Order Code 98-349 A
Updated March 29, 2001
CRS Report for Congress
Received through the CRS Web
Global Climate Change: Selected Legal
Questions About the Kyoto Protocol
David M. Ackerman
Legislative Attorney
American Law Division
Summary
On November 12, 1998, the United States signed the Kyoto Protocol to the United
Nations Framework Convention on Climate Change. The Protocol had been concluded
a year earlier (on December 10, 1997) by delegates from 161 nations and sets binding
targets for reduction of emissions of greenhouse gases by developed nations. It is not
yet in effect internationally and cannot be legally binding on the U.S. unless and until the
Senate gives its advice and consent. Nonetheless, signature by the U.S. does impose an
obligation on the U.S. under international law to refrain from actions that would
undermine the Protocol’s object and purpose. That obligation continues to apply until
such time as the U.S. ratifies the Protocol or makes clear its intent not to do so.
Signature does not implement the Protocol, nor does it provide a legal basis for the
provisional implementation of the Protocol. Congress can, however, pursuant to its own
constitutional authority, adopt measures which parallel or support the obligations of the
Protocol. This report addresses each of these legal issues and will be updated as events
warrant.
(1) Is the United States now legally bound by the Kyoto Protocol? No.
The Kyoto Protocol was negotiated as a means of implementing the United Nations
Framework Convention on Climate Change,1 to which the Senate gave its advice and
consent on October 7, 1992,2 and by which the U.S. is legally bound. The Framework
Convention set a general objective of stabilizing greenhouse gas concentrations in the
atmosphere at levels that would prevent global warming and anticipated that the Parties
would adopt protocols to the Convention in order to achieve that objective. But such
protocols must themselves be ratified by the participating states and meet their own
standards for going into effect internationally before they can become legally binding. In
this instance the Kyoto Protocol has been negotiated, and the Clinton Administration
1 TIAS ____ (1994).
2 138 CONG. REC. 33521-27 (Oct. 7, 1992).
Congressional Research Service ˜ The Library of Congress

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signed it and indicated its intent eventually to seek its ratification. But the Protocol has
not as yet been ratified by the U.S. or even submitted to the Senate for its advice and
consent, nor will it enter into force internationally until it has been ratified by at least 55
states that accounted for at least 55% of the total carbon dioxide emissions in 1990.3
Moreover, the Bush Administration has recently indicated that it does not intend to pursue
ratification of the Protocol. Both steps — ratification by the U.S. and entry into force
internationally — are necessary for the Protocol to be legally binding on the U.S.
(2) What is the legal effect of the United States signing the Kyoto
Protocol? The Kyoto Protocol provided that it was open for signature from March 16,
1998, to March 15, 1999, and states that it is subject to ratification, acceptance, or
approval.4 The United States initially delayed signing as a means of encouraging fuller
participation in emissions reductions by developing states. But on November 12, 1998,
it became the 58th nation (and the last major industrialized nation) to sign.
Signature in itself does not make the Protocol legally binding on the United States.
But it does have at least three consequences. First, signature authenticates the text of an
agreement, i.e., it represents “the assent of the negotiating states that a given text
expresses the agreement they have reached.”5 Secondly, it initiates the process by which
the U.S. could become legally bound. That is, signature of a treaty is essentially a political
statement of approval and represents “at least a moral obligation to seek (its) ratification.”6
Signature of the Protocol, thus, is a public declaration of the intent of the U.S. to make it
legally binding. That is only the first step in the process, however. As noted above, the
Protocol cannot become legally binding on the U.S. until it is submitted to the Senate, the
Senate gives its advice and consent, the President signs and deposits the appropriate
instruments of ratification with the United Nations, and the Protocol gains sufficient
ratifications to enter into force internationally.
