ecbi european capacity building initiative Legal issues in the Paris Agreement Ecbi workshop- Dakar, Senegal Dr. Achala Abeysinghe Principal Researcher/ Team Leader Global Climate Law, Policy and Governance Achala.abeysinghe@iied.org european capacity building initiative initiative européenne de renforcement des capacités for sustained capacity building in support of international climate change negotiations pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

Presentation outline Introduction Obligatory language in the Paris Agreement Promoting compliance Ratification and entry into force provisions

Why international legally binding agreements are important to address global climate change problem?

Legally bindingness depends on combination of factors The form or type of the relevant legal instrument The language of the provisions (mandatory language or aspirational language) and the specificity of the language. Provisions for enforcement (compliance, monitoring, rights of action, dispute settlement). (e.g. a treaty as opposed to a COP decision or a policy document like the Rio Declaration on Sustainable Development),

Various forms or types instruments Treaty, convention, protocol, agreement –with entry into force provisions COP decisions Political declarations such as the Rio Declaration on Sustainable Development, Copenhagen accord

Legally binding and non-binding language “Shall”: legally binding requirement or obligation Note surrounding language (“as appropriate” “shall aim”) which weakens requirement Note location of “shall” – treaty (Paris Agreement ‐ binding) or decision (not considered to be legally--‐binding) Note who is to take the action – All Parties, Each Party, CMA, a particular institution etc; Consider whether an individual or collective goal “Should”: advice, recommendation, expectation

Examples of obligatory and non-obligatory language in the Paris Agreement Each Party shall prepare, communicate and maintain successive Nationally Determined Contributions (NDCs) that it intends to achieve (4.2)- All Parties should strive to formulate and communicate long term low GHG development strategies (4.19). LDCs and SIDS may prepare and communicate strategies, plans and actions for low GHG development reflecting their special circumstances (Art 4.6) Invites Parties to communicate their first NDC no later than when the Party submits its respective instrument of ratification…INDC will satisfy this requirement unless Party decides otherwise (1/CP.21, para 22) Each Party should, as appropriate, submit and update periodically an adaptation communication, which may include its priorities, implementation and support needs…

Promoting compliance with the provisions of the Paris Agreement Art. 15: Paris Agreement establishes a compliance mechanism to facilitate implementation of and promote compliance with the provisions of the Paris Agreement

Entry into Force Art 21: This Agreement shall enter into force 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 percent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession.

Legal terminology Signature Ratification Does not establish the state’s consent to be bound, but creates an obligation to refrain, in good faith, from acts that would defeat the general objectives Not enough to enable a country to become a Party to the Paris Agreement. By signing, parties expresses the willingness to continue in the process of ratification, acceptance or approval. Ratification The act whereby a state indicates its consent to be bound by a multilateral treaty Implies that State have taken all required measures for transferring the treaty to its domestic jurisdictional system The process of ratification varies from state to state, according to the demands of their respective Constitutions.

55% of total Global GHGs At least 55 Parties Meeting the two triggers according to the Article 21 of the Paris Agreement At least Accounting for At least 55 Parties 55% of total Global GHGs

China China EU USA USA EU Russia

UNFCCC Inventory http://unfccc.int/files/ghg_data/application/pdf/table.pdf

With the instrument of ratification… Parties can also mention whether they plan to apply the Agreement provisionally Communicate updated INDC which will become the NDC for the Paris Agreement implementation Communicated NDCs will be displayed in the public registry created by the UNFCCC Secretariat until the permanent registry is established. http://unfccc.int/focus/ndc_registry/items/9433.php

  INSTRUMENT OF RATIFICATION   Whereas the (title of the Convention) is open to ratification by (name of country).. under the terms of its Article ..(number of applicable Article)   Now therefore the Government of (name of country) having considered the aforesaid Convention hereby ratify the said Convention and undertake faithfully to carry out the stipulations therein contained   IN WITNESS THEREOF, I have signed and sealed this instrument.   Done at (place) the day of (date)   (Signature)   Head of State or Prime Minister or Minister of Foreign Affairs   (seal)  

17 countries accounting in total for 0 17 countries accounting in total for 0.04 % of total global GHG emissions have ratified the Paris Agreement so far. Paris Agreement status of ratification http://unfccc.int/paris_agreement/items/9444.php

Withdrawal At any time after three years from the entry into force for a Party, that Party may withdraw from this Agreement by giving written notification to the Depositary. Such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or any date notified. If a party withdrew from the Convention, they will be considered withdrawn from the Paris Agreement.

Implications of possible early entry into force No timeline in the Article 21 (will enter into force when the two triggers meet). Triggers of the entry into force can be met before 2020 and the Paris Agreement can be implemented from the day it enters into force. First CMA will be held after the Agreement’s entry into force APA will complete its work by the first CMA CMA will adopt the work forwarded to it by the APA. NDCs will be implemented from 2020. Countries that are not parties to the Paris Agreement will be left out from the CMA process

Immediate next steps Start the ratification process of the Paris Agreement Engage in the rule making process of the APA and other subsidiary bodies starting from May 2016 Ratify the Kyoto Protocol second commitment period

Thank you! Achala.abeysinghe@iied.org