Monday, April 10, 2017

Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement

The legal procedure through which the United States withdraws from treaties and other international agreements has been the subject of long-standing debate between the legislative and executive branches. Recently, questions concerning the role of Congress in the withdrawal process have arisen in response to statements made by President Donald J. Trump that he may consider withdrawing the United States from certain high-profile international commitments. This report outlines the legal framework for withdrawal from international agreements under domestic and international law, and it examines legal issues related to the potential termination of two agreements that may be of significance to the 115th Congress: the Paris Agreement on climate change and the Joint Comprehensive Plan of Action (JCPOA) related to Iran’s nuclear program.

Although the Constitution sets forth a definite procedure whereby the Executive has the power to make treaties with the advice and consent of the Senate, it is silent as to how treaties may be terminated. Moreover, not all agreements between the United States and foreign states are made through Senate-approved, ratified treaties. The President also enters into executive agreements, which do not receive the Senate’s advice and consent, and “political commitments,” which are not binding under domestic or international law. The legal procedure for withdrawal often depends on the type of agreement at issue, and the process may be further complicated when Congress has enacted legislation implementing the agreement into domestic law.

Historical practice suggests that, because the Obama Administration considered the Paris Agreement to be an executive agreement that did not require the Senate’s advice and consent, a future Executive may unilaterally withdraw from it without seeking approval from the legislative branch. By its terms, however, the Paris Agreement does not allow parties to submit a notice of withdrawal until November 2019. Should a future Executive seek a more expedient method of exit, withdrawal from the 1992 United Nations Framework Convention on Climate Change (UNFCCC)—the parent treaty to the Paris Agreement—would also terminate the United States’ participation in the subsidiary Paris Agreement. Because the UNFCCC received the Senate’s advice and consent in 1992, an effort by the Executive to terminate that treaty unilaterally could invoke the historical and largely unresolved debate over the role of Congress in treaty termination.

The Obama Administration treated the JCPOA as a political commitment that is not legally binding. To the extent this understanding is correct, there is no legal prohibition on the President from withdrawing from the plan of action. It is worth noting that the JCPOA was “endorsed” by U.N. Security Council Resolution 2231, and there is disagreement among observers as to whether this resolution may have converted at least some of the voluntary commitments in the JCPOA into obligations that are binding under international law. Both the JCPOA and Resolution 2231 contain what has been called a “snapback” mechanism that may allow the United States to cause the Security Council to reinstate its prior sanctions that had been imposed on Iran.

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