But it has also been ridiculed for being “non-binding.” That is to say that America and nearly 200 other countries all got together and agreed to try really, really hard to slow climate change and to submit ongoing progress reports, but didn’t set up penalties within the agreement.
— America's Power (@AmericasPower) December 14, 2015
Non-binding, though, does not mean meaningless.
It’s worth taking a moment and thinking about what a binding agreement is. If I offer to pick your child up from daycare Thursday afternoon, is that a binding agreement? You can’t, strictly speaking, punish me if I leave little Sarah sitting on the curb. But — and this is a big but — you can shame me. You can avoid me, distrust me, and not make any more social agreements with me.
This idea of social pressure and participation does not only apply to carpools. It also applies to the international community. Sure, China could renege on its promises to transition off coal. The United States could decide it’s not going to give any money to developing nations to help build renewable energy. But that would make for pretty bad foreign relations.
In fact, most international agreements rely on countries’ desire to continue having good relationships with their counterparts, Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, told ThinkProgress.
“International agreements operate under good faith,” Burger said. “Whether a country is an upstanding member of the international community is what’s at stake.”
Of course, this particular agreement has even larger stakes, as well. Nearly 200 countries came together with the recognition that continuing to burn fossil fuels and emit greenhouse gases is going to irrevocably alter our environment. In some ways, the Paris agreement is simply codifying what the entire international community wants to do: Stop global warming.
“The leaders of the world recognize that the consequences of noncompliance are disastrous. We are looking at a wholesale transformation of our global climate,” Burger said. “The main incentive here for compliance is not the threat of some civil penalty — non-compliance would mean environmental disaster.”
The Paris agreement, with its hefty requirements for transparency and reporting, offers another meaningful vehicle toward compliance: public opinion. Civil society has already played a large and important role in getting to this point. Now, environmental groups will take on the role of enforcer, Burger said.
“Hopefully, what a country will see is that if it’s missing its [submitted] targets, domestic constituencies will be mobilizing to force government action,” he said. “That’s going to be the primary mover of emissions reductions worldwide.”
Furthermore, the Senate already ratified this agreement. Well, to be specific, the Senate ratified the formation of the United Nations Framework on Climate Change (UNFCC), a 1992 treaty. That means the United States has already committed to “stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”
“The Paris agreement does not appear to require the U.S. to do anything beyond what it is already committed to doing under the UNFCC,” Burger said.
Last month, Sen. Jim Inhofe (R-OK), along with two colleagues, introduced a resolution that would require Senate ratification of the agreement. When the final text of the deal was released, Inhofe issued a lengthy statement, taking issue with the document and its implementation.
“The news remains the same,” Inhofe said. “This agreement is no more binding than any other ‘agreement’ from any Conference of the Parties over the last 21 years. Senate leadership has already been outspoken in its positions that the United States is not legally bound to any agreement setting emissions targets or any financial commitment to it without approval by Congress.”
Senate Republicans have also threatened that Congress has “the power of the purse” and can restrict overseas investment in clean energy.
The irony, of course, is that some of the people who are dismissing the agreement for not being binding are the same people who would not have ratified a “legally binding” agreement. They are also the people fighting the mechanisms the United States has to reduce carbon emissions.
It’s important, too, to note that “treaty” means different things to different entities. The Senate is required to ratify any agreement that binds — with or without an enforcement mechanism — the United States to financial commitments or actions that it does not already take, under law. If the $200 billion global commitment to developing nations had included specific numbers for the U.S. budget, we would have had to ask the Senate. (In fact, whatever money the United States does allocate will have to go through the Congressional budget process.)
Burger suggested that it’s possible Senate opponents could challenge the legal status of the agreement — whether it needs ratification — in court, but he thinks it would be a difficult case to make.
“The U.S. will have to do more to reduce greenhouse gas emissions,” he said. “But that’s not the touchstone for deciding whether the [agreement] sets new binding commitments.”