Global Climate Change: Selected Legal Questions About the Kyoto Protocol

Global Climate Change: Selected Legal Questions About the Kyoto Protocol

98-349 A
April 10, 1998
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 December 10, 1997, delegates from 161 nations concluded the Kyoto Protocol
to the United Nations Framework Convention on Climate Change setting binding targets
for reduction of emissions of greenhouse gases by developed nations. The Clinton
Administration is generally supportive of the Protocol but will not sign it and submit it
to the Senate for its advice and consent until further negotiations on the Protocol are
held later this year. Nonetheless, a number of legal questions about the Protocol and its
possible implementation have already arisen. This report adresses whether the United
States is now legally bound by the Protocol, the legal implications of signing it, whether
it could be implemented as an executive agreement without submission to the Senate,
and whether the Protocol could be used as the legal basis for regulation of emissions
even prior to ratification.
(1) Is the United States now legally bound by the Kyoto Protocol?
No. The Protocol has been negotiated, and the Administration has indicated its
intent eventually to seek its ratification. But the Protocol has not as yet been signed by
the U.S. or submitted to the Senate for its advice and consent, nor has it entered into force
internationally. 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 would be the legal effect of the United States signing the Kyoto
Protocol?
The Kyoto Protocol provides that it is open for signature from March 16, 1998, to
March 15, 1999, and is subject to ratification, acceptance, or approval.1 As noted, the
United States has not as yet signed the Protocol but Under Secretary of State Eisenstadt
has stated that the Administration intends to do so sometime during this one year period.
1 Kyoto Protocol, Art. 23(1).
Congressional Research Service ˜ The Library of Congress

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Signature in itself would not make the Protocol legally binding on the United States.
But it would have at least two consequences. First, it would initiate 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.”2 Signature of the Protocol, thus, would be a public declaration of the
Administration’s intent to make it legally binding. That is only the first step in the
process, however. The Protocol could not become legally binding 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.
Secondly, signature of a treaty or protocol obligates a state “to refrain from acts that
would defeat the object and purpose of the agreement.”3 The Vienna Convention on the
Law of Treaties, Art. 18, states the matter 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
(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.4
The United States has not ratified the Vienna Convention but this portion likely represents
customary international law on the subject.
As a practical matter, “[i]t is often unclear what actions would have such effect.”5
The Restatement suggests, however, that the irreversibility of an action may be an
important criterion.6
(3) Could 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.7 Such
agreements can generally be categorized as (1) congressional-executive agreements
sanctioned by the joint authority of the President and the Congress, (2) agreements
2 American Law Institute, Restatement of the Foreign Relations Law of the United States
Third, Vol. 1 (1987), § 312, Comment d, at 173 (hereinafter Restatement).
3 Id., § 312(3).
4 Vienna Convention on the Law of Treaties, Exec. L, 92d Cong., 1 Sess. (1971), Art
st
.
XVIII, reprinted in Congressional Research Service, Treaties and Other International
Agreements: The Role of the United States Senate, 103d Cong., 1 Sess. (Comm. Print 1993), at
st
318, 334.
5 Restatement, supra, Comment i, at 174.
6 Id.
7 See Treaties and Other International Agreements, supra, at 52-68.

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concluded pursuant to existing treaties, and (3) Presidential or “sole” executive
agreements made by on the basis of the President’s independent constitutional authority.
The full scope of the President’s authority to conclude and implement executive
agreements remains a subject of scholarly debate, and the guidelines issued by the
Department of State to direct whether a particular agreement should be in the form of a
treaty or an executive agreement are suggestive but indeterminate.8 But with respect to
the Kyoto Protocol the issue appears to have been anticipated when the Senate gave its
advice and consent to the Framework Convention on Climate Change in 1992.9 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 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. However, we would expect that any protocol would be submitted to the
Senate for its advice and consent.10
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:
8 In Circular 175, “Procedure on Treaties,” the Department sets forth the following
considerations to guide the decision whether a particular agreement is to be concluded as a treaty
or an executive agreement:
a. The extent to which the agreement involves commitments or risks affecting
the nation as a whole;
b. Whether the agreement is intended to affect State laws;
c. Whether the agreement can be given effect without the enactment of subsequent
legislation by the Congress;
d. Past U.S. practice as to similar agreements;
e. The preference of the Congress as to a particular type of agreement;
f. The degree of formality desired for an agreement;
g. The proposed duration of the agreement, the need for prompt conclusion of an
agreement, and the desirability of concluding a routine or short-term agreement; and
h. The general international practice as to similar agreements.
The Circular further provides that “[i]n determining whether any international agreement should
be brought into force as a treaty or as an international agreement other than a treaty, the utmost
care is to be exercised to avoid any invasion or compromise of the constitutional powers of the
Senate, the Congress as a whole, or the President.” See Treaties and Other International
Agreements, supra, Appendix IV, at 301, 304.
9 138 CONG. REC. S 17156 (daily ed., Oct. 7, 1992).
1 0 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).

