Interpretation of Article 21, Paris Agreement

Legal assistance paper

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Date produced: 17/10/2016

Is the 30-day delay in Article 21.1 considered a third “condition” relevant for the interpretation of Article 21.3 or are the two triggers the only conditions?

In other words we see two scenarios depending on whether there are 2 or 3 conditions to be fulfilled in Article 21.1. If we consider the conditions to entry into force in Article 21.1 as only being the 55 parties and 55% triggers, then:

  • Everyone who ratified before 5 Oct becomes a Party on 4 November, and
  • Everyone who ratifies after 5 Oct becomes a Party 30 days after ratifying (and ratifying on 6

Oct means party on 5 Nov, for example)

But if we consider the conditions to entry into force in Article 21.1 as including a 30-day stasis period once the two triggers are met then we have a different situation:

  • Everyone who ratified before 4 Nov becomes a Party on 4 November, and

  • Everyone who ratifies on or after 4 Nov becomes a Party 30 days after ratifying

Summary:

The short answer to the query above is that there are only two conditions for entry into force of the Paris Agreement: the requirements that 1) 55 Parties to the Convention ratify the Paris Agreement; and 2) these 55 Parties account in total for at least an estimated 55 percent of total global greenhouse emissions (Paris Agreement, Article 21.1).

Advice:

1.Definitive entry into force and entry into force for a State

Article 21.1 provides for the definitive entry into force of the Paris Agreement, in other words it describes the moment in time when the Paris Agreement becomes legally binding on the Parties to it. In this case, the two conditions set out in the summary above.

Article 21.3, on the other hand, sets out the manner in which a country or regional economic integration organisation expresses its consent to be bound by the Paris Agreement after it has already entered into force.

The separation of these two concepts: 1) definitive entry into force of a treaty; and 2) entry into force for a State, is common to most international multilateral treaties, as guided by article 24 of the 1969 Vienna Convention on the law of treaties.

2. Waiting period

A number of international treaties include a period of delay between the conditions being met for entry into force and entry into force itself. Generally, the delay is meant to allow the countries concerned sufficient time to consider the legal consequences of entry into force. For example, in the case of the rapid entry into force of the Paris Agreement, there is much to be considered regarding the handling of the first meeting of the CMA, and it could be argued in hindsight that the thirty-day period agreed in Paris is not long enough.

With respect to Article 21.3, which governs the manner in which a country expresses its consent to be bound by the Paris Agreement, the thirty-day waiting period allows individual countries to make preparations for any additional rights and obligations the Agreement may entail. For countries to receive equal treatment, the thirty-day requirement in Article 21.3 must apply to all, and does so in the context of the Paris.

3. Signature of the Paris Agreement

As is common with most multilateral treaties, the Paris Agreement provides for signature of the Agreement in advance of ratification, acceptance or approval.[1] While signing the Paris Agreement does not legally bind a country to its provisions, it does indicate the country’s intent to take steps to express its consent to be bound by the treaty at a later date.

Signature also creates an obligation, in the period between signature and ratification, acceptance or approval, to refrain in good faith from acts that would defeat the object and purpose of the treaty.[2] The fact that approximately 90% of the Parties to the Convention have already signed the Paris Agreement provides strong evidence of universal intent to be bound by its provisions.

4. Expressions of intent to be inclusive

The Paris Agreement will enter into force on 4 November, three days in advance of the official opening of COP 22. Therefore, in accordance with Article 16.6 of the Agreement, the first session of the CMA will be convened in conjunction with the Marrakech COP. Parties to the Paris Agreement will be responsible for governance, oversight, leadership and decision-making over the Agreement. For those Parties to the Convention that are not Parties to the Paris Agreement, paragraph 16.2 provides as follows:

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 has obvious implications for completion of the “rule book” for the Paris Agreement, which will require “buy in” by all (Parties and observers) for the Agreement to achieve its objectives.

Concern over participation occurred in 2006 shortly after the Kyoto Protocol entered into force.  At that time, the SBI recommended an inclusive approach and in subsequent practice Parties to the Convention made interventions and submitted textual proposals on draft texts under consideration.[3]

A similar approach could be taken in the context of the Paris Agreement and the CMA. It is my understanding that in informal discussions with high-level officials in advance of COP 22, the incoming Moroccan Presidency has expressed the intent of ensuring that the development of the rule book for the Paris Agreement moves forward in a way that is both inclusive and efficient.

Clarification question:

 In section I the advice refers to Art 21.3 relating to becoming a Party after entry into force of the Agreement. But Art 21.3 actually refers to fulfilment of Art21.1 conditions rather than entry into force (that latter being what international treaties usually do but it might not be in this case). So, is the adviser suggesting that Art 21.3 should be interpreted in such a way that fulfilment of the conditions in Art 21.1 is synonymous with entry into force? This distinction is important because if, as the adviser suggests, the 55/55% triggers are the only conditions in Art 21.1, then there’s a thirty day period between fulfilment of the conditions in Art 21.1 and entry into force of the Agreement.

Further advice:

The formulation of Article 21 is not uncommon to multilateral treaties, and Article 21.3 should be interpreted literally.  A country depositing its instruments of ratification, acceptance or approval after the conditions in Article 21.1 have been met (i.e. 5 October 2016) will be bound by (become a Party to) the Paris Agreement thirty days after the date of deposit.  Therefore, should a Party deposit its instruments of ratification on 13 October 2016 (e.g. Costa Rica), it would become a Party to the Paris Agreement on 12 November 2016.

This advice relies in large part on the following excerpt from the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, prepared by the Treaty Section of the UN Office of Legal Affairs (1999), p 73 and available athttps://treaties.un.org/doc/source/publications/practice/summary_english.pdf:

“The consistent practice of the Secretary-General, as depositary, has been to consider that “thereafter” applies to the date of the fulfilment of the conditions for the general entry into force and not to the date of the actual entry into force. This is based on the assumption that all participants are entitled to an equal waiting period between the deposit of their instrument and the effective date. A contrary interpretation would result in an instrument possibly taking effect in one day (if it were deposited the day before the actual date for the general entry into force); while not inconceivable, such an interpretation would result in many practical difficulties. It is precisely to avoid such ambiguity that almost all subsequent treaties deposited with the Secretary-General and which provide for an intervening period follow the wording of article 84, paragraph 2, of the Vienna Convention on the Law of Treaties…” [emphasis added]

The client may also wish to refer to examples provided in the “Treaty Handbook” prepared by the United Nations Treaty Section of the Office of Legal Affairs (2012 ed), pp 22 – 23 available at https://treaties.un.org/doc/source/publications/THB/English.pdf.

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[3] Entry into force of the Paris Agreement: legal requirements and implications (Information note prepared by the UNFCCC Legal Affairs Programme), para 19.

[1] Paris Agreement, Article 20.

[2] Vienna Convention on the law of treaties, Article 18.