Climate Commons Law, The Transformative Force of the Paris Agreement

Abstract

Can international law continue to bind the U.S. to reduce carbon emissions after it terminates the Paris Climate Agreement? President Trump’s recent statement that the U.S. immediately will halt implementation of the Paris Agreement lends urgency to this question: meeting global carbon emission reduction goals in accordance with the Paris Agreement would be close to impossible without U.S. participation. Global leaders have expressed outrage at the U.S. announcement, insisting that the U.S. continue to make efforts to meet its Paris goals. Despite the practical importance of the question, the scant scholarship on the topic so far has failed to provide a realistic path to hold the U.S. legally accountable for a defection from its Paris Agreement commitments. Part of the literature highlights the lack of substantive U.S. legal constraint under the law of treaties. The remainder proposes purely political processes to entice the U.S. to cooperate with global climate efforts.

This Article for the first time theorizes that the question can be answered by focusing on the legal significance of global reliance on the U.S.’ Paris Agreement commitments. It submits that the Paris Agreement was built to encourage strong reliance interests. The U.S. acted to foster reliance upon its commitment to the Paris Agreement goals. Other states in turn relied upon representations by the U.S. By inducing other states to rely upon its commitments, the U.S. has now become bound under the international law of unilateral declarations to meet these commitments. The Article further submits that continued and ambitious state practice to reduce carbon emissions in reliance upon global Paris Agreement commitments will give rise to a new rule of customary international law. This rule of customary international law will obligate each state, including the U.S., equitably and proportionately to contribute to global carbon emission reduction efforts.

The Article shows that (1) the U.S. has bound itself by an international law unilateral declaration to continue to reduce carbon emissions notwithstanding President Trump’s recent statement of intent to the contrary; (2) sufficiently many states have relied upon U.S. action to deny the U.S. the ability to terminate its unilateral commitment for at least four years; and (3) if a sufficient number of states have met or exceeded their own commitments by that time, the U.S. will become bound permanently by a carbon custom to continue to fulfill its initial commitments and to match the trajectory set by customary international development. The Article thus demonstrates that, consistent with the initial reaction to the U.S. withdrawal from the Paris Agreement, existing commitments by the U.S. to reduce carbon emissions in the implementation of the Paris Agreement have more than political force at international law.

Keywords: international law, international environmental law, unilateral acts