Points to understand the entry into force of the Paris Agreement
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Taken from ConexiónCOP.
More than a month has passed since the historic December 12, 2015, when representatives of the 195 countries of the United Nations Framework Convention on Climate Change (UNFCCC) decided to change the history of the world, and join efforts to protect life on the planet, through the adoption of the Paris Agreement on Climate Change. In order to have more details about the steps to follow to make this universal agreement legally binding for the countries that ratify it, ConexiónCOP talked to Jimena Nieto Carrasco, who was Colombia's legal advisor in the negotiations that led to the agreement and legal affairs coordinator for the Independent Association of Latin America and the Caribbean (AILAC); Pía Zevallos, Creation and Development Manager for the Peruvian consulting firm Libélula; and Andrea Rodríguez, Climate Change Program attorney for the Interamerican Association for Environmental Defense (AIDA).
1. The signing of the Paris Agreement - Jimena Nieto Carrasco explains that it is very important to understand the steps to follow to give legal life to the recently adopted Paris Agreement. The next step, according to Article 20, paragraph 1, is the signing of the treaty. The book containing the Paris Agreement in the six official languages of the United Nations will be opened for signature on April 21, 2016 at the UN headquarters in New York, where a ceremony is planned in which the representatives of the countries of the Convention will be able to sign it, thus sending a signal of interest and support for the treaty to the world.
"Article 18 of the Vienna Convention on the Law of Treaties establishes as the only obligation of a country signing an international treaty not to go against the ultimate objective of the instrument, i.e. a country that signs the Paris Agreement cannot go out the next day and increase its greenhouse gas (GHG) emissions by 100%.”, he explains.
Pia Zevallos adds that it is important to understand that the signature has no legal consequences. “The signature can take place during one year (from April 21, 2016 to April 22, 2017), after that date countries will no longer be able to sign, however this does not mean that they cannot ratify the agreement at a later date, in which case the legal term is ‘accession’.’ ”, he says.
2. Who signs the Agreement? - If the person attending the signing ceremony in New York is not the Head of State or Government, the country's representative must then have Full Powers - a document drawn up by the foreign ministries of each country - by which a minister or ambassador is empowered to sign a treaty.
What happens to countries that do not sign the Paris Agreement? - Nicaragua was a country that generated controversy during COP21, when it expressed its disagreement with some aspects of the Agreement in the adoption plenary. What would happen if Nicaragua does not sign the agreement? Jimena Nieto Carrasco explains that those who do not sign during the deadline would be sending a negative message to the world.
"In the case of Nicaragua, which contributes very little in terms of GHG emissions, the impact would be mainly political. In any case, it should be borne in mind that the Agreement is binding on those countries that ratify it, i.e. what should be monitored is the number of ratifications achieved in the future. A country that does not ratify, although it may be present at the meetings held within the framework of the Agreement, will have a limited capacity to participate in decision-making, in accordance with Article 16, paragraphs 2 and 3.", he explains.
4. Ratification of the Paris Agreement - Unlike signature, there is no peremptory deadline for ratification, accession, acceptance or approval, which are the acts that legally bind a State to comply with the obligations contained in the Paris Agreement.
Jimena Nieto Carrasco explains that the internal process for the ratification of a treaty may vary according to the legal system of each country. For example, in civil law countries, such as the member countries of AILAC, there is usually an internal consultation with the different relevant governmental and non-governmental actors on the convenience for the country to ratify the treaty.
“In Colombia, for example, we first ask the entities and ministries that have to do with the issue of climate change, and if so, the Foreign Ministry drafts a bill - which literally transcribes the Paris Agreement - which is submitted to Congress for approval. Once approved by the Head of State, the next step is the elaboration by the Foreign Ministry of the instrument of ratification, which must be formally delivered by a plenipotentiary to the Depositary; which in this case, according to Article 26, is the Secretary General of the United Nations in New York. Article 21, paragraph 3, then establishes that 30 days after the deposit, the Agreement enters into force for the respective party, i.e. the deposit of said instrument is the moment from which the country becomes legally bound by the Agreement, provided that the requirements for its entry into force in accordance with Article 21.1 have already been fulfilled”, sustains.
Andrea Rodriguez maintains that it will be very necessary for the congresses to give their support and ratify the agreement.
“There will need to be a high level of consensus at the internal level that shows the commitment of the respective countries to achieve the global goals established. To facilitate this process, a strong socialization of the content of the agreement will be necessary to understand in detail the implications and achieve the necessary support among decision makers.”he says.
Pía Zevallos explains that there are countries such as the United States, whose legal system allows that, in certain cases, congressional approval is not required to enter into certain types of treaties. Therefore, it is expected that the United States will be able to ratify the agreement very soon by executive means, before President Barack Obama finishes his presidency.
5. The entry into force of the Agreement - For the Paris Agreement to enter into force, i.e. to come into international legal existence, it needs to be ratified by 55 countries or organizations of countries that are Parties to the UNFCCC, and at the same time these countries must be responsible for at least 55% of global GHG emissions. Once these two conditions are met, the Agreement enters into force after 30 days and becomes binding on those who have ratified it.
This document shows the GHG percentage of each country at the global level. It is important to note that this list is only for the purposes of the Depositary to be able to count and report when the 55% emissions threshold is reached.
6. The Paris Agreement and the Kyoto Protocol - The Kyoto Protocol is a treaty adopted in 1997 under the UNFCCC that only entered into force in 2005. The Protocol sets specific targets and timetables for emission reductions, but these obligations are limited only to Annex I countries, i.e. developed countries and economies in transition. The United States did sign it but never ratified it.
“In the case of the Kyoto Protocol, the great frustration was that the United States did not ratify, but that did not prevent the Protocol from entering into force. The formula that was used was that in order for the treaty to enter into force, one of the two major emitters at the time, the United States or Russia, was required to ratify, that is, if both abstained, the treaty could not be born into legal life”, explains Nieto Carrasco.
Andrea Rodríguez argues that the Kyoto Protocol was primarily focused on a commitment by countries to stabilize greenhouse gas emissions. “The Paris Agreement is more ambitious as it not only contains commitments to reduce emissions but also commitments such as in the case of financing, adaptation, among others. Moreover, this is a long-term agreement that governs global action from 2020 onwards.”, concludes Rodriguez.
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