Trump’s Withdrawal from Climate Treaty: Is It Illegal?
- president's power to unilaterally withdraw from international treaties is a complex legal question with no definitive answer, even when the Senate has ratified those treaties.
- Constitution outlines the process for making treaties - requiring the President to secure the advice and consent of the Senate (Article II, Section 2, Clause 2).
- According to Chimène Keitner,an international law expert at the University of Pennsylvania Carey Law School,the issue of unilateral withdrawal is "hard" and "complex." She notes that even when...
The Trump management’s long-anticipated decision this week to pull the US from the world’s most important climate treaty may have been illegal, some experts say.
“In my legal opinion, he does not have the authority,” Harold Hongju Koh, former head lawyer for the US state department, told the Guardian.in a Wednesday presidential memorandum,the president said the US “shall withdraw” from the UN Framework Convention on Climate Change (UNFCCC),along with 65 other organizations,agencies adn commissions that it deemed “contrary to the interests of the United States”.It marks the first time any country has ever moved to exit the agreement.
Related: Outrage as Trump withdraws from key UN climate treaty along with dozens of international organisations
The UN climate body requires one year’s notice for withdrawal, so the United States will not cease being a party for a year. Trump’s memo did not specify whether or not his administration will submit a formal notice of termination to the UN.
Reached for comment, a state department spokesperson noted that Trump’s memo said the agency will take all necessary “steps to effectuate the withdrawal of the United States from the organizations as soon as possible”. The person also referred the Guardian to secretary of state Marco Rubio’s Wednesday statement, where he said the Trump administration is exiting institutions and treaties which it believes to be “redundant in their scope, mismanaged, unnecessary, wasteful, poorly run, captured by the interests of actors advancing their own agendas contrary to our own, or a threat to our nation’s sovereignty, freedoms, and general prosperity”.
Because the country entered the UNFCCC with the consultation and approval of the Senate in 19
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The U.S. president’s power to unilaterally withdraw from international treaties is a complex legal question with no definitive answer, even when the Senate has ratified those treaties. While Senate approval is required for treaty ratification,the extent of presidential authority regarding withdrawal remains a subject of debate among legal scholars.
historical Context and Legal Debate
The U.S. Constitution outlines the process for making treaties – requiring the President to secure the advice and consent of the Senate (Article II, Section 2, Clause 2). However, its silent on the procedure for withdrawing from them. this ambiguity fuels the ongoing debate.Some argue that because the Senate’s consent is needed for ratification, its consent should also be required for withdrawal. Others contend the President, as the sole organ of foreign affairs, possesses the inherent authority to withdraw, particularly if Congress hasn’t explicitly limited that power.
According to Chimène Keitner,an international law expert at the University of Pennsylvania Carey Law School,the issue of unilateral withdrawal is ”hard” and “complex.” She notes that even when the Senate recommends entry into treaties, the president has the discretion not to take their advice.
Possible Presidential Approaches to Withdrawal
Presidents may approach withdrawal in different ways, impacting the legal arguments surrounding their authority. Keitner suggests two potential presidential strategies: “ratcheting back the last step of ratification” – essentially reversing the act of depositing the instrument of ratification – or asserting an inherent power to withdraw unilaterally, absent explicit congressional restrictions (Lawfare Blog, october 26, 2023).
This distinction is crucial. A president claiming to simply reverse ratification might face less legal challenge then one asserting a broad, unilateral power to withdraw from any treaty at will.
Examples of U.S. Treaty Withdrawals
The United States has withdrawn from several international agreements throughout its history. A notable example is the withdrawal from the Paris Agreement on Climate Change.President Donald Trump announced the withdrawal in June 2017, formally notifying the United Nations in November 2019 (UN Climate Change News, November 4, 2019). This action was heavily contested, with critics arguing it exceeded the president’s authority. The U.S.rejoined the agreement in February 2021 under President Joe biden (White House Briefing Room, February 19, 2021).
Another example is the withdrawal from the Anti-Ballistic Missile Treaty in 2002 under President George W. Bush (U.S. Department of State Archive, December 13, 2002). This withdrawal, while not as widely debated as the Paris Agreement withdrawal, also raised questions about the scope of presidential power.