What’s in a name? that which we call a rose
By any other name would smell as sweet.
— Juliet, Romeo and Juliet, William Shakespeare
The agreement adopted in Paris at 7:28 p.m. local time Saturday doesn’t call itself a treaty, but in every other respect it is one. Four years ago at the Durban climate conference, climate negotiators decided to launch a process “to develop a protocol, another legal instrument, or an agreed outcome with legal force.” If the Paris Agreement is to meet the requirements of the Durban Platform, legal scholar and Clinton-era climate-change coordinator at the State Department Daniel Bodansky states that “the Paris Agreement must constitute a treaty within the definition of the Vienna Convention.”
Article Two (a) of the 1969 Vienna Convention on the Law of Treaties defines a treaty as an “international agreement concluded between states in written form and governed by international law.” Under the principle of pacta sunt servanda (“agreements must be kept”), treaties are binding on the parties and must be performed by them in good faith, Bodansky observes in a recent book. Article 14 of the Paris Agreement establishes a compliance mechanism, and Article 20 duly sets out the process for the depositing of “instruments of ratification, acceptance, approval, or accession.”
Article Two of the Constitution of the United States circumscribes the power of the executive to make treaties by stating that the president “shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” The question then arises whether the Paris Agreement imposes new legally binding obligations on the United States. American negotiators were mindful of this when Secretary of State John Kerry reportedly threatened that the U.S. would walk out unless negotiators removed from the draft treaty the specification that developed countries would begin providing $100 billion a year in climate funding, by 2020. The Business Standard of India reported that Kerry said: “I would love to have a legally binding agreement. But the situation in the U.S. is such that legally binding with respect to finance is a killer for the agreement.”