Finally, signature of a treaty or protocol obligates a state “to refrain from acts that
would defeat the object and purpose of the agreement.”7 Article 18 of the Vienna
Convention on the Law of Treaties states the matter more completely as follows:
A State is obliged to refrain from acts which would defeat the object and purpose
of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention clear
not to become a party to the treaty; or
3 Kyoto Protocol, Art. 24. As of March 19, 2001, the Protocol had been signed by 84 states and
ratified by 33. No major industrialized state has at yet ratified the Protocol. See the official
website for the Framework Convention: www.unfccc.de/index.html
4 Id. Art. 23(1).
5 Department of State (Whiteman, Marjorie, ed.), Digest of International Law, Vol. 14 (1968), at
40.
6 American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States,
Vol. 1 (1987), § 312, Comment d, at 173 (hereinafter Restatement).
7 Id. § 312(3).

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(b) it has expressed its consent to be bound by the treaty, pending the entry into
force of the treaty and provided that such entry into force is not unduly delayed.8
The United States has not ratified the Vienna Convention but this portion likely represents
customary international law on the subject.9 As a practical matter, however, it is often
difficult to determine what this obligation entails, i.e., “[i]t is often unclear what actions
would have [the] effect” of defeating a treaty’s object and purpose.10 The Restatement
suggests that one criterion may be whether a particular action has a negative and
irreversible effect on what would be a state’s obligations under a treaty.11
(3) Can the United States remove its signature from the Kyoto
Protocol? International law does not provide any procedure for a nation to remove its
signature from a treaty. However, a nation can eliminate the legal consequences of
signature by making clear its intent not to ratify the treaty. Article 18 of the Vienna
Convention, quoted above, states that the obligation to refrain from acts that would
“defeat the object and purpose of a treaty” applies only until such time as a signatory “shall
have made its intention clear not to become a party to the treaty.” The Convention does
not prescribe any particular means by which such an intention must be expressed. A letter
from the Secretary of State to the treaty depositary (in this case the United Nations), as
has been suggested with respect to the Kyoto Protocol, likely would suffice to do so.
(4) Can the Kyoto Protocol be treated as an executive agreement for
which Senate or Congressional consent is not required? Executive agreements
are not mentioned as such in the Constitution, but their existence has been validated by
historical practice and judicial decision.12 While the full scope of the President’s authority
to conclude and implement executive agreements remains a subject of scholarly and
political debate, the Senate appears to have anticipated the question when it gave its advice
and consent to the Framework Convention on Climate Change in 1992. During the
hearing on the Convention, the Senate Foreign Relations Committee propounded to the
Administration the general question of whether protocols and amendments to the
Convention and to the Convention’s Annexes would be submitted to the Senate for its
advice and consent. The first Bush Administration responded as follows:
Amendments to the convention will be submitted to the Senate for its advice and
consent. Amendments to the convention’s annex (i.e., changes in the lists of countries
contained in annex I and annex II) would not be submitted to the Senate for its advice
and consent. With respect to protocols, given that a protocol could be adopted on any
number of subjects, treatment of any given protocol would depend on its subject matter.
8 Vienna Convention on the Law of Treaties, Exec. L, 92d Cong., 1st Sess. (1971), Art. XVIII.
9 The United States views most of the Vienna Convention as codifying customary international law.
10 Restatement, supra, Comment i, at 174.
11 Id.
12 See Treaties and Other International Agreements, supra, n.8, at 52-68. Three categories of
executive agreements are generally recognized: (1) congressionally-authorized executive
agreements, (2) executive agreements concluded pursuant to existing treaties, and (3) Presidential
or “sole” executive agreements made on the basis of the President’s independent constitutional
authority.

