Paris Agreement: legal requirements for entering into force
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A presentation by IIED principal researcher Dr Achala Abeysinghe that summarises the Paris Agreement’s legal requirements for entering into force. The presentation was made at the UNEP SouthEast Asia Network of Climate Change Offices (SEAN-CC) post-Paris workshop in Bangkok, Thailand on 23-24 March 2016. More details: http://www.iied.org/helping-vulnerable-countries-achieve-equitable-solutions-climate-law-policy-making-processes
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Paris Agreement: legal requirements for entering into force
- 1. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 1 Dr. Achala Abeysinghe 24/03/2015 Author name Date Dr. Achala Abeysinghe 02/11/2015 SEAN-CC Network: Post Paris Workshop Dr. Achala Abeysinghe Principal Researcher/ Team Leader Global Climate Law, Policy and Governance IIED Paris Agreement: Legal requirements for entering into force
- 2. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 2 Dr. Achala Abeysinghe 24/03/2015 Paris Agreement • A legally binding treaty under international law “an international agreement concluded between States in written form and governed by international law”: Vienna Convention on Law of Treaties 1969 Art. 2.1
- 3. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 3 Dr. Achala Abeysinghe 24/03/2015 The triggers for entering into force • Article 21 : The Agreement shall enter into force on the 30th day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 % of total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession with the Depositary. • Art. 26: The Secretary-General of the United Nations will act as the Depositary of the Agreement
- 4. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 4 Dr. Achala Abeysinghe 24/03/2015 Key steps of entry into force UNFCCC transmits the authentic text to the depository Depository prepares the original and communicates certified true copies to the Parties Agreement open for signature by Parties Parties deposit their instruments of ratification, acceptance, approval or accession Agreement enters into force after 30th day on which at least 55 Parties accounting for 55% of GHG emissions have ratified
- 5. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 5 Dr. Achala Abeysinghe 24/03/2015 Legal terminology Signature: • Only parties to the Convention can sign the Paris Agreement • Signature creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the Agreement. • Signature does not establish the consent to be bound by the provisions of the Agreement and is not enough to enable a country to become a Party to the Paris Agreement. • Qualifies the signatory state to proceed to ratification, acceptance or approval. By signing, parties expresses the willingness to continue in the process. • Heads of State, Heads of Government and Ministers of Foreign Affairs normally sign multilateral treaties on behalf of States. Representatives may sign with written authorization (Arts.10 and 18, Vienna Convention on the Law of Treaties 1969) • Paris Agreement will be open for signature between 22/03/2016 and 21/03/2017.
- 6. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 6 Dr. Achala Abeysinghe 24/03/2015 Ratification, acceptance or approval: • The act whereby a state indicates its consent to be bound by a multilateral treaty • State first take all the required measures for transferring the treaty to its domestic jurisdictional system and allows time for governments ministries to consider the implications of acceptance (or rejection) of the treaty • The process of ratification varies from state to state, according to the demands of their respective Constitutions. • Some national Constitutions require that the Parliament approves the full treaty before ratifying. • In some cases, a simple formal notification to Parliament suffices and the Executive is empowered to ratify it by itself (Canada) • Some requires introducing a domestic legislation or modifying the existing legislation (Sri Lanka) • The process in the United States may require approval by the Senate, Congress, or the President alone can ratify via “presidential executive agreements” (depending on the provisions of the Agreement)
- 7. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 7 Dr. Achala Abeysinghe 24/03/2015 • Fiji, Palau and Marshal Islands have completed the parliamentary processes and ready to deposit their instruments of ratification • Depositing an instrument of ratification means that a country has completed all necessary domestic processes according to its constitution and can now become a Party to the Agreement.
- 8. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 8 Dr. Achala Abeysinghe 24/03/2015 Accession: • "accession" is the act whereby a state become a party to a treaty already signed by other states. • Accession has the same legal effect as ratification, acceptance or approval. • As such, after the one-year signing period of the Paris Agreement, states can join the Agreement through “accession.” This means that depositing an instrument of accession to the Paris Agreement after April 22, 2017 will have the same legal effect as if that country had signed and deposited an instrument of ratification, acceptance or approval before such date.
- 9. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 9 Dr. Achala Abeysinghe 24/03/2015Communicating first Nationally Determined Contributions (NDCs) • Parties are invited to communicate their first NDC when submitting their respective instrument of ratification of the Paris Agreement. • It the Party has already communicated an INDC, this will be considered its First NDC unless the Party decides otherwise.
- 10. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 10 Dr. Achala Abeysinghe 24/03/2015 • No timeline • Analysis suggest that the 55 percent threshold can be achieved if one of the top four emitters; China, US, EU or Russia ratify, together with others to fill the gap. • Implications: Triggers of the entry into force can be met before 2020 • Agreement can be implemented even before 2020. • CMA will start its work before 2020 • Will the rules and modalities be ready? • Countries that are not parties to the Paris Agreement will be left out from the CMA process Is it possible for the Paris Agreement to come into force before 2020?
- 11. Legal requirements for Paris Agreement Entry into Force, Achala Abeysinghe 11 Dr. Achala Abeysinghe 24/03/2015 Thank you! Dr. Achala Abeysinghe Principal Researcher/ Team Leader Global Climate Law, Policy and Governance Team International Institute for Environment and Development Achala.Abeysinghe@iied.org
Editor's Notes
- According to Art. 20 of the Paris Agreement, The Paris Agreement will be open for signature at the UN Headquarters in New York from 22 April 2016 to 21 April 2017. A high-level ceremony for signature will take place on 22 April 2016.
- The process of ratification varies from state to state, according to the demands of their respective Constitutions. Practically all states will allow time for government ministries to consider the implications of acceptance (or rejection) of the treaty (Lowe). The United States, for example, requires approval of 2/3 of the Senate before a treaty can be ratified. When it has budgetary implications though approval by the House of Representatives may be required. In some cases the President is empowered to take on Executive Agreements. In the UK, treaties do not require Parliament approval, but the Parliament may be required to modffy existing domestic legislation. So, in practice, treaties may be submitted for prior ratification by the Parliament as well.