|Congressional Research Service Reports
Redistributed as a Service of the NLE*
98-349: Global Climate Change:
Selected Legal Questions About the Kyoto Protocol
Updated January 10, 2001
On November 12, 1998, the United States signed the
Kyoto Protocol to the United Nations Framework Convention on Climate Change. The
Protocol had been concluded a year earlier (on December 10, 1997) by delegates
from 161 nations and sets binding targets for reduction of emissions of
greenhouse gases by developed nations. It is not yet in effect internationally
and cannot be legally binding on the U.S. unless and until the Senate gives its
advice and consent. Nonetheless, signature by the U.S. does impose an obligation
on the U.S. to refrain from actions that would undermine the Protocol's object
and purpose. That obligation is not the same as implementing the Protocol, and
there does not appear to be any legal basis for implementing the Protocol
provisionally pending its ratification. Congress can, however, pursuant to its
own constitutional authority, adopt measures which parallel or support the
obligations of the Protocol. This report addresses each of these legal issues.
It will be updated as events warrant.
(1) Is the United States now legally bound by the
No. The Kyoto Protocol was negotiated as a means of
implementing the United Nations Framework Convention on Climate Change,
(1) to which the Senate gave its advice and consent on October 7,
(2) and by which the U.S. is legally bound. The Framework Convention
set a general objective of stabilizing greenhouse gas concentrations in the
atmosphere at levels that would prevent global warming and anticipated that the
Parties would adopt protocols to the Convention in order to achieve that
objective. But such protocols must themselves be ratified by the participating
states and meet their own standards for going into effect internationally before
they can become legally binding. In this instance the Kyoto Protocol has been
negotiated, and the Clinton Administration signed it and indicated its intent
eventually to seek its ratification. But the Protocol has not as yet been
ratified by the U.S. or even submitted to the Senate for its advice and consent,
nor will it enter into force internationally until it has been ratified by at
least 55 states that accounted for at least 55% of the total carbon dioxide
emissions in 1990. (3) Both steps
-- ratification by the U.S. and entry into force internationally -- are
necessary for the Protocol to be legally binding on the U.S.
(2) What is the legal effect of the United States
signing the Kyoto Protocol?
The Kyoto Protocol provided that it was open for
signature from March 16, 1998, to March 15, 1999, and states that it is subject
to ratification, acceptance, or approval. (4) The United
States initially delayed signing as a means of encouraging fuller participation
in emissions reductions by developing states. But on November 12, 1998, it
became the 58th nation (and the last major industrialized nation) to
Signature in itself does not make the Protocol
legally binding on the United States. But it does have at least three
consequences. First, signature authenticates the text of an agreement,
i.e., it represents "the assent of the negotiating states that a given
text expresses the agreement they have reached." (5) Secondly,
it initiates the process by which the U.S. could become legally bound. That is,
signature of a treaty is essentially a political statement of approval and
represents "at least a moral obligation to seek (its) ratification."
(6) Signature of the Protocol, thus, is a public declaration of the
intent of the U.S. to make it legally binding. That is only the first step in
the process, however. As noted above, the Protocol cannot become legally binding
on the U.S. until it is submitted to the Senate, the Senate gives its advice and
consent, the President signs and deposits the appropriate instruments of
ratification with the United Nations, and the Protocol gains sufficient
ratifications to enter into force internationally.
Finally, signature of a treaty or protocol obligates
a state "to refrain from acts that would defeat the object and purpose of the
agreement." (7) Article 18
of the Vienna Convention on the Law of Treaties states the matter more
completely as follows:
A State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a party
to the treaty; or
(b) it has expressed its consent to be bound by the
treaty, pending the entry into force of the treaty and provided that such
entry into force is not unduly delayed.
The United States has not ratified the Vienna
Convention but this portion likely represents customary international law on the
subject. (9) As a
practical matter, however, it is often difficult to determine what this
obligation entails, i.e., "[i]t is often unclear what actions would
have [the] effect" of defeating a treaty's object and purpose.
(10) The Restatement suggests that one criterion may be
whether a particular action has a negative effect on what would be a state's
obligations under a treaty which is irreversible. (11)
(3) Can the Kyoto Protocol be treated as an
executive agreement for which Senate or Congressional consent is not
Executive agreements are not mentioned as such in the
Constitution, but their existence has been validated by historical practice and
judicial decision. (12) Three
categories of executive agreements are generally recognized: (1)
congressionally-authorized executive agreements, (2) executive agreements
concluded pursuant to existing treaties, and (3) Presidential or "sole"
executive agreements made on the basis of the President's independent
The full scope of the President's authority to
conclude and implement executive agreements remains a subject of scholarly and
political debate. But with respect to the Kyoto Protocol the issue appears to
have been anticipated when the Senate gave its advice and consent to the
Framework Convention on Climate Change in 1992. During the hearing on the
Convention the Senate Foreign Relations Committee propounded to the
Administration the general question of whether protocols and amendments to the
Convention and to the Convention's Annexes would be submitted to the Senate for
its advice and consent. The Bush Administration responded as follows:
Amendments to the convention will be submitted to
the Senate for its advice and consent. Amendments to the convention's annex
(i.e., changes in the lists of countries contained in annex I and annex II)
would not be submitted to the Senate for its advice and consent. With respect
to protocols, given that a protocol could be adopted on any number of
subjects, treatment of any given protocol would depend on its subject matter.