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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.11
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.12
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 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. While these statements may not be as legally
13
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, has repeatedly stated that it intends
to submit the Kyoto Protocol to the Senate for its advice and consent.
(4) Could the Kyoto Protocol, prior to ratification, be used as a basis for
regulations imposing emissions restrictions on industry?
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 though they
have not completed the ratification process. 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.14
Most recently, for instance, the U.S. agreed to the provisional application of a revised
deep seabed regime under the Law of the Sea (LOS) Convention. That Convention was
11 Id., at 106.
12 S. Exec. Rept. 102-55, 102d Cong., 2d Sess. (1992), at 14.
13 See 138 CONG. REC. S 17150 (daily ed. Oct. 7, 1992) (statement of Sen. McConnell).
14 Vienna Convention, supra, Art. 25.

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put forward by the United Nations General Assembly as a multilateral treaty in 1982, but
the U.S. chose not to sign it or to pursue ratification because of objections to the deep
seabed regime set forth in Part XI. Part XI was subsequently renegotiated in the early part
of this decade; and 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, subsequently signed the
15
Agreement, submitted the LOS Convention as amended by the Agreement to the Senate
for its advice and consent, and began participating in the initial implementation of the
Agreement. However, the provisional application of the Agreement will, by its terms,
terminate in November, 1998.
A few other treaties have similarly been given provisional application — the
Maritime Boundary Agreement between the United States and Cuba, the Maritim
16
e
Boundaries Agreement between the U.S. and Mexico, the 1971 International Whea
17
t
Agreement, and, arguably, the 1979 SALT II Treaty on the Limitation of Strategi
18
c
Offensive Arms. Nonetheless, th
19
e 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.”20
According to the Restatement, such an executive agreement “normally must rest on the
President’s own constitutional authority” but it also appears possible that that authority
21
can be buttressed by Congressional or Senate authorization or approval, express or
implied.22
15 GA Res. 48/263 (July 28, 1994).
16 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.
17 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).
18 See Treaties and Other International Agreements, supra, at 85.
1 9 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.
20 Id., at 84.
21 Restatement, supra, Comment l, at 175.
22 Id. See also Charney, Jonathan, “U.S. Provisional Application of the 1994 Deep Seabed
(continued...)

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There does not appear to be any clear legal authority that might be invoked to sustain
the provisional application of the Kyoto Protocol. Congress, for instance, has not
assented to, or otherwise authorized, the provisional implementation of the Protocol either
expressly or by implication. Indeed, Senate action in the summer of 1997 was expressly
to the contrary. On July 25, 1997, 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. 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.23 Moreover, the
President’s independent constitutional authority to impose such restrictions appears
dubious. In Youngstown Sheet & Tube Co. v. Sawyer, it might be noted, Presiden
24
t
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. In that instance 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
25
and in the aggregate, finding his actions to be a usurpation of the lawmaking power of
Congress.
In sum, then, legal authority for the provisional application of a treaty must exist
either in the independent constitutional powers of the President or in Congressional (or
Senate) assent or authorization. In the present situation there does not appear to be any
clear legal basis for the provisional implementation of the Kyoto Protocol prior to
ratification and its entry into force.
This does not, however, mean that the United States is unable to adopt and
implement measures that might parallel or support the obligations of the Kyoto Protocol.
The Administration, for instance, has proposed a $6.3 billion climate change initiative as
part of its budget for fiscal 1999, and Congress may choose to authorize and fund its
implementation. But the legal authority for that initiative’s implementation will be
Congress’ authorization, not the Kyoto Protocol.
22(...continued)
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 support the provisional application of the Agreement).
23 S.Res. 98, 105th Cong., 1st Sess., adopted at 143 CONG. REC. S 8138 (daily ed. July 25,
1997).
24 343 U.S. 579 (1952).
25 Article II provides that “The executive Power shall be vested in a President” and that he
“shall be Commander in Chief of the Army and Navy of the United States.”