Faculty Notes

Prof. Julian Ku Quoted on Legality of Paris Climate Change Agreement in Natural Resources Defense Council’s onEarth

Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law, Faculty Director of International Programs

Can Congress Stop the Climate Change Deal?
Here are the Senate’s options for trying to muck up the international agreement made in Paris.

By Brian Palmer
onEarth Earthwire
Dec. 21, 2015


The State Department’s legal theory is that international agreements lacking new and material legal obligations are not treaties under U.S. law, and therefore need not undergo the Senate’s advice and consent process. Avoid new legal obligations, and you can avoid the Senate.

The heart of the Paris agreement—Article 4, in which the parties commit to limiting greenhouse gas emissions—exemplifies this approach. There’s no mention of “intended nationally determined contributions” (INDCs), the carbon reduction pledges each country submitted before the Paris conference. They’re merely referenced, with each country maintaining the “aim of achieving the objectives” of the INDCs (emphasis added).

“That’s code for ‘not legally binding,’” says Julian Ku, a law professor at Hofstra University . “It’s something we’re trying to do but not promising to do.”

Even with these linguistic tweaks, the Obama administration isn’t home free. The legitimacy of an executive agreement has rarely been challenged in court, so it’s hard to predict how the Supreme Court would settle a dispute. The good news, for President Obama and people who care about climate change, is that judges dislike mediating arguments between the executive and legislative branches of government, particularly when it comes to matters of foreign policy. Professor Ku points to the 1981 case of Dames & Moore v. Regan, in which the court reluctantly let stand President Carter’s backroom deal to free U.S. hostages in Iran in exchange for releasing impounded assets. If the Supreme Court can punt, it probably will.

Read the full article.

Latest Tweets

  • Watch Prof. @jamesjsample discuss articles of impeachment and the latest on the impeachment process with… https://t.co/dsiFA438ol
    about 5 days ago
  • Prof. Fred Klein Presents to Nassau County District and County Court Judges on New Criminal Discovery Law in New Yo… https://t.co/0gnceVkLZQ
    about 6 days ago
  • Prof. Andrew Schepard Presents on Forensic Parenting Evaluations at 10th Judicial District 3rd Annual Matrimonial C… https://t.co/XEeEnJx6vh
    about 6 days ago
  • Prof. Norman Silber Presents on the ‘Revolt Against the Regulation of Philanthropy’ at 2019 ARNOVA Annual Conference https://t.co/eSw9yEQNHR
    about 6 days ago
  • Article by Prof. Norman Silber on Foreign Interference in National Elections Published in Northwestern University L… https://t.co/xh6W6WYZfP
    about 6 days ago
  • Watch Prof. @jamesjsample discuss the latest regarding the impeachment inquiry with @PIXScott on @PIX11News:… https://t.co/p3nyM9uoc1
    about 7 days ago