However, we would expect that any protocol would be submitted to the Senate
for its advice and consent.
The committee also asked more specifically whether a
protocol containing targets and timetables for emissions reductions would be
submitted to the Senate. The Administration responded:
If such a protocol were negotiated and adopted, and
the United States wished to become a party, we would expect such a protocol to
be submitted to the Senate.
The Senate did not attach any formal conditions to
its resolution of ratification for the Convention. But the report of the Senate
Foreign Relations Committee on the resolution stated as follows:
The Committee notes that a decision by the
Conference of the Parties to adopt targets and timetables would have to be
submitted to the Senate for its advice and consent before the United States
could deposit its instruments of ratification for such an agreement. The
Committee notes further that a decision by the executive branch to reinterpret
the Convention to apply legally binding targets and timetables for reducing
emissions of greenhouse gases to the United States would alter the "shared
understanding" of the Convention between the Senate and the executive branch
and would therefore require the Senate's advice and consent.
The committee made clear, in other words, its view
that "[t]he final framework convention contains no legally binding commitments
to reduce greenhouse gas emissions" and its intent that any future agreement
containing legally binding targets and timetables for reducing such emissions
would have to be submitted to the Senate. The Bush Administration concurred with
that view and agreed to submit any such agreement. That commitment was cited
during Senate debate on the resolution of ratification as an important element
of the Senate's consent. (16) While
these statements may not be as legally binding as a formal condition to the
Senate's resolution of ratification for the 1992 Convention, it is doubtful that
any administration could ignore them.
The Clinton Administration, it might be noted,
repeatedly stated that it intended to submit the Kyoto Protocol to the Senate
for its advice and consent (although it did not do so before the end of its
(4) Can the Kyoto Protocol, prior to ratification,
be used as a basis for regulations imposing emissions restrictions on
As noted, treaties generally are not legally
effective until they have been ratified and have gone into effect
internationally. But on rare occasion in the past treaties have been given
provisional application prior to their ratification, i.e., measures
have been taken to carry them out even though they have not yet been ratified by
the U.S. The Vienna Convention on the Law of Treaties states:
1. A treaty or a part of a treaty is applied
provisionally pending its entry into force if:
a. the treaty itself so provides;
b. the negotiating States have in some other manner
A few treaties that the U.S. has signed have been
given provisional application -- the Maritime Boundary Agreement between the
United States and Cuba, (18) the
Maritime Boundaries Agreement between the U.S. and Mexico, (19) the 1971
International Wheat Agreement, (20) and,
arguably, the 1979 SALT II Treaty on the Limitation of Strategic Offensive
Arms. (21) Most
recently, the U.S. agreed to the provisional application of a revised deep
seabed regime under the Law of the Sea (LOS) Convention. (22)
Nonetheless, the provisional application of a treaty remains an unusual
For the U.S. the provisional application of a treaty
"is in essence an executive agreement to undertake temporarily what the treaty
may call for permanently." (23) According
to the Restatement, such an executive agreement "normally must rest on
the President's own constitutional authority"; (24) but it
also appears possible that authority can be buttressed by Congressional or
Senate authorization or approval, express or implied. (25)
However, there does not appear to be any clear legal
authority that could be invoked to sustain the provisional application of the
Kyoto Protocol. The parties that negotiated the Protocol did not agree to do so.
Nor has Congress assented to, or otherwise authorized, the provisional
implementation of the Protocol either expressly or by implication. Indeed, the
actions of the Senate and Congress have been decidedly to the contrary. On July
25, 1997, for instance, the Senate unanimously adopted (95-0) a resolution
expressing the view that the U.S. should not sign any agreement at Kyoto that
would commit developed nations, but not developing ones, to reduce or limit
greenhouse emissions by a certain date or that would do "serious harm" to the
U.S. economy. The resolution further stated the view that any agreement which
would require Senate advice and consent should be accompanied by a detailed
analysis of its economic impact and of any legislation and regulations necessary
to implement the agreement. (26) Congress,
moreover, has repeatedly barred any expenditure of appropriations to implement
the Protocol. (27) Finally,
it appears doubtful that the President could implement the Protocol on the basis
of his independent constitutional authority. (28)
This does not mean, however, that measures which
might parallel or support the obligations of the Kyoto Protocol cannot be
implemented. The Clinton Administration, for instance, included climate change
initiatives in some of its budget proposals, and Congress sometimes enacted them
in whole or in part. (29) But the
legal authority for the implementation of those initiatives is not the Kyoto
Protocol but Congress' authorization and appropriation of funds.
