Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement

Abstract

The United States’ position in, and conduct of, the negotiations leading to the Paris Agreement, as with almost all international diplomacy leading to reciprocal international undertakings conducted by that country, reflected not only internal politics, but also the constraints of domestic law. The United States is not unique in this respect, but it is unusual in the extent to, and manner in which, its municipal law constrains the creation of international commitments. This article disaggregates US international and domestic climate policy as it developed prior to the Paris negotiations and analyses how those dynamics played out on the multilateral stage, influencing the shape of the Paris Outcome even to the name of the instrument. Among the subjects analysed are (1) the extent of the Executive’s powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement on limiting emissions of climate-disrupting gases; (3) domestic implementation of the US INDC; (4) executive agreements as vehicles for undertaking internationally legally binding commitments on climate; and (5) the role of the courts.