What the Kyoto Protocol Can Tell Us About How Treaties Are Made Today

Although the president leads the country’s foreign policy, the Constitution gives the Senate the exclusive power to approve foreign treaties.

The Kyoto Protocol and the Paris Agreement

In the 1990s, the Senate exercised this authority by opposing the Kyoto Protocol—a global climate agreement strongly supported by President Bill Clinton. Learning from that episode, President Barack Obama sidestepped Capitol Hill when advancing his own climate initiative, the Paris Agreement, in 2015.

Instead of going through the typical treaty-making process, Obama relied on a mix of other presidential powers and legal responsibilities to enter into an executive agreement, which is essentially an international treaty without congressional approval. Although such agreements are easier for presidents to make, they’re also easier for subsequent presidents to tear up when they disagree with their predecessors’ policies, as was done with Obama's treaty during the Trump Administration.

In this video, we dive into two international climate agreements and explore how the Senate and the president have historically jockeyed for power in the treaty-making process.

Transcript: Why the Kyoto Protocol Failed and How U.S. Presidents Make Treaties Today

While the president leads the country’s foreign policy, it’s the United States Senate that has the sole power to approve foreign treaties.

Well, according to the Constitution that’s how it works. But in practice, presidents have increasingly avoided this check on their power.

To understand why, let’s turn back the clock a few decades, to when President Bill Clinton attempted -- and failed -- to use foreign policy to take aim at the growing threat of climate change. In the 1990s, the scientific community was already in agreement: the climate was rapidly changing and a wide range of human activity -- from manufacturing, to driving, to farming -- was to blame. 

Skyrocketing emissions of CO2 and other greenhouse gases were causing the Earth’s atmosphere to warm, increasing the frequency and severity of natural disasters, and foreshadowing catastrophic consequences for the planet and its inhabitants. 

President Bill Clinton knew that climate change was a global problem that required global solutions. So he sent Vice President Al Gore to a major conference convened by the United Nations to negotiate an international agreement intended to reduce the total amount of greenhouse gases being emitted. 

The resulting agreement, known as the Kyoto Protocol, required thirty eight of the world’s richest countries to reduce their emissions by specific amounts, but it did not require less developed countries to reduce their emissions. Instead, this second group would receive funding to develop more environmentally friendly economies as a means to reduce global emissions. 

Notably, China was in this second group, despite the fact that it was undergoing a historic level of economic growth, accompanied by growing annual emissions. 

Meanwhile, opposition to the Kyoto Protocol grew back home in the United States. 

Emissions-heavy industries, including oil companies and car manufacturers, had been pouring money into interest groups to oppose any action that would limit emissions and funded multi-million-dollar ad campaigns questioning the science behind climate change. 

Polling from the time showed that less than half of Americans knew that most scientists agreed that climate change was occurring.

Those interest groups also worked hard to lobby, or influence, Congress, convincing many members -- especially representatives from states with fossil fuel and automobile industries -- that attempts to reduce greenhouse gas emissions would hurt the U.S. economy by making it less competitive with the countries not required to curb their emissions, including China. 

This posed a problem for President Clinton because he alone could not implement all the terms of the treaty. Congress had authority on many of those issues, so Clinton would need congressional approval to move forward. 

However, during the early stages of the treaty negotiations, the Senate passed a unanimous resolution that opposed any treaty committing the U.S. to emissions reductions that did not also commit developing countries to the same standards. 

So the Senate wouldn’t sign on to the Kyoto Protocol, and without its approval, the U.S. did not actually commit to the agreement.

And without U.S. participation, the entire international agreement was weakened. Congress and outside interest groups had checked President Clinton’s foreign policy. 

The setbacks of the Kyoto Protocol have encouraged subsequent presidents to avoid treaties that need Congressional approval so that their foreign policies aren’t similarly blocked. 

Instead, they often rely on a mix of other presidential powers and legal responsibilities to make executive agreements which are essentially international treaties without Congressional approval. 

Executive agreements are easier for presidents to make, but they're also easier for presidents to tear up when they disagree with their predecessors' policies. President Obama joined the 2015 Paris Climate Agreement through an executive agreement only for the next president, Donald Trump, to withdraw the United States and the following president, Joe Biden, to bring the United States back into the agreement. 

So there are downsides to this tactic, but the upside is still large: It gives the President even more control over U.S. foreign policy, helping them get around the domestic factors that might otherwise complicate their decisions and constrain their options.