Trump pulls USA out of Paris Agreement : A brief commentary – by Laurent Weyers

Last thursday, Donald Trump let the world know of the decision he had just taken to remove the United States from the Paris Agreement. Whereas many had been dreading that this would happen – not to say expecting it -, it nevertheless came somewhat as a surprise. Fierce reactions of dismay then quickly burgeoned throughout the world. ‘The Americans can’t just get out of the agreement’, said the European Commission president Juncker. In an interview, former French presidential candidate and minister of the environment Ségolène Royal even referred to it as a ‘délit contre l’humanité’. Other heads of states or governments used words such as ‘suicide’ or ‘disaster’. These statements seem to be raising at least two sets of questions, which we briefly address hereinafter: firstly, whether a right to withdraw from the agreement indeed exists ; and secondly, in the affirmative, how serious a setback it would be if that right was really to be exercised by the United States, as it now seems to be the near and inevitable future.

Right to withdraw or ‘délit contre l’humanité’

Most likely, when Mrs. Royal referred to president Trump’s decision as being a ‘délit contre l’humanité’, she meant it in the ethical or moral, not legal, sense of the words. Yet it does resonate with prior qualifications that have been made regarding the failure to act to preserve the world’s climate. ‘It is leaving the world without ecology. I call it ecocide, which will lead to genocide’, Bolivian president Evo Morales had said at COP16 in Cancun. Other countries also used similar terms during some meetings of the United Nations Security Council concerning the security dimensions of climate change. If one takes this literally, it would then be contrary to international law not to do what is needed to combat global warming, e.g. not adhering to the relevant climate treaties, or walking away from such treaties once these have been adhered to. This seems to be a quite idealistic view, however, as the Paris Agreement itself provides states with a possibility to use an exit door.

As Article 54 of the Vienna Convention on the Law of Treaties stipulates, a state may withdraw from a treaty to which it is a party if such a possibility is provided for in a provision of that treaty, which is precisely the case of the Paris Agreement. Indeed, as Article 28 of the agreement provides, ‘(a)t any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary’, and the second paragraph goes on to say that ‘(a)ny such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal’. In light of the content of this article, the United States may thus legally withdraw from the Paris Agreement. However, the procedure set out in Article 28 is likely to take some time. As the agreement entered into force on November 4, 2016, the procedure could indeed not be initiated before November 4, 2019, and the United States’ written notification would then only take effect on November 4, 2020 at the earliest. As has been argued, there is perhaps a quicker way out of the Paris Agreement based on the third paragraph of Article 28, in virtue of which ‘(a)ny Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement’, the word ‘Convention’ referring here to the 1992 United Nations Framework Convention on Climate Change. One way or the other, the United State undoubtedly has the right to withdraw from the Paris Agreement, which takes us to the next important question : how much a setback is this likely to be in light of what was achievied in Paris at COP21?

Disaster or mere stumble?

When the Paris Agreement was concluded, the event had been referred to as being ‘historic’. It seems therefore very logical that one would now refer to Trump’s decision to remove the United States from the Paris Agreement as being a disaster. But with Trump in office as president of the United States, how much is it exactly that the world would lose out of this? We would tend to think not so much, and we hereinafter explain why.

There were undoubtedly some very good reasons to praise what had been achieved at COP21 in Paris. Firstly, unlike the Kyoto Protocol, the Paris Agreement is truly global inasmuch as it covers almost all greenhouse gas emissions around the world. This is rightly seen as one of its most promising feature since it thereby provides a stronger basis for effective climate action. Secondly, the Paris Agreement is a legally binding instrument and therefore imposes obligations on states. Thirdly, the Paris Agreement sets a clear objective – which its Article 2 notoriously defines in terms of ‘(h)olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’ -, and puts a dynamic process in motion in order to achieve it. However, the Paris Agreement also has weaknesses. Firstly, whereas the agreement imposes procedural obligations on states, these conversely have no legal obligation to reduce their greenhouse gas emissions. This is why, in the agreement, the word ‘contribution’ took precedence over that of ‘commitment’. And not only did states only thus agree to contribute – and not to commit -, they also get to determine the extent of their contribution unilaterally. Hence the often used acronym of NDCs, which stands for nationally determined contribution. While this does certainly not mean that the system put in place is doomed to fail, success is however entirely dependent on how much ambition and goodwill there is – and will be – from the part of the states.

Speaking of ambition and goodwill, suffice it here to note that the states’ nationally determined contributions currently offer no better perspective than that of limiting the global average temperature to 2.7°C above pre-industrial levels. Is this not illustrative of the fact that the Paris Agreement is only just a facilitator? In other words, in terms of solving the climate change problem, the Paris Agreement can – and will – only be of help if states show stronger determination and goodwill. Bearing this in mind, the world seems to only stand to lose from Trump’s decision to walk away from the Paris Agreement if there would otherwise be something to expect from the United States. But if for as long as Trump is in office, there is no real intention to make much efforts to contribute, whether in or out may not make much of a difference . Besides, as was earlier said, if it does indeed take until November 2020 for Trump’s decision to be effective, there might well be another more climate caring president in office to put the United States back on track.

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