1. (back)TIAS ____
2. (back)138 CONG.
REC. 33521-27 (Oct. 7, 1992).
Protocol, Art. 24. As of November 27, 2000, the Protocol had been signed by 84
states and ratified by 31. No major industrialized state has at yet ratified the
Protocol. See the official website for the Framework Convention: http://www.unfccc.de/index.html
of State (Whiteman, Marjorie, ed.), Digest of International Law, Vol.
14 (1968), at 40.
Law Institute, Restatement (Third) of the Foreign Relations Law of the
United States, Vol. 1 (1987), 312, Comment d, at 173 (hereinafter
Convention on the Law of Treaties, Exec. L, 92d Cong., 1st Sess.
(1971), Art. XVIII.
United States views most of the Vienna Convention as codifying customary
supra, Comment i, at 174.
Treaties and Other International Agreements, supra, n.8, at 52-68.
Before the Senate Committee on Foreign Relations on the U.N. Framework
Convention on Climate Change, 102d Cong., 2d Sess. (1992), at 105
102-55, 102d Cong., 2d Sess. (1992), at 14.
16. (back)See 138
CONG. REC. 33521 (Oct. 7, 1992) (statement of Sen. McConnell).
Convention, supra, Art. 25.
18. (back)Exec. G,
96th Cong., 1st Sess. (1979). See Senate Exec. Rept. 96-49
(to accompany Execs. F, G, and H, 96-1) (1979). The treaty itself contained a
provision providing that the maritime boundaries would be applied provisionally
for up to two years pending ratification, and that provision has been renewed by
a periodic exchanges of notes from the time of its signing in 1977 to the
19. (back)Exec. F,
96th Cong., 1st Sess. (1979). The maritime boundaries set
forth in the treaty were identical to those in an executive agreement concluded
in 1976, and the executive agreement provided that it would remain provisionally
in effect "pending final determination by treaty of the Maritime Boundaries
between the two countries. The Senate gave its consent to the treaty in October,
1997, and final ratification occurred in November. See 143 CONG. REC. S 11165
(daily ed. Oct. 23, 1997).
20. (back)See CRS,
Treaties and Other International Agreements: The Role of the United States
Senate, 103d Cong., 1st Sess. (Comm. Print 1993), at 85.
Ratification of the treaty was forestalled by the Soviet invasion of
Afghanistan, but both parties stated independently that they would observe the
restraints of the treaty so long as the other party did so.
22. (back)The LOS
Convention was put forward by the United Nations General Assembly as a
multilateral treaty in 1982. The U.S. supported much of the Convention but chose
not to sign it or to pursue ratification because of objections to the deep
seabed regime set forth in Part XI. To accommodate the U.S., Part XI was
renegotiated in the early 1990s. In order to allow the participation of
industrial nations such as the U.S. which had not yet ratified the Convention in
the policy making body for the deep seabed (the Council of the International
Sea-Bed Authority), the agreement provided that it could be provisionally
applied even before ratification. The U.S. voted in favor of the General
Assembly resolution endorsing the Agreement revising Part XI (GA Res. 48/263
(July 28, 1994)); subsequently signed the Agreement; submitted the LOS
Convention as amended by the Agreement to the Senate for its advice and consent
(Treaty Doc. 103-39 (Oct. 7, 1994)); and began participating in the Council of
the International Sea-Bed Authority. The Senate, however, has not as yet given
its advice and consent; and the provisional application of the Agreement, by its
terms, terminated in November, 1998.
supra, Comment l, at 175.
See also Charney, Jonathan, "U.S. Provisional Application of the 1994 Deep
Seabed Agreement," 88 Amer. J. Int. Law 705 (1994) (arguing that
Congressional participation in, and support for, the LOS Convention
negotiations, the compatibility of the Agreement with the "Deep Seabed Hard
Mineral Resources Act" adopted by Congress in 1988, and the authority given in
the "State Department Basic Authorities Act" for temporary participation in
international institutions supported the provisional application of the
26. (back)S.Res. 98,
105th Cong., 1st Sess., adopted at 143 CONG. REC. S 8138
(daily ed. July 25, 1997).
e.g., 517 of the Treasury Department Appropriations Act for Fiscal 2001,
enacted as part of the omnibus Consolidated Appropriations Act, P.L.
106-654 (Dec. 21, 2000).
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In that case President
Truman's claim of independent constitutional authority to take control of and
operate the nation's steel mills to ensure continued production during the
Korean War was rejected by the Supreme Court. The President claimed his action
to be legally justified not only on the basis of an "inherent" power to protect
the well-being and safety of the nation but also on the basis of the
Commander-in-Chief and executive power clauses of Article II of the
Constitution. But the Court rejected his claims individually and in the
aggregate, finding his actions to be a usurpation of the lawmaking power of
105-277 (Oct. 21, 1998).
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