The recent decision by the Trump administration to withdraw the United States from the UN Framework Convention on Climate Change (UNFCCC) has sparked significant legal debate among experts. Some legal authorities argue that this move may not only be unprecedented but also potentially illegal. Harold Hongju Koh, a former head lawyer for the US State Department, expressed to the Guardian that, “In my legal opinion, he does not have the authority” to unilaterally exit such a vital international agreement.
In a presidential memorandum issued on Wednesday, President Trump stated that the US “shall withdraw” from the UNFCCC along with 65 other organizations that his administration deemed “contrary to the interests of the United States.” This decision marks a historic moment as it is the first instance where any country has sought to exit this crucial climate agreement. According to the stipulations of the UNFCCC, a one-year notice is required for withdrawal, meaning that the US remains a party for at least another year. The memorandum did not clarify whether the administration would submit a formal notice of termination to the UN.
A spokesperson from the State Department indicated that the administration will take all necessary steps to expedite the withdrawal from these organizations. Secretary of State Marco Rubio also commented on the withdrawal, stating that the Trump administration is exiting treaties and institutions it views as “redundant, mismanaged, or a threat to our nation’s sovereignty.” This perspective reflects a broader strategy of reassessing America's international commitments under the current administration.
The legal implications of this withdrawal are significant. The UNFCCC was ratified in 1992 with the consultation and approval of the Senate, which raises questions about whether the president can unilaterally withdraw from it. Michael Gerrard, a climate law expert at Columbia University, emphasized that there is “an open question” regarding the president's power in this context. While the UNFCCC and the Paris Agreement both allow for withdrawal with a year’s written notice, the Paris Agreement was never ratified by the Senate, complicating the legal landscape.
Some scholars argue that presidents have historically claimed the authority to withdraw the US from treaties without the need for Congressional approval. Curtis Bradley, a law professor at the University of Chicago, noted that in practice, presidents have often asserted this power. However, Koh challenges this notion, arguing that congressional silence should not be taken as consent to exit a treaty. He advocates for a “mirror principle” where the same level of congressional approval required to enter a treaty should also apply for withdrawal.
Critics, including Rhode Island Senator Sheldon Whitehouse, have labeled the withdrawal as “not just corrupt, it’s illegal,” emphasizing that such actions threaten not only environmental policy but also the well-being of millions affected by climate change. He believes that only the Senate should have the authority to withdraw from treaties once ratified.
The US Constitution does not explicitly outline the process for treaty withdrawal, stating only that the president has the power to make treaties with Senate consent. The Supreme Court has not definitively ruled on this matter, adding another layer of complexity to the situation. Jean Galbraith, an international law expert, highlights that understanding the president's actions in withdrawing from treaties is intricate, as it blurs the lines of executive power and legislative oversight.
Experts remain divided on what it would take for the US to re-enter the UNFCCC. Some believe Trump's exit nullifies the 1992 Senate vote supporting the agreement, suggesting that a new approval process would be required. Others argue that the previous Senate vote still holds, allowing a future president to rejoin without needing another two-thirds vote. Sue Biniaz, a former climate envoy, asserts that climate action will continue despite the withdrawal and that rejoining the UNFCCC could happen seamlessly based on the original Senate approval.
Trump's decision to exit the UNFCCC sends a concerning message to the international community, portraying the US as an unreliable partner in long-term climate commitments. Galbraith noted that this action reflects a broader reluctance to address the escalating climate crisis. As the world grapples with increasing environmental challenges, Melinda St Louis from Public Citizen’s Global Trade Watch warned that this withdrawal could lead to “irreparable damage” to both current and future generations.