On the Paris Agreement’s Imminent Entry Into Force (Part II of II)

This is Part II of a two-part post.

What are the Consequences of the Paris Agreement’s Entering into Force?

The Paris Agreement is to enter into force on 4 November 2016, 30 days after the second of its two thresholds was passed on 5 October 2016. On that day, the emissions covered by those Parties to the Convention that ratified or accepted the Agreement amounted to 56.75% of global total emissions; crossing the 55% bar required by the agreement. (see Part I)

So, what does this mean? I would like to highlight 10 points.

First of all, the Agreement becomes international law. It is an international treaty, i.e. an international agreement concluded between states in written form and will be governed by international law (Art. 2.1 (a) Vienna Convention on the Law of Treaties – VCLT).

While 197 Parties to the UNFCCC adopted the Paris Agreement and 191 signed it so far, it is important to note that it will only bind those 74 states and the EU (as of 7 October 2016) which have expressed their consent to be bound by it through ratification, acceptance or approval. Each of these states for which the Agreement is in force will then become a “Party” to the Agreement. This means that despite the commonly used adage, it is not a universal agreement. Rather, at the time of entry into force, it captures only about 2/5 of the Parties to the Convention, with others hopefully joining over time.

According to the principle of “pacta sunt servanda”, Parties are obliged to keep the treaty and must perform it in good faith (VCLT, Article 26). Good faith suggests that Parties need to take the necessary steps to comply with the object and purpose of the treaty. Neither can Parties invoke restrictions imposed by domestic law as reason for not complying with their treaty obligations.

Second, the obligations that Parties have individually and collectively, the promises made to each other, will become binding. The Agreement establishes few legally binding obligations, yet those that are in the Agreement are crucial to its functioning and effectiveness.

Legal obligations, for example, that apply to all Parties include: (1) preparing, communicating and maintaining nationally determined contributions (NDCs) every five years, (2) pursuing domestic mitigation measures with the aim to achieve those NDCs, (3) providing clear, transparent and understandable information on the NDCs, (4) accounting for anthropogenic emissions and removals, and (5) providing information, no less frequently than biennially, on a national inventory as well as on progress in implementing and achieving the NDC. These obligations are continuous and iterative, i.e. creating repetitive processes, in order to enhance the level of ambition and to ensure the constant and progressive engagement of Parties with the task of addressing climate change.

In addition, developed countries are reminded of their pre-existing obligation under the UNFCCC to provide financial resources to assist developing countries.

Third, these obligations apply erga omnes partes and are the back-bone of the Agreement; the elements on which mutual trust is built. Not complying with them amounts to a breach of an international obligation which could, theoretically, be invoked by any other Party to the Agreement – with the respective legal consequences that follow from state responsibility.

Fourth, in becoming legally binding to Parties, the agreement also exerts legal force on national legal systems. Depending on the respective domestic system, the Agreement may become part of the domestic legal system directly or through implementation into national law, such as through incorporation or transformation.

Fifth, there are normative elements (or parameters) in the agreement which are of less legal stringency than obligations. While not being legally binding in the strict sense, they too will influence domestic politics and laws. They can and will be used by policy-makers, advocates and judges to influence decision making, as arguments in courts or as reasons for criticising inadequate climate action. As such, they can develop normative power, even if they may not be part of the legally binding spectre of the agreement.

There are several of such normative parameters in the Agreement which are not legally binding per se, but nevertheless exert normative force: One is the type of target that countries need to adopt. Developed countries should continue taking the lead by undertaking economy-wide absolute emission reduction targets, while developing countries should continue to enhance their efforts and are encouraged to move, over time, to economy-wide emission reduction or limitation targets. Least developed countries may prepare strategies, plans and actions for low GHGs development.

Another one is the duty of care – as a standard of conduct – that lies in the requirement that each Party’s NDC will reflect its highest possible ambition (PA, art. 4.3) in a manner that reflects its responsibilities and respective capabilities. This provision expresses the requirement that Parties will deploy their best efforts in setting their national mitigation targets and in pursuing domestic measures to achieve them. This sets for each Party the standard of conduct to do as well as it can.  With entry into force, this becomes a due diligence standard, well known in international law, which requires each government to taking all adequate and appropriate measures at its disposal. It means, at the minimum, that Parties need to set their highest possible mitigation target at a level that is not economically disproportionately burdensome or impossible to achieve. It also requires Parties to have domestic measures in place that are necessary, meaningful and, indeed, effective means to achieve that target.

