Headline: Some Thoughts on Entry into Force of the Paris Agreement

One of the key questions I’m being asked a lot recently in relation to the Paris Agreement is “When will it come into force?” The answer to this question is somewhat more complex than it might at first seem. Through this short piece I hope to provide some insights into the steps and legal requirements for entry into force of the Paris treaty and to clarify the legal language used.

What is entry into force?

When an international treaty is negotiated there are usually four key steps needed to ensure that it has legal effect on the countries that negotiated it: adoption, signature, ratification, and entry into force. It is easier to understand when you think of it as a kind of mass marriage. When the parties adopt the Agreement, they enter into a relationship. Upon signing, they voluntarily get engaged and are obliged not to act in a way that jeopardizes the relationship. And through ratification, they formally enter into the marriage, which becomes legally binding on them once the Agreement enters into force.

Treaty marriage is polygamous. It even allows non-signatories to join the union after entry into force through accession. Also there is no “til death do us part”; parties can usually file for divorce through a withdrawal clause, which Canada famously made use of to withdraw from the Kyoto Protocol in December 2012.

How does it work for the Paris Agreement?

In Paris, last December, state parties to the UNFCCC Convention (meeting as ‘the Conference of the parties, COP’) successfully negotiated a 32-page document (‘the Paris Outcome’), consisting of a 20-page decision (‘the COP Decision’) and a 12-page treaty (‘the Paris Agreement’). The outcome was adopted by 195 countries by consensus (i.e. no one objected) on 12 December 2015. On 22 April 2016, it was opened for signature for a period of one year in a high-level ceremony at UN Headquarters in New York, where an unprecedented number of 174 countries and the EU signed the treaty on the very first day. The next important step is ratification, which is the act by which states make arrangements in their national legal systems to formally join the Paris Agreement. It is important to distinguish between domestic and international ratification. Domestic ratification commonly involves getting approval from the parliament, the Head of State, or a similar entity but can also require the passing of a federal law or an act of parliament depending on the jurisdiction. Once the domestic legal requirements are satisfied, the State, in order to undertake the international act of ratification, will deposit its so-called “instrument of ratification, acceptance or approval” with the UN Secretary-General (‘the Depositary’), who, in turn, will inform the other parties. A country that misses the one-year deadline to ratify the treaty can still deposit an instrument of accession to join the Paris Agreement after entry into force.

The Paris Agreement will enter into force (i.e. have legal effect on the states that signed and ratified it), thirty days after it has been ratified by at least 55 UNFCCC parties that account for at least 55% of global greenhouse gas emissions. At the time of writing, the Paris Agreement has been ratified by 23 parties (comprising mostly small island developing states and Norway) accounting for 1.10% of global greenhouse gas emissions (latest figures here). However, many countries have announced their intention to ratify the Agreement by the end of the year, including major emitters such as China (20.1%), the US (17.9%) and India (4.1%). That number is likely to go up as political momentum builds up ahead of the next COP22 in Marrakech in November 2016. Research by the Potsdam Institute for Climate Impact Research (PIK) shows that the treaty could reach the threshold required for entry into force by the end of the year.

What about the EU? And Brexit?

The European Union could provide a significant boost to the number of ratifications as it (currently) consists of 28 member states that make up around 12.1% of global greenhouse gas emissions. However, the EU’s ratification process tends to be a bit more complex. The EU Member states complete their domestic ratification procedures individually (presently, France and Hungary have already done so); the EU prepares its ratification of the Agreement in parallel. A proposal by the European Commission for a draft Council Decision was issued on 10 June 2016. It now needs to be adopted by the Council with consent from the European Parliament. The EU Parliament has called for an early ratification of the Paris Agreement and is expected to finalize its position in autumn 2016, when it will be put up for vote in the Council. Since the EU needs to coordinate its climate targets internally with all 28 Member states, the EU and its Member states usually deposit their instruments of ratification jointly. (In addition, the Paris Agreement requires the EU to notify the UNFCCC of the precise emission level allocated to each EU Member State).

The outcome of the British EU referendum on 24 June 2016 will likely delay the EU’s ratification. Currently, the UK is the second largest emitter in the EU (1.6% of global greenhouse gas emissions) after Germany (2.6%). The vote to leave the EU and the political repercussions for Great Britain as a whole may throw a spanner in the works of the UK’s domestic ratification of the Paris Agreement. Yet much of it will depend on the course taken by the Government under the lead of newly appointed Prime Minister Theresa May. Besides potential delays, it is still unclear how exactly Brexit will impact the EU’s ratification procedure and the EU’s newly proposed ‘Effort Sharing Regulation’ for 2021-2030. (The UK is presently included in both the previous Effort Sharing Decision for 2009-2020 and the proposed Regulation). Once the UK invokes Article 50 of the Lisbon Treaty to formally initiate the process of leaving the EU, this leaves the Union with two options in respect to its climate targets: either raise the individual targets for all remaining countries, or water down its overall climate target.