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However, we would expect that any protocol would be submitted to the Senate for its
advice and consent.13
The committee also asked more specifically whether a protocol containing targets and
timetables for emissions reductions would be submitted to the Senate. The Administration
responded:
If such a protocol were negotiated and adopted, and the United States wished to become
a party, we would expect such a protocol to be submitted to the Senate.14
The Senate did not attach any formal conditions to its resolution of ratification for the
Convention. But the report of the Senate Foreign Relations Committee on the resolution
stated as follows:
The Committee notes that a decision by the Conference of the Parties to adopt targets
and timetables would have to be submitted to the Senate for its advice and consent
before the United States could deposit its instruments of ratification for such an
agreement. The Committee notes further that a decision by the executive branch to
reinterpret the Convention to apply legally binding targets and timetables for reducing
emissions of greenhouse gases to the United States would alter the “shared
understanding” of the Convention between the Senate and the executive branch and
would therefore require the Senate’s advice and consent.15
The committee made clear, in other words, its view that “[t]he final framework convention
contains no legally binding commitments to reduce greenhouse gas emissions” and its
intent that any future agreement containing legally binding targets and timetables for
reducing such emissions would have to be submitted to the Senate. The first Bush
Administration concurred with that view and agreed to submit any such agreement. That
commitment was cited during Senate debate on the resolution of ratification as an
important element of the Senate’s consent.16 While these statements may not be as legally
binding as a formal condition to the Senate’s resolution of ratification for the 1992
Convention, it is doubtful that any administration could ignore them.
The Clinton Administration, it might be noted, repeatedly stated that it intended to
submit the Kyoto Protocol to the Senate for its advice and consent (although it did not do
so before the end of its tenure).
(5) Can the Kyoto Protocol, prior to ratification, be used as a basis for
regulations imposing emissions restrictions on industry? As noted, treaties
generally are not legally effective until they have been ratified and have gone into effect
internationally. But on rare occasion in the past treaties have been given provisional
application prior to their ratification, i.e., measures have been taken to carry them out even
13 Hearing Before the Senate Committee on Foreign Relations on the U.N. Framework Convention
on Climate Change, 102d Cong., 2d Sess. (1992), at 105 (Appendix).
14 Id. at 106.
15 S. Exec. Rept. 102-55, 102d Cong., 2d Sess. (1992), at 14.
16 See 138 CONG. REC. 33521 (Oct. 7, 1992) (statement of Sen. McConnell).

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though they have not yet been ratified by the U.S. The Vienna Convention on the Law of
Treaties states:
1. A treaty or a part of a treaty is applied provisionally pending its entry into force
if:
a. the treaty itself so provides; or
b. the negotiating States have in some other manner so agreed.17
A few treaties that the U.S. has signed have been given provisional application — the
Maritime Boundary Agreement between the United States and Cuba,18 the Maritime
Boundaries Agreement between the U.S. and Mexico,19 and, arguably, the 1979 SALT II
Treaty on the Limitation of Strategic Offensive Arms.20 Most recently, the U.S. agreed
to the provisional application of a revised deep seabed regime under the Law of the Sea
(LOS) Convention.21 Nonetheless, the provisional application of a treaty remains an
unusual occurrence.
For the U.S. the provisional application of a treaty “is in essence an executive
agreement to undertake temporarily what the treaty may call for permanently.”22
According to the Restatement, such an executive agreement “normally must rest on the
17 Vienna Convention, supra, Art. 25.
18 Exec. G, 96th Cong., 1st Sess. (1979). See Senate Exec. Rept. 96-49 (to accompany Execs. F,
G, and H, 96-1) (1979). The treaty itself contained a provision providing that the maritime
boundaries would be applied provisionally for up to two years pending ratification, and that
provision has been renewed by a periodic exchanges of notes from the time of its signing in 1977
to the present.
19 Exec. F, 96th Cong., 1st Sess. (1979). The maritime boundaries set forth in the treaty were
identical to those in an executive agreement concluded in 1976, and the executive agreement
provided that it would remain provisionally in effect “pending final determination by treaty of the
Maritime Boundaries between the two countries. The Senate gave its consent to the treaty in
October, 1997, and final ratification occurred in November. See 143 CONG. REC. S 11165 (daily
ed. Oct. 23, 1997).
20 Id. Ratification of the treaty was forestalled by the Soviet invasion of Afghanistan, but both
parties stated independently that they would observe the restraints of the treaty so long as the other
party did so.
