Early entry into force of the Paris Agreement

Legal assistance paper

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Date produced: 23/05/2016

1. What are the advantages of early entry into force of the Paris Agreement (PA) for Parties’ domestic implementation of the PA;and

2. for those Parties that have not yet ratified the PA, what are the possible legal avenues for ensuring their participation in the construction of the infrastructure of the PA, including through decision-making; please include precedent instances that have succeeded in this, if applicable?

Advice:

Background

Article 21(1) of the Paris Agreement (PA) provides that it will enter into force once at least 55 Parties to the United Nations Framework Convention on Climate Change have deposited their instruments of ratification or accession with the Depositary, the UN Secretary-General, and those parties account for at least 55 per cent of the total global greenhouse gas (GHG) emissions. The agreement will then enter into force 30 days later. For up to date information on the number of Parties who have ratified the Agreement, please see: http://unfccc.int/2860.php.

Note that, as well as relevant primary materials, I have relied on the paper prepared by the UNFCCC Legal Affairs Programme, available here: https://unfccc.int/files/paris_agreement/application/pdf/entry_into_force_of_pa.pdf.

Under article 16(1), the UNFCCC COP will serve as the meeting of the parties to the PA (CMA). On entry into force, the CMA would become operational, and its first session would be scheduled along with the next scheduled meeting of COP (PA, article 16(6)). At its first meeting a number of important decisions would be made about its operation, including the implementation of key aspects of the PA. Moreover, the parties to the PA will exercise governance over the PA, and certain legal obligations will come into force, if not already provisionally applied.

1. Advantages of early entry into force

Once the PA enters into force, the obligations will become legally binding on all its State parties (if not provisionally applied already, as explained below).

The most obvious advantage of its early entry into force is that it will become operational before 2020. The UNFCCC memorandum suggests that the advantages of early entry include:

“11. The early entry into force of the Paris Agreement would have a catalytic effect, spurring strong and decisive action by Parties and stakeholders. The early entry into force of the Agreement would also serve as a strong incentive for all Parties to the Convention to ratify the Agreement as soon as possible to ensure universal participation in its implementation.

12. Upon the entry into force of the Paris Agreement, Parties to the Agreement will enjoy certain rights and privileges and will be subject to specific obligations that Parties to the Convention that are not Parties to the Agreement, including those that are signatories, would not have. Parties to the Agreement are responsible for governance, oversight, leadership and decision-making over the Agreement.”

In addition to being a signal of the global community’s commitment to the PA, there are other advantages to early entry into force:

  • It would reduce uncertainty for Parties and for non‐state actors, and thereby make it more likely that public and private sectors will make decisions that will facilitate the implementation of INDCs and other commitments in the Paris Agreement.
  • On the other hand, a risk associated with late entry into force is that failure to effectively implement INDCs in the interim (as a result of uncertainty surrounding its entry into force) may make some Parties less likely to ratify the PA.
  • Early entry into force allows Parties to operationalize some elements of the PA that would benefit from early adoption well before 2020.
  • Early entry into force can be expected to provide motivation for universal ratification, as those who have not ratified may not have equal opportunity to participate in shaping the new regime.

2. Legal avenues to ensure participation in the construction of the PA infrastructure, including decision making

The early entry into force of the PA may have the effect that only a small number of UNFCCC parties are able to vote on decisions at the first CMA but it would not prevent those States from participating in negotiations or discussions, or submitting working papers. There is every incentive for Parties to the PA to include Non‐parties who intend to become Parties, as universal membership is in the interest of all. 
In addition, it can be argued that the Paris COP decision is a decision under the UNFCCC, which means all Parties to the UNFCCC are entitled to participate in the implementation of the Paris COP decision.

Ad Hoc Working Group and other interim measures

While an Ad Hoc Working Group has been established that can recommend draft decisions, this will also end at the first meeting of the Parties to the Paris Agreement. Nevertheless, a State that is part of the Working Group could in this way play a role in the first round of decision making before the Agreement enters into force, even if it has not yet ratified the agreement by the time of its entry into force.

It also remains the case that States that have not yet ratified the PA, but are party to the UNFCCC, will be able to play a role in the various subsidiary bodies of the UNFCCC which will prepare for the coming into force of the PA. For instance, in the Subsidiary Body for Scientific and Technological Advice, or the Subsidiary Body for Implementation (see the various roles set out for these bodies in decision 1/CP.21, e.g. para. 36).

The Working Group will cease to exist subsequent to the coming into force of the PA. Moreover, once the PA enters into force, the UNFCCC subsidiary bodies may only be presided over by representatives of Parties to the PA (art 16(3), art 18(3)). Moreover, all final decision making will rest with the CMA. Nevertheless, the COP will continue “to oversee the implementation of the work programme resulting from the relevant requests contained in this decision” (decision 1/CP.21, para. 9), suggesting it will have an ongoing supervisory role in which all UNFCCC member states can participate until it has been given effect.

