The legal roadmap of the Paris Agreement

Written by Sabrina Marquant & Miriam Carolina Somocurcio Holguín

On 22 April 2016, 175 countries gathered at the United Nations Headquarters in New York to officially sign the Paris Agreement. This is the second step of a legal process, which should conduct to the entry into force and the implementation of the Paris Agreement.

John Kerry at Paris Climate Change Agreement Signing Ceremony. Photo Credit: Leigh Vogel – http://connect4climate.org/article/historic-climate-signing-and-future-generations#sthash.UkbYGbcY.dpuf

At the 21st Conference of the Parties (COP21) to the United Nations Framework Convention on Climate Change (UNFCCC) in Paris in December 2012, 195 countries adopted the Paris Agreement. Highly symbolic, the adoption of this Agreement has been considered as a turning point in the history of climate change negotiations. It closed a negotiating phase that started at COP17 in Durban in 2011, with the mandate “to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, which is to be completed no later than 2015 in order for it to be adopted at the twenty-first session of the Conference of the Parties (COP)”. It also has paved way to a new negotiating phase, in which Parties to the Convention will have the task to prepare the implementation of the Paris Agreement and develop the pre 2020 climate actions framework, which will help countries to raise their ambition by 2020.

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In the process for coming into entry as a step, which is significant, the signature of the Paris Agreement is also a symbolic moment, which definitely closed the negotiating phase under the Durban Platform and seals the momentum getting in Paris. Furthermore, the signature is a solemn moment, in which Parties express their willingness to be bound by the text that they were signing. While Article 20 of the Paris Agreement scheduled a period of one year to sign it (22 April 2016 to 21 April 2017), the representatives of 175 countries have signed the Paris Agreement during the UN Paris Climate Agreement signing ceremony.

« Never before so many countries had signed an international agreement in one day. » – Ban Ki Moon opening statement at the UN Paris Climate Agreement signing ceremony, 22 avril 2016.

The Paris Agreement is not a simplified agreement. According to public international law, the signature is only a formality, but an essential formality. Indeed, even if the signature has no legal consequences, it engages the signatory Parties not to commit any action, which will be against the subject and the goal of the Agreement (Articles 10, 12, 18 of the 1969 Vienna Convention of the Law of Treaties).

Step 3 – The expression of willingness of Parties via ratification, acceptance, approval or accession and its legal consequences.

The next step in the legal roadmap is the expression of the consent of signing Parties to be bound by the obligations of the Paris Agreement.

The Paris Agreement provides Parties with different options, which will give the opportunity for their national Parliament according to their domestic requirements to express their consents. Those options are the ratification, the acceptance, the approval or the accession processes.

The ratification, according to international public law is a process in which Parties confirm the signature of the agreement and thus to highlight the final consent of a country to be bound by this agreement.

If their constitutional law envisages it, the consent of a Party to be bound by the Paris Agreement can also be expressed by the acceptance or the approval processes. Those two processes have a similar consequence than the ratification process and the same legal conditions.

Finally, the last option for a Party to be bound by the Paris Agreement is called the accession. According to the articles 2(1)(b) and 15 of the 1969 Vienna Convention of the Law of Treaties, the accession is an act in which one country, which hasn’t signed a treaty, can express its consent to be bound by it through the deposition of an instrument of accession. It has the same legal consequences than the ratification, the acceptance or the approval.

The period for submitting the Paris Agreement to acceptance or ratification should be open on “the day following the date on which it is closed for signature ”. Thus, from April 22nd 2017, countries will be invited to convey their instruments to M. Ban Ki Moon at the United Nations Headquarters(b).

The goal of these processes is to verify the compatibility of the Paris Agreement with the national constitution of each country and make sure it conforms with the Constitution to be able to produce effects at the national levels.

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In theory, this exam should happen after the signature, but in practice some national constitutions give the possibility to proceed to this process before the signature. This is the reason why on April 22, 2016 around 15 countries seized the opportunity at the signing ceremony to deposit their instruments. It was the case of Barbados, Belize, Fiji, Grenada, Maldives, Marshall Islands, Mauritius, Nauru, Palau, Samoa, Somalia, St. Kitts and Nevis, St. Lucia, State of Palestine and Tuvalu. Since the Signing Ceremony, Seychelles and Guyana have deposited their ratification instruments and France just got the consent of the first chamber of the Parliament, which is the French National Assembly. On June 8th, France should finalize the process of ratification by getting the consent of the second chamber of the Parliament, which is the French Senate.

Anticipating this diversity of national constitutions, the Paris Agreement doesn’t mention any time period, but condition the entry into force via a minimum of countries, which have to represent a minimum of gas emissions.

Step 4 & 5 – The entry into force versus the implementation of the Paris Agreement.

The last two steps of the Paris Agreement legal roadmap are the entry into force and the implementation of the Paris Agreement.

According to Article 21 of the Paris Agreement, the entry into force of this Agreement shall be “on the thirtieth day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession”.

Nevertheless, the obligations of the Paris Agreement will be applicable only after 2020. Indeed, at the COP18 in Doha, in order to avoid a legal gap between the end of the initial period of the Kyoto Protocol and the entry into a force of the new Agreement, Parties have decided to endow the Kyoto Protocol with an Amendment. With this Amendment, the application of the Kyoto Protocol obligations will run until 2020.

By this time, the next UNFCCC meetings, in particular the ongoing SB44 negotiations in Bonn, and the incoming COP22 which, will be held in November in Marrakech will be an opportunity for Parties to fix the schedules and roadmaps, define modalities and processes, and specify certain key concepts, which will facilitate the implementation of the Paris Agreement and its applicability.

About the authors:

photo_sabrina2Since 2012, Sabrina Marquant is a member of the CliMates research project on tracking the international climate negotiations. In December 2013, at the COP19, she had the opportunity to integrate the Official French Delegation as a Youth Delegate. In 2014, she was one of the two UNFCCC focal points for YOUNGO. Those two opportunities give to her a new vision and understandings of the negotiation process and youth participation at the international level. In 2015, more determined than ever to work on these issues she decided to focus her time on tracking the climate negotiations towards the COP21, analyzing potential bridges between this negotiation and other international processes (especially SDGs and Sendai Framework). After attending COP21 in Paris in December 2015, she has decided to focus her expertise on the Post-Paris climate talks and especially on the legal aspects of the Paris Agreement, the pre 2020 ambition, capacity building, and non-state actors participation issues.

Miriam Somocurcio is a peruvian and french lawyer, she holds a Master degree in Environmental Law from Pantheon Sorbonne and Pantheon Assas Universities. Miriam is member of CliMates since 2013 and she has been engaged with YOUNGO, since COP20. Nowdays, she works as legal advisor at Intercultural Justice Office of Peruvian Supreme Court focused on environmental justice.

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