Don’t Stop With Paris
It is welcome news that President Trump will pull the United States out of the Paris climate agreement. The pact promises to damage the economy while surrendering American sovereignty over climate policy to yet another international, largely anti-American enterprise.
It is unwelcome news, nevertheless, that so much was riding on the president’s decision to withdraw the assent of his predecessor, Barack Obama -- America’s first post-American president.
In reality, Trump’s decision is monumental only because America, in the Obama mold, has become post-constitutional.
The Paris climate agreement is a treaty. We are not talking here about a bob-and-weave farce like the Iran nuclear deal. That arrangement, the “Joint Comprehensive Plan of Action,” was shrewdly packaged as an “unsigned understanding” -- concurrently spun, depending on its apologists’ need of the moment, as a non-treaty (in order to evade the Constitution’s requirements), or as a binding international commitment (in order to intimidate the new American administration into retaining it).
The climate agreement, to the contrary, is a formal international agreement. Indeed, backers claim this “Convention” entered into force -- i.e., became internationally binding -- upon the adoption of “instruments of ratification, acceptance, approval or accession” by a mere 55 of the 197 parties.
For all these global governance pretensions, though, why should we care? Why should the Paris agreement affect Americans?
Yes, President Obama gave his assent to the agreement in his characteristically cagey manner: He waited until late 2016 to “adopt” the convention -- when there would be no practical opportunity to seek Senate approval before he left office. But Senate consent is still required, by a two-thirds supermajority, before a treaty is binding on the United States.
At least that’s what the Constitution says.
But it is not what post-American, transnational progressives say.
They note that in 1970, President Richard M. Nixon signed a monstrosity known as the Vienna Convention on the Law of Treaties. Think of it as “the treaty on treaties” -- even though you probably thought we already had an American law of treaties.
Under Article 18 of the treaty on treaties, once a nation signs a treaty -- or merely does something that could be interpreted as “express[ing] its consent to be bound by the treaty” -- that nation is “obliged to refrain from acts which would defeat the object and purpose of the treaty.”
In other words, the Constitution notwithstanding, once a presidential administration signs or otherwise signals assent to the terms of an international agreement, the United States must consider itself bound – even though the Senate has not approved it, even though it has not been ratified.
If a subsequent president wants to get the United States out from under this counter-constitutional strait-jacket, it is not enough merely to refrain from submitting the treaty to the Senate. The later president must take an affirmative action that withdraws the prior president’s assent. That is why Trump cannot not just ignore the Paris agreement; he needs to openly and notoriously pull out of it.