Observer status

Parties to the UNFCCC who have not ratified the PA by the time it enters into force will be observers in the negotiations under CMA, so can make views known. The PA provides in article 16(2) that:

“Parties to the Convention that are not Parties to this Agreement may participate as observers in the proceedings of any session of the Conference of the Parties serving as the meeting of the Parties to this Agreement. When the Conference of the Parties serves as the meeting of the Parties to this Agreement, decisions under this Agreement shall be taken only by those that are Parties to this Agreement.”

This is an identical provision to that existing in the Kyoto Protocol (KP) (article 13). Thus, in looking for precedents as to what could happen where some State parties to the UNFCCC have not yet ratified the PA when it comes into force, it is relevant to consider the position of States that had not ratified the Kyoto Protocol (KP), such as the United States. It could, as a Party to the UNFCCC, attend the meeting of the parties to the KP as an observer. But it did not have the right to take decisions.

The UNFCCC Legal Office notes that “At SBI 24, the SBI recommended an ‘inclusive approach’ regarding the participation of Parties to the Convention that were not Parties to the Kyoto Protocol in contact groups and informal consultations convened to address Kyoto Protocol agenda items. In subsequent practice this meant that such Parties to the Convention could make interventions and submit textual proposals on draft texts under consideration. A similar approach could be envisaged in the context of the Paris Agreement and the CMA.”

Both the KP (art 13(5)) and the PA (art 16(5)) also implement the rules of procedure of the Conference of Parties, which provide essentially the same rule for observers[1], except they state that any observer may participate without the right to vote unless at least one third of the Parties present object. This condition would not apply in the case of the KP or PA, since the rules must be read as subject to the treaty text. Thus observers have a guaranteed right to observe in the CMA.

The specification that decisions can only be taken by those Parties to the Agreement prevents States that have not yet ratified the PA from having a right to vote on decisions. Article 16(1) and (2) provide that the CMA will have the sole authority to take decisions on all matters concerning the PA. Moreover article 25 sets out that each “Party” shall have one vote, making the obvious point that you must be a State party in order to exercise a vote. But it does not prevent non-member States from attending the first CMA, or speaking or participating at it, or making suggested amendments to proposed decisions. In addition, many Parties will still be associated with negotiating groups that will have members who have already ratified, and will be able to make their voices heard through the negotiating groups they belong to.

Of course, politically, the input of States that have not yet ratified may be accorded less weight, particularly if it looks unlikely that those States will ratify. In the case of the KP, the United States ended up having very little clout in the subsequent COPs and amendments to the KP. By contrast, where a State is still going through its internal domestic procedures in good faith to ratify the text of the PA, its views may well carry real weight in the debates.

An alternative, suggested by UNFCCC Legal Affairs, is that in the event that the PA comes into force with the bare minimum number of Parties, the first CMA be convened and then suspended, to allow a greater number of States to ratify it before important decisions concerning the operationalisation and implementation of the Agreement are taken (Legal Affairs Memo, para. 20). The entry into force of the Agreement provides a powerful impetus for those states that have not yet ratified to do so, because otherwise they will not be able to participate in voting on key decisions taken at the first PA. Moreover, there is otherwise a risk that matters will drag out as States fail to ratify in a timely manner, thus losing much of the benefit of early implementation.

Finally, it should be noted that any UNFCCC Party that ratifies the PA before decisions on the implementation of the PA are formally adopted will, of course, have the opportunity to participate in the final decision on their adoption.

Provisional Application

Parties to the UNFCCC may provisionally apply the PA pending its entry into force (decision 1/CP.21, para. 5). The Decision in 1/CP.21 reflects Article 25(1) of the Vienna Convention on the Law of Treaties, which provides that provisional application is available “pending [the treaty’s] entry into force”. This suggests that provisional application is not available once the agreement enters into force, even if its entry into force is early. On the other hand, it could be argued that if the Treaty has not entered into force for a particular State, then that State may continue to give the Treaty obligations provisional application. The International Law Commission is currently considering provisional application, but its reports do not address this particular issue.

Provisional application would not change the rights of the non-ratifying States to act as observers, but not to be able to exercise votes. But it has the effect that those States who have notified that they are provisionally applying the Convention would be legally bound by the obligations within it, including any decisions taken by the COP. Moreover, States that are provisionally applying the treaty may, again, have greater political weight in the discussions, even if they cannot ultimately vote.

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[1] The UNFCCC COP never adopted final rules of procedure, but the ones included for decision at the Second COP are accepted as definitive, barring the rules on voting: “Organizational Matters: Adoption of the Rules of Procedure”, Note by the Secretariat, https://unfccc.int/sites/default/files/resource/02_0.pdf, rule 6.