Derecho Ambiental / Environmental Law

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On the Paris Agreement’s Imminent Entry Into Force

Source: EjilTalk

October 11, 2016

Rapid Entry Into Force or the “Rush to Ratify”

The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU, Canada and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!
Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.

The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.
It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.
How was it possible?
Part of the answer lies in the very architecture and content of the agreement. It basically has been purpose-built to make it easy for states to come on board. By letting Parties come forward with their nationally determined contributions, the agreement managed to “pick up” every state where it is at this point of time, preserving the sovereign space. Without being overly prescriptive or intrusive, it brings states together under the same goals and principles, such as progression and highest possible ambition. Importantly, it aims at increasing collective ambition over time and through iterative, quinquennial processes to where ambition needs to be in order to achieve those goals – thereby creating a place for learning, experience, reflection and permanent political attention to climate change. Unsurprisingly, the legally binding obligations in the agreement are few and of purely procedural character. The effect of this is that most Parties – if not all – do not need to change their national laws in order to implement the agreement. Such “weightless burden” eases and accelerates domestic ratification procedures.
But the Agreement is no paper tiger. It is deferential to sovereign interests, yes. It had to. At the same time, it gives a sense of direction and of collective purpose. It combines international normative “pull” with meaningful international cooperation and coordination, with horizontal peer “pressure”, and with repetitive national processes which will demand the continuous work on effective and ambitious climate policies, despite changing governments or economic circumstances.
Another reason for this “rush to ratification”, is the unwavering support of the UN Secretary General, Ban Ki-moon. In what might become his administration’s greatest legacy, he brought significant climate momentum to the UN system in organising high level events on climate change; the latest being the “special ratification event” on 21 September 2016 at which 31 states alone deposited their instruments of ratification or acceptance, crossing the first threshold for entry into force and jumping close to the bar on the second.
And, of course, there is the unprecedented alignment of political will of the world’s super powers; the US and China. In terms of political leadership, the Paris Agreement is one of the legacy projects for US President Barack Obama. His administration—along with China—has worked hard in recent months to ensure that the agreement takes effect. No doubt, the fact the US and China moved together created momentum, hope, expectation on others and a powerful surge to do the same. Importantly, the joining by the US and China also gave the necessary comfort to smaller emitters that the “big ones” are on board.
Yet, it is no G2-deal. 195 Parties to the UNFCCC adopted the agreement in Paris, 191 have signed it since, 74 have ratified or accepted so far. This means that the consensual scope is much broader than only between major powers. It is a truly multilateral deal. The obligations and entitlements are allocated fairly, in accordance with responsibilities and capacities. The agreement left the bifurcated approach of the Convention behind, which divided the world in Annex and non-Annex countries. It appeals to the vulnerable as well as the powerful, the economically advanced as well as to those that are least developed. Yet, across the large spectre of countries, it spans the normative canvas on which each and every Party can find its place in the common quest of avoiding dangerous anthropogenic climate change.
Moreover, the agreement itself has created a center of gravity. It draws in its force field the scientific community, a large and diverse array of stakeholders, civil society, private actors, companies, banks, insurances, all economic sectors, education, constituencies, voters. Science has never been as conclusive as now. Technology has seen rapid advances. Climate change has started to move from a burden to an opportunity – putting more emphasis on “change” and transformation of societies along low-greenhouse gas emission pathways. This, also, creates pressure and expectations; expectations which seem to compel states to ratifying the agreement. Pressure axes run vertically as well as horizontally (i.e. among states).
Peer pressure might, indeed, be the strongest reason for states to join the agreement. It has become politically correct, even “cool”, almost a competition, to ratify (quickly). Once a critical mass of countries had come forward, there seemed to be a gravitational pull on others. Not to miss the train, both in national and in international politics, created important momentum. So did pride and the fear of reputational risk. Of course, there are also certain privileges to be had: Once the agreement enters into force, its decision-making body – the Conference of the Parties serving as the Meeting of the Parties (or short CMA) – will assume its competences. Only the Parties to the Paris Agreement would – and should – be eligible to participate in decision-making under this body. Now, while the “rule-book” of the Agreement remains largely to be written, a certain fear of missing out started to spread around the world. This in turn caused some side-eying on who else is joining the agreement – and a collective rush to parliamentary ratification procedures, or, for some, submitting an executive letter to the UN Secretary General.
A final, and perhaps not insignificant, reason lies in political “anti-leadership”. A country may only be as strong as its political leader. Because political leaders are a renewable resource, they come and go – with different takes on climate change. Some dedicated and constructive; others the complete opposite. Once the agreement enters into force, a Party can only get out by withdrawing from the Agreement. Withdrawal comes at a political cost – which may or may not prevent some Parties from taking this step – unless they have a leader who does not care or does not know or both. Now, withdrawal from the agreement is only possible after three years from entry into force – and even then will the withdrawal take effect only after one more year has passed. Which means that for four years after entry into force, no Party can leave the agreement. Four years is the duration of most elective periods for presidents and other heads of state. A Trump card, so to say, if it were needed.
With the imminent entry into force, the prophecy of the agreement – at least when it comes to taking effect – becomes self-fulfilling. The gravitational pull created the incentive necessary for others to join the agreement. It is evoking new behaviour, sufficiently influencing states so that their reactions (and actions) fulfil the conditions for entry into force, against all odds.
The hope is that this also extends to the effectiveness of the agreement itself, causing behavioural changes that matter. The first CMA in Marrakesh this November will show whether there is a positive feedback between belief and behaviour – or whether the agreement just enters into “farce”.

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