UNITED STATES ´S NOTIFICATION ON ITS INTENTION TO WITHDRAW PARIS AGREEMENT ON CLIMATE CHANGE

On August 4, 2017, United States notified officially to the Secretary-General of the United Nations its intention to withdraw from Paris Agreement on Climate Change signed in December 2015. The Secretary-General of the United Nations is the depositary of this multilateral agreement, signed by 195 States, and ratified by 159 States: see official status of signatures and ratification (at the very end, are available the declarations made by 18 Parties).

One of the last withdrawal of an environmental UN treaty took place in 2013 when Canada decided to withdraw the UN Convention to Combat Desertification: it can be read in the official status of signatures and ratification of this treaty that

“Canada had signed the Convention on 14 October 1994 and had ratified it subsequently on 1 December 1995. Thereafter, on 28 March 2013, in accordance with its article 38 (2), the Government of Canada had notified the Secretary-General of its decision to withdraw from the Convention. The withdrawal took effect on 28 March 2014. On 21 December 2016, Canada deposited with the Secretary-General an instrument of accession to the Convention” (Note 4).

Legally speaking, and in accordance with the text of Paris Agreement of 2015, no formal notification to the UN on its decision to withdraw it can be done by a State before November 2019. Additionnally, no withdrawal will take effect until November 2020. On this respect, the rules concerning withdrawal of Article 28 are extremely clear:

Article 28 1. At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary.

2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.

3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from this Agreement.

If the idea is to inform that United States wants to withdraw this multilateral agreement, official declarations made by President Trump a few months ago are sufficient. The entire world, as well as the United Nations, understood the very peculiar vision of President Trump when affirming last May that Paris Agreement decision will “make America great again“.

We refer to the article published in EJIL-Talk on June 5, 2017 by Professor Lavanya Rajamani (India), entittled “Reflections on the US withdrawal from the Paris Climate Change Agreement“.

We have had the opportunity to analyse the official reactions in Latin America to this annoucement of President Trump (see our notepublished in DebateGlobal on June 4, 2017 and entittled: “Reacciones en América Latina a anuncio de retiro de Estados Unidos del Acuerdo de París sobre Cambio Climático“). In the conclusion, it can be read that:

“Más allá del estilo tan peculiar de anunciar cosas (y luego reflexionar sobre el impacto que causan) que exhibe desde su llegada a la Casa Blanca el Presidente Donald Trump, desde el punto de visto estríctamente jurídico, la prohibición expresa de hacer reservas a este tratado como tal (véase artículo 27 del Acuerdo de París) conlleva la imposibilidad de limitar o de modular el alcance de algunas de sus disposiciones. Técnicamente, Estados Unidos deberá en este caso proceder a denunciar el tratado, o bien proceder a una inédita solicitud que esperan (ansiosos) tanto el depositario del convenio de París como sus Estados Partes, así como también los especialistas en derecho internacional“.

The text of the letter signed by Ambassador Nikki Haley, dated August 4, 2017, reproduced in this article, reads as follow:

“The Representative of the Unites States of America to the United Nations presents her compliments to the Secretary-General of the United Nations.

This is to inform the Secretary-General, in connection with the Paris Agreement, adopted at Paris on December 12, 2015 (“the Agreement”), that the United States intends to exercise its right to withdraw from the Agreement. Unless the United States identifies suitable terms for reengagement, the United States will submit to the Secretary-General, in accordance with Article 28, paragraph 1 of the Agreement, formal written notification of its withdrawal as soon as it is eligible to do so. Pending the submission of that notification, in the interest of transparency for parties to the Agreement, the United States requests that the Secretary-General inform the parties to the Agreement and the States entitled to become parties to the Agreement of this communication relating to the Agreement.

The Representative of the Unites States of America to the United Nations avails herself of the opportunity to renew to the Secretary-General the assurances of her highest consideration”.

It seems to be a very first time that a State notifies its intention instead of its decision to withdraw a treaty. On another hand, it must be noted that to notify its intention to withdraw a treaty and to announce at the same time that the United States will “reengage”, is also something very new in international law: mainly when it is a treaty containing a clause on prohibition of reservations (Article 27).

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