21 The LOS Convention was put forward by the United Nations General Assembly as a multilateral
treaty in 1982. The U.S. supported much of the Convention but chose not to sign it or to pursue
ratification because of objections to the deep seabed regime set forth in Part XI. To accommodate
the U.S., Part XI was renegotiated in the early 1990s. In order to allow the participation of
industrial nations such as the U.S. which had not yet ratified the Convention in the policy making
body for the deep seabed (the Council of the International Sea-Bed Authority), the agreement
provided that it could be provisionally applied even before ratification. The U.S. voted in favor of
the General Assembly resolution endorsing the Agreement revising Part XI (GA Res. 48/263 (July
28, 1994)); subsequently signed the Agreement; submitted the LOS Convention as amended by the
Agreement to the Senate for its advice and consent (Treaty Doc. 103-39 (Oct. 7, 1994)); and began
participating in the Council of the International Sea-Bed Authority. The Senate, however, has not
as yet given its advice and consent; and the provisional application of the Agreement, by its terms,
terminated in November, 1998.
22 Id. at 84.

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President’s own constitutional authority”23; but it also appears possible that authority can
be buttressed by Congressional or Senate authorization or approval, express or implied.24
However, there does not appear to be any clear legal authority that could be invoked
to sustain the provisional application of the Kyoto Protocol. The Protocol itself does not
so provide, and the parties that negotiated the Protocol did not otherwise agree to do so.
Nor has Congress assented to, or otherwise authorized, the provisional implementation of
the Protocol either expressly or by implication. Indeed, the actions of the Senate and
Congress have been decidedly to the contrary. On July 25, 1997, for instance, the Senate
unanimously adopted (95-0) a resolution expressing the view that the U.S. should not sign
any agreement at Kyoto that would commit developed nations, but not developing ones,
to reduce or limit greenhouse emissions by a certain date or that would do “serious harm”
to the U.S. economy.25 Congress, moreover, has repeatedly barred any expenditure of
appropriations to implement the Protocol.26 Finally, it appears doubtful that the President
could implement the Protocol on the basis of his independent constitutional authority.27
This does not mean, however, that measures which might parallel or support the
obligations of the Kyoto Protocol cannot be implemented. The Clinton Administration,
for instance, included climate change initiatives in some of its budget proposals, and
Congress sometimes enacted them in whole or in part.28 But the legal authority for the
implementation of those initiatives is not the Kyoto Protocol but Congress’ authorization
and appropriation of funds.
xxSRsummend
23 Restatement, supra, Comment l, at 175.
24 Id. See also Charney, Jonathan, “U.S. Provisional Application of the 1994 Deep Seabed
Agreement,” 88 Amer. J. Int. Law 705 (1994) (arguing that Congressional participation in, and
support for, the LOS Convention negotiations, the compatibility of the Agreement with the “Deep
Seabed Hard Mineral Resources Act” adopted by Congress in 1988, and the authority given in the
“State Department Basic Authorities Act” for temporary participation in international institutions
supported the provisional application of the Agreement).
25 S. Res. 98, 105th Cong., 1st Sess., adopted at 143 CONG. REC. S 8138 (daily ed. July 25, 1997).
The resolution further stated the view that any agreement which would require Senate advice and
consent should be accompanied by a detailed analysis of its economic impact and of any legislation
and regulations necessary to implement the agreement
26 See, e.g., § 517 of the Treasury Department Appropriations Act for Fiscal 2001, enacted as part
of the omnibus Consolidated Appropriations Act, P.L. 106-654 (Dec. 21, 2000).
27 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In that case President
Truman’s claim of independent constitutional authority to take control of and operate the nation’s
steel mills to ensure continued production during the Korean War was rejected by the Supreme
Court. The President claimed his action to be legally justified not only on the basis of an “inherent”
power to protect the well-being and safety of the nation but also on the basis of the Commander-in-
Chief and executive power clauses of Article II of the Constitution. But the Court rejected his
claims individually and in the aggregate, finding his actions to be a usurpation of the lawmaking
power of Congress.
28 See, e.g., P.L. 105-277 (Oct. 21, 1998).

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