Regarding ratification, recent analysis by the think tank E3G suggests that while the EU may need to readjust its nationally determined contribution (NDC) under the Paris Agreement, it could ratify the treaty while the UK is still an EU-28 Member State. After the UK leaves, the EU may seek to keep the UK engaged through an arrangement to jointly fulfil its NDC. Setting aside the Brexit limbo, several other EU Members such as Poland have indicated that they will not ratify the treaty until questions relating to burden-sharing have been resolved. This should rule out an EU ratification of the Paris Agreement by the end of the year.

So when will the Paris Agreement come into force?

The political momentum behind COP-22 means the Paris Agreement will likely reach its double threshold (ratification by at least 55 UNFCCC parties that account for at least 55% of global greenhouse gas emissions ) and enter into force before the official signing period comes to an end on 21 April 2017. In principle, this could already happen by the end of 2016 if the countries – especially the heavy polluters – stand by their statements to ratify the treaty by the end of the year. Actually, it is not so important whether it happens in 2016 or April 2017. It is far more critical that there is now a high probability that the Paris Agreement will enter into force before 2020.

2020 is the magical year when the negotiating parties envisaged the treaty would come into effect. In fact, the official negotiating platform (‘the Ad Hoc Working Group on the Durban Platform for Enhanced Action, ADP’) was mandated to develop an international agreement – in various forms – for adoption in Paris that would “come into effect and be implemented from 2020”. Several provisions in the Paris COP Decision reflect this assumption. For example, the Decision requests that the parties update their intended NDCs by 2020 and invites them to communicate their long-term low greenhouse gas emission development strategies (LEDS) by 2020. It even includes a whole section on “enhanced action prior to 2020”, building on the work of the existing UNFCCC work stream on pre-2020 action. Further, the long list of tasks due by first meeting of the parties under the Paris Agreement (‘the Conference of the parties serving as the Meeting of the parties to the Paris Agreement, CMA‘) is consistent with an expected entry into force in 2020.

The drafters of the Paris Agreement certainly didn’t envisage an early entry into force of the treaty. They even included a safeguard in case of a delayed entry into force: The COP Decision features a provisional application clause which allows parties to the UNFCCC to apply all of the provisions of the Paris Agreement prior to its entry into force. This conservative approach makes sense looking back; the Kyoto Protocol took over 7 years from adoption in 1997 to entry into force in 2005. But the strong political momentum surrounding the successful negotiation of the Paris Agreement as the world’s first truly global climate deal since the UNFCCC Convention may tilt the scales in favor of a rapid entry into force.

Currently the presidencies of COP21 and COP22 are working jointly on an arrangement in case the Paris Agreement comes into force early (i.e. before the preparations for the work programme under the treaty are completed). Such an arrangement would aim to ensure that all UNFCCC countries can participate in the meetings of the CMA and no country is disadvantaged simply because it hasn’t yet completed its ratification process. Further, the UNFCCC legal team has prepared a helpful information note outlining the legal and procedural implications of an early entry into force.

Why entry into force still matters

The existence of a provisional application clause and the high amount of attention paid to “pre-2020 ambition” under the UNFCCC (both through ADP Work Stream 2 and under the Paris COP Decision) begs the question why entry into force is still so important for the treaty to work. In fact, the Paris Agreement is a special case in comparison to other binding international treaties like the Kyoto Protocol because it strongly builds on soft commitments. Many of the key substantive provisions are not legally binding; yet, the treaty contains strong procedural obligations, in particular with respect to the reporting of countries’ NDCs and the Transparency Framework. Through entry into force these obligations become binding on the states that have ratified the Agreement. This could open the door for legal action by concerned citizens and environmental interest groups challenging their country’s failure to comply with the binding obligations imposed by the treaty before national courts. An important precedent was set in the Netherlands in June 2015 when a District Court ruled in favor of the claimants – represented by the environmental NGO Urgenda Foundation – and ordered the Dutch Government to revise its climate targets. Ideally, judicial enforcement should come only as a last resort. While the modalities, procedures and guidance for compliance with the treaty and for the transparency mechanism are yet to be defined, the high political profile and near universal membership of the Agreement put significant political pressure on countries to comply.

Header image: UNclimatechange/CC BY 2.0 (cropped)