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CRS Reports & Analysis


Legal Sidebar


Can the President Withdraw from the Paris

Agreement?

12/05/2016



Recently, media Qjjfl have reported that President-elect Donald Trump is considering options to withdraw the United
States from the Pad--Agment an international agreement intended to reduce the effects of climate change by
maintaining global temperatures well below 2C above pre-industrial levels[.] As detailed in this earlier CRLrepor,
the Paris Agreement entered into force on November 4, 2016 and has been accepted by 1, including the United
51aIt and the European Union.

The Paris Agreement is a subsidiary to the 1992 United Nations Framework Convention on Climate Change
(L        ), a broader, framework treaty entered into during the George. H. W. Bush Administration. Unlike the
UNFCCC, which received the Senate's adyice an n   in 1992, the President has not submitted the Paris Agreement
to the Senate for approval. Instead, the Obama Administration appears to have treated the Paris Agreement as an
executive agLement, which the President may unilaterally execute, rather than a Lrea4, which requires the advice and
consent of the Senate. (The key distinctions are analyzed in this mp q and infbgraphic.) No legislation implementing
the UNFCCC or the Paris Agreement into domestic law has been enacted, nor has the executive branch asserted that the
provisions in either are sf-ecing, a term used to describe international obligations that have the force of domestic
law without subsequent congressional action. Rather, the commitments made by the United States under the UNFCCC
and the Paris Agreement have been carried out domestically through pre-existing legislation, including the Lntrmodal
Surface TranSportation Energy Efficiency Act of 1991 and the Clean Air Act.

What Rules Govern Withdrawal from International Agreements?

The legal requirements for withdrawing from international agreements differ depending on (1) whether the withdrawal
is analyzed under international law or domestic law; (2) the type of agreement at issue (executive agreement versus
treaty); and (3) whether implementing legislation has been passed. Under international law, the legal rules are generally
identical for executive agreements and treaties: a nation may withdraw from either with the consent of all parties, in
accordance with the terms of the agreement, or following certain superseding events (described in more detail here). If
the agreement does not expressly permit withdrawal, international law may allow for an implied right to do so, but the
modern practice is to define the procedures for withdrawal in the text of the agreement itself.

Under domestic law, the requirements for withdrawal depend on the type of agreement. For executive agreements, the
President has generally terminated such agreements without authorization from the legislative branch, and this practice
has no ben chal1lnged by Congress or the Senate.

The constitutional requirements for withdrawal from Senate-approved treaties, on the other hand, have been the subject
of dispute between the executive and legislative branches. While the Constitution is clear that the Senate must provide
its adviceand    n  in the process of making treaties, it is silent with respect the power to withdraw from them.
Moreover, past practices have differed considerably depending on the circumstances. In some cases, the President has
received advance authorization for withdrawal from either the S   n or Congress as  n . In others, the
legislative branch has app r withdrawal after the President has already taken action. Finally, in crtain _ , the
President has unilaterally terminated treaties without any form of legislative approval.

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