A third normative parameter lies in the principle of progression contained in article 4.3. Parties have to communicate successive NDCs every 5th year. Each successive NDC has to progress beyond previous undertakings. A Party’s changing circumstances (e.g. a financial, political or economic crisis) cannot lead to a decrease in what can be considered its ‘highest possible ambition’ compared to the level contained in the previous NDC. It not only sets a “‘floor”’ for the next NDC, but requires each Party to go above and beyond each previous NDC.

These normative parameters in the Paris Agreement can and should be used by policy makers, legal scholars and lawyers and legal practitioners to shape and interpret domestic laws and policies. Moreover, national (and international) courts can and should play an important complementary role by using these parameters directly, as supporting legal arguments or as interpretative tools. As such they can and should be used as a standard of review; a legal standard for assessing the adequacy of national laws and policies by domestic actors, among them courts.

Sixth, with entry into force, the set of rules to interpret an international treaty becomes applicable.  A treaty is expected to be interpreted in good faith and in accordance with the ordinary meanings of its terms, together with the context, object and purpose of the treaty (VCLT, Article 31). Especially interpretation of the provisions in light of the purpose(s) of the Paris Agreement (Article 2 ), including amongst other things the global temperature goals, might be an important normative determinant in developing further guidance on various aspects of the Agreement, such as the enhanced transparency framework, the global stock-take or the sustainable development mechanism; the so-called “rule book”. Importantly, all obligations as well as those normative parameters of progression and highest possible ambition need to be seen in the light of the purpose of the agreement; something that can lead to an inherently dynamic interpretation as science develops further.

Seventh, when deposing their instruments of ratification, Parties were invited to communicate their first NDC. Most Parties, if not all, used their intended nationally determined contributions (INDC) – communicated some time in 2015 – which for the purpose of joining the agreement were considered their first NDC. The content of NDCs – the target(s) – is not part of the legally binding elements of the Paris Agreement. However, this does not mean that they are without legal importance. With entering into force of the Agreement, the NDCs become the benchmark against which information on progress of implementation and achievement shall be submitted, no less frequently than every two years. This information will feed into the transparency framework established under the Agreement, and will be publicly available. As the starting year for NDC implementation is 2020, the information obligation only starts to apply from then onwards.

Eighth, Parties also committed to pursuing domestic measures with the aim of achieving the objective of the NDCs (PA, art. 4.2). Such measures need to be put in place now. Although most INDCs were drafted in 2015 with the possible political space in mind, implementing and achieving them may nevertheless require actions and changes. Moreover, Parties are obliged to communicate their next NDCs, reflecting progression beyond the current ones, already in 2020 and then every 5 years. This means that climate policies will, from now on, have to remain on every Party’s political agenda – regardless of changes in government.

Ninth, with entering into force, withdrawal from the Paris Agreement becomes possible. For many Parties, this was a condition for agreeing to the legally-binding provisions of the Agreement. Yet, the possibility to withdraw first arises three years after entry into force. After that, any withdrawal by a Party, notified to the Depositary, takes effect at the earliest one year after the Depositary received such note. The “stability period” of three years after the PA enters into force, coupled with a “waiting period” of yet another year can be seen as legal safeguards to fend off climate-adverse political changes and their impacts on membership in the Paris Agreement. It means that the withdrawal from the Agreement would first come into effect four years after its entry into force, covering a full legislative period in many states.

Tenth, with entry into force, the governing body for the Paris Agreement, the Conference of the Parties serving as the Meeting of the Parties (CMA) will start convening its sessions – for the first time in conjunction with COP22 in November 2016. Apparently, there are challenges with having the first session following entry into force so rapidly. The mandate for the first meeting (i.e. to adopt guidance on several central aspects of the agreement; the “rule book”) is clear, but the work has not yet been done. An agenda is not in place. This fact alone might lead to lengthy negotiations. There are several states which are in the process of joining the agreement, but are not yet Parties. As such, they would not be eligible to participate in decision-making under the CMA; nevertheless they do not want to be excluded. While some of these concerns are more legitimate than others, the expectation is that the first CMA might be suspended and resumed in due course in order to give Parties more time to get their work done. Now, while this might be a logistical necessity – the political message, however, is less fortunate. It will be difficult to reconcile the urgency of addressing climate change (and the euphoria about entry into force of the agreement) with the sobering news of the CMAs suspension.

And one final comment:

The current global emissions percentage captured by the Parties to the Paris Agreement is, in fact, higher than the calculated percentage of 56.75%. The percentage against which the second threshold was calculated – solely for the limited purposes of Article 21 – is based on information on the most up-to-date total and per cent of GHG emissions communicated by Parties to the Convention in their latest national communications, GHG inventory reports, biennial reports or biennial update reports, as on or before 12 December 2015.The communicated amounts by Parties come from very different years, some as early as 1994, others, like China, from 2005 or later. Since then, most states – if not all – have increased their emissions.