otherwise provides, “a multilateral treaty does not terminate by reason only of fact that the number of parties falls below the number necessary for entry into force.” (Vienna Convention on the Law of Treaties, Article 55).”

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