The United States Senate must act urgently to save its treaty approval authority from irreversible damage inflicted by President Obama with the complicity of the United Nations. Congress has already allowed President Obama to get away with putting in force his Iran nuclear deal with no more than a pro forma review. His administration considered it a “political” arrangement, not a treaty. Now the Obama administration has doubled down with the Paris Agreement on climate change, which was negotiated last December and signed by President Obama in April. For domestic consumption, the administration contends that the Paris Agreement on climate change is no more than an “executive agreement,” which does not require Senate concurrence. However, for the purposes of making it legally binding on the United States under international law, the Obama administration has colluded with the United Nations Secretariat to designate the Paris Agreement as a treaty. In fact, in her October 5th press release regarding the latest developments of the agreement, U.N. Ambassador Samantha Power referred to the accord as a “treaty” that is on the verge of being enacted. Aside from legally binding requirements to periodically report on each state party’s progress in meeting individual country’s greenhouse gas emission reduction commitments previously submitted in writing to the UN, the Paris Agreement contains provisions that appear to impose additional legally binding financial commitments.
The Paris Agreement on climate change will go into legal effect thirty days after at least 55 countries, whose greenhouse gas emissions represent at least 55 percent of global greenhouse gas emissions, have presented the legal instruments necessary under their domestic laws to become formal parties. Once the Paris Agreement goes into legal force, a state party can only withdraw upon at least three years notice. With India and the European Union countries added to the United States and China as well as scores of other countries, the thresholds are about to be met – but only if U.S. greenhouse gas emissions are included in calculating the 55 percent of global greenhouse gas emissions total. In order for the U.S. greenhouse gas emissions to be counted, and the U.S. to be bound legally to the Paris Agreement after the thresholds are met, Obama had to find a way around submitting the Paris Agreement to the U.S. Senate for approval while still having it deemed a treaty under international law. His scheme was to enlist the help of the United Nations Secretariat, which has placed a universal climate change agreement at the top of its agenda.
With an eye on the upcoming U.S. presidential election and the possibility that Donald Trump, who opposes the climate agreement, would win, the Obama administration and UN officials worked feverishly to accelerate the member state ratification process necessary to allow the Paris Agreement to go into legal effect. Patricia Espinosa, the UN’s climate chief, said it wouldn’t be “feasible” for Trump to change the terms of the Paris Agreement once it did go into effect. So it was a race against the clock.
President Obama presented his instrument of “acceptance” of the Paris Agreement to United Nations Secretary General Ban Ki-moon while attending the G-20 meeting in China last month. He did so alongside China’s President Xi Jinping, who presented his instrument of “ratification.” President Obama said that he and President Xi decided to “commit formally to joining the agreement ahead of schedule.” By sleight of hand, President Obama sought to transform his “executive agreement,” now deposited as a treaty with the UN and listed as such in the United Nations’ Treaty Collection under the heading “Multilateral Treaties Deposited with the Secretary-General,” into a treaty without Senate approval.
The United Nations Office of Legal Affairs is complicit in this shell game. The chief of its Treaty Section told me that “what the United States calls an executive agreement we call a treaty.” He cited as a precedent an obscure treaty known as the Minamata Convention on Mercury, to which President Obama had also bound the United States through executive action without any consideration by the Senate.
Executive agreements are not binding on successor presidents, who can simply void them. Obama knows this very well. He is not worried about Hillary Clinton, who is all in with inflicting a critical blow against the fossil fuel industry while giving away many more billions of dollars of taxpayers’ money in wealth redistribution to developing countries. However, he wants desperately to try and cut off Donald Trump, if he is elected as the next president, from taking such an executive action. Thus, taking no chances, President Obama worked overtime to cement his “legacy” on climate change by imposing treaty obligations on the next president without having gone through the constitutional treaty legislative approval process pursuant to Article II, Section 2 of the U.S. Constitution. His administration connived with the UN Secretariat to end run the Senate, an executive overreach that not even Mexico’s president dared to attempt. Mexican President Enrique Peña Nieto submitted the Paris Agreement to Mexico’s Senate for approval before presenting Mexico’s instrument of ratification to the United Nations. Other democracies have followed their own constitutional processes for treaty approval, including involvement of their legislative bodies. But not Barack Obama!
The United States Senate should convene at the earliest opportune time to consider the Paris Agreement as having been deemed submitted to it as a treaty, since it is branded as such by the United Nations. The Senate can then deliberate and formally disavow Obama’s action in depositing the Paris Agreement with the UN as a treaty if the Senate decides not to approve it with the requisite two-thirds vote. This is important not only because of the problems with the Paris Agreement itself, most notably the huge redistribution of wealth it imposes, taking from the United States and other developed countries and giving without any accountability to developing countries. It is also important for the Senate to act so that it sets a clear marker to deter future presidents from proceeding without regard to the Constitution’s separation of powers.