The Paris Agreement to enter into force in 2016?

On 12 December 2015, the Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC), at its 21st session (COP 21), adopted the Paris Agreement, which establishes the new long-term international legal regime for global climate action under the Convention. The agreement to be reached out in Paris was originally intended to enter into force from 2020, i.e. the last year of the second commitment period under the Kyoto Protocol (2013-2020). It was at COP 17 (Durban, 2011, decision 1/ CP.17), that Parties decided “to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action”.

At the same time, it was decided that the Group “shall complete its work as early as possible but no later than 2015 in order to adopt this protocol, another legal instrument or an agreed outcome with legal force at the twenty-first session of the Conference of the Parties and for it to come into effect and be implemented from 2020”. Until the final draft of the Paris Agreement (Version 2 of 10 December 2015 at 21:00), the option that the Agreement could not enter into force earlier than 1 January 2020 still appeared under brackets, which means that Parties to the Convention hadn’t still reached an agreement on whether to leave it or not in the final text. Notwithstanding the foregoing, the final outcome adopted in Paris did not establish any obstacle for the Agreement to enter into force before 2020.

Article 21, paragraph 1, of the Paris Agreement provides solely that “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 % of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession”. This provision was completed by Article 21, paragraph 2, which states that “solely for the limited purpose of paragraph 1 of this Article, “total global greenhouse gas emissions” means the most up-to-date amount communicated on or before the date of adoption of this Agreement by the Parties to the Convention”.

Paragraphs 1 and 2 of Article 21 have an interesting story. The entry into force of the Paris Agreement did not figure within any of the key issues for whom the French Presidency of COP 21 organized informal consultations led by Heads of Delegation during the high-level segment of the COP. Instead, this issue was negotiated in informal, party-led negotiations. A group of negotiators, with the support of the UNFCCC Secretariat, and of the Chief of the Treaty Section of the Office of Legal Affairs of the United Nations, agreed and submitted to the COP Presidency the text that figured in the final draft of the Paris Agreement (with “but not earlier than 1 January 2020” under brackets), as well as the text of the paragraph of the COP decision related to this article (Paragraph 104 of decision 1/CP.21). During negotiations, once they had agreed on the double threshold (at least a number of Parties representing at least a percentage of the total greenhouse gas (GHG) emissions), the main difficulty that negotiators faced was finding a common denominator for calculating the total GHG emissions and each Party’s percentage. Discussions lead to the idea of working with estimates, solely for the purpose of this article, by using the most up-to-date information on amounts of GHG emissions communicated by Parties.

For this purpose, the UNFCCC Secretariat identified the documents in which Parties had communicated this information and elaborated a table reflecting these amounts. The COP decision would then request the Secretariat to make available this information on its website on the date of adoption of the Agreement, as well as in the COP report. Finally, in the proposal by the COP President of 12 December 2015 (FCCC/ CP/2015/L.9/Rev.1), adopted by the COP, the reference to the impossibility of the Agreement entering into force before 1 January 2020 did no longer appear in the text.

It is up to Parties that the Agreement enters into force before 2020. It could even enter into force in 2016 if the conditions provided in Article 21, paragraph 1, are met. The adoption of the Agreement created political momentum. As by 7 April 2016, more than 130 countries had confirmed attendance to the high-level ceremony for the opening for signature of the Agreement, convened by the UN Secretary-General at the UN headquarters in New York on 22 April 2016. From that day on, Parties to the Convention that have signed the Agreement will be able to deposit their instruments of ratification, acceptance, approval or accession at any time, even on that same date.

On a Joint Presidential Statement on Climate Change of 31 March 2016, the two Parties with the greatest percentages of estimated GHG emissions according to the information made available by the Secretariat solely for the purposes of Article 21 of the Agreement, the United States of America (17.89%) and China (20.09%), announced not only that they will be signing the Paris Agreement on 22 April 2016, but also that they will afterwards take all the necessary domestic steps in order to join the Agreement as early as possible in the same year. In addition, they invited all other Parties to the UNFCCC to do the same in order for the Agreement to enter into force as soon as possible. As a consequence of this momentum, the UNFCCC Secretariat is preparing for an entry into force before 2020. In an information note of 7 April 2016, the UNFCCC Legal Affairs Programme makes a detailed analysis of the legal and procedural consequences of what it calls an “early entry into force of the Paris Agreement”. Even though in Paragraph 4 of decision 1/CP.21 the COP invited all Parties to sign the Agreement at the ceremony to be convened by the UN Secretary-General, or at their earliest opportunity, and to deposit their respective instruments of ratification, acceptance, approval or accession, where appropriate, as soon as possible, it seems that nobody was taking very seriously the possibility of an early, and even less of a very early, entry into force of the Paris Agreement.

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