What are the legal implications, and pros and cons, of the various options for entry into force provision in the September 2015 draft of the Geneva text?
Option 1: This agreement [shall][will] [enter into force][come into effect on and be implemented from 2020] [on the[ thirtieth][ ninetieth] day after the date on which not less than [X] [a number that is not over- or under-inclusive] Parties to the Convention have deposited their] [subject to the deposit of [X] number of] instruments of ratification, acceptance, approval or accession;
Implications: The agreement enters into force with a single trigger when a significant number of states express their consent to be bound by the agreement.
- Ensures respect for the sovereignty of states involved by conditioning entry into force with the explicit act of consent by adequate number of parties;
- Increases the chances of adherence and implementation if more states are actively involved in giving consent, they are more likely to be involved in the activities prescribed by the agreement.
- May delay entry into force due to burdensome administrative formalities if states do not actively provide consent. This risk is mitigated with a lower number of required states listed as a condition, but the lower the number required, the less it satisfies the advantage of respecting state sovereignty by requiring the express consent of an adequate number of states.
- Conditions the important vital principles in the agreement on burdensome administrative formalities that delay and potentially frustrate the achievement of its objectives.
Option 2: A double threshold that includes both a number of Parties ratifying and a [percentage of global emission reductions covered by the ratifying Parties][minimum of global emissions from Parties];
Implications: The agreement enters into force with a double trigger when both a number of states have expressed consent as in option 1, and when that number of states includes a certain percentage of global emissions – or in the alternative when a minimum threshold amount of global emissions from all Parties, regardless of their classification.
- The first alternative outlined ensures that the agreement will not enter into force without the express consent of an appropriate number of states in order to respect state sovereignty;
- Incorporating a minimum of global emissions from Parties in general rather than Annex I Parties, gives non-Annex I Parties, who may now have higher emissions and heavier burdens than they did in 1990, more legal weight rather than conditioning entry into force solely on the consent of Annex I states;
- It could be advantageous if the number of states required to express consent is relatively low, but still respecting the requirement of consent, and those states in turn represent the majority of global emissions.
- Makes entry into force more burdensome with two required conditions;
- It could potentially be problematic if a number of developing countries express the required consent but their combined emissions do not meet the required threshold, allowing some higher emitters to prevent the entry into force if the required percentage is too high to be met by the developing countries alone.
Option 3: This agreement [shall][will] enter into force [on [X/X/2020]] [1 January 2020 at the latest], provided that [X] [number of Parties have deposited their instruments of ratification, acceptance, approval or accession and that the total of emissions of such Parties] [constitutes X per cent of the global total of emissions in year X] [covers [in total X gigatonnes of carbon dioxide equivalent]]. [If such thresholds have not been met by X date, this agreement will enter into force X days after the thresholds have been met];
Implications: The agreement enters into force on the date of the deadline provided so long as those states have expressed consent to be bound by the agreement and those states account for a certain percentage of global total emissions in a given year. If those conditions have not been met by the deadline, then it will enter into force a certain number of days after those conditions have been met.
- Creates a deadline and incentive for states to express consent so that the target can be met;
- If the required majority of states expressed consent and represent the required amount of total emissions before the deadline, it seems the agreement would still not enter into force until that date;
- Could work as a disincentive for states to actively express consent at an early stage knowing the entry into force conditions could still be met in, say, 2025;
- The deadline and incentive become rather moot if the agreement remains in limbo waiting for the relevant majority of states equaling the required majority of emissions to express their consent.
Option 4: Entry into force upon either a sufficiently high number X of Parties having deposited their instruments of ratification, acceptance, approval or accession, or a percentage X of global greenhouse gas emissions being covered, whichever occurs first, but not earlier than on 1 January 2020;
Implications: The agreement enters into force with a single trigger that may be triggered by two different options: either when the required number of states express their consent to the agreement, or when a number of states that represent a required percent of global greenhouse gas emissions express their consent. The agreement enters into force when either of those conditions are met.
- Ensures respect for state sovereignty by conditioning entry into force on the expression of consent of an adequate number of parties, and/or the consent of those parties that face the highest burden under the agreement;
- Gives the greatest opportunity for the agreement to enter into force by providing two different options to be satisfied.
- If the required number of parties or percentage of greenhouse gases is too high, it could result in delay and the same disadvantages for the conditions as listed above.
Option 5: This agreement shall enter into force on the ninetieth day after the date on which not less than [55 Parties to the Convention, incorporating Parties included in Annex I to the Convention that cumulatively accounted for at least 55 per cent of the total carbon dioxide emissions for 1990 of Parties included in Annex I] [half of the Parties to the Convention, incorporating all Parties included in Annex I], have deposited their instruments of ratification, acceptance, approval or accession;
Implications: The agreement enters into force 90 days after 55 parties, including Annex I parties that account for at least 55 per cent of total emissions for 1990 or including half of the parties where that half includes all Annex I states, have expressed consent.
- Gives Annex I parties, those states who face the highest burden under the agreement, the greatest legal weight in its entry into force.
- Gives Annex I parties disproportionate control over the entry into force of the agreement.
- Does not grant adequate legal weight to the expression of consent of non-Annex I parties, who arguably face the practical consequences of unmitigated climate change forces that follow the non-implementation of the Agreement.