Over the holiday weekend, both the United States and China “ratified” the climate deal drawn up in Paris this past December, raising the hopes of greens the world over. But the United States Senate didn’t approve the agreement with a two-thirds majority, so what kind of ratification are we talking about here?Well, what do you do when you show up to an international climate convention knowing that your legislature won’t ratify any sort of binding treaty? If you’re the United States, you water the deal down by removing any hint of enforcement mechanisms to ensure you don’t overstep the bounds of executive power. Lawfare Blog breaks down how nine months ago some very clever drafters went to work to get something that others would look at like a binding commitment that nevertheless passes some sort of U.S. constitutional muster:
Even the most cursory review of the text of the Paris Agreement discloses a careful, purposeful alternation between the mandatory “shall”—indicating a binding obligation governed by international law—and the hortatory “should”—non-binding statements of strictly political intent without legal force…A close read of the Paris Agreement demonstrates that the U.S. delegation was entirely successful in navigating the line delineating the President’s legitimate exercise of his existing authority. If anything, the American negotiators were excessively conservative, in insisting on hortatory language when legally binding obligations were arguably entirely appropriate. […]An over-reliance on a non-binding approach—and its costs—are most obvious in the all-important emissions reduction (mitigation) obligations known as “nationally determined contributions (NDCs)” identified by each participating state including the United States. In its contribution—expressly not a “commitment”—the U.S. stated its intent to reduce greenhouse gas emissions by 26-28% by 2025, as compared to a baseline of 2005. Despite the willingness of other participants, most notably the 28-member European Union, to accept substantively binding obligations, the U.S. insisted on a non-binding undertaking instead of a binding commitment on this most critical of all elements in the Paris Agreement.
In working around those congressional restraints, the U.S. completely hollowed out the Paris deal, making it an entirely aspirational affair. None of the goals the Paris deal asks UN member states to set will be enforced in any real way—naming and shaming is the most coercive tool the international community has on this. And yet we see environmentalists breathlessly exhorting the actions taken by Washington and Beijing on Saturday as some sort of monumental achievement.This is a perfect illustration of one of the green movement’s core tendencies: it oscillates wildly. During the negotiation phase, it moaned about the inadequacy of the process, but after the summit it needed to show and hail progress and the inevitability of its agenda, so now it celebrates this nothingburger of a ratification as a substantive achievement.There’s something else at work here: the desperate need of the Obama Administration to keep up the facade that American foreign policy isn’t a complete disaster. An empty ‘agreement’ with China can be presented as both a global achievement and a sign that despite the terrible atmospherics and the deliberate humiliations at the hands of the Chinese, he has historic accomplishments that he can run with. That somehow the United States and China are united on the big things—even though this is actually a small thing.