Transcript Achala-Abeysinghe-Legal-issues-Paris-Agreement

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european capacity building initiative
initiative européenne de renforcement des capacités
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Legal issues in the Paris Agreement
Ecbi workshop- Dakar, Senegal
Dr. Achala Abeysinghe
Principal Researcher/ Team Leader
Global Climate Law, Policy and Governance
[email protected]
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
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Why international legally binding agreements are important to
address global climate change problem?
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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).
• Treaty, convention, protocol, agreement –with
entry into force provisions
• COP decisions
• Political declarations such as the Rio
Declaration on Sustainable Development,
Copenhagen accord
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Various forms or types instruments
• “Shall”: legally binding requirement or obligation
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Legally binding and non-binding
language
– 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
• 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)
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Examples of obligatory and non-obligatory
language in the Paris Agreement
• Each Party should, as appropriate, submit and update periodically an adaptation
communication, which may include its priorities, implementation and support
needs…
• Art. 15: Paris Agreement establishes a
compliance mechanism to facilitate
implementation of and promote compliance
with the provisions of the Paris Agreement
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Promoting compliance with the
provisions of the Paris Agreement
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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.
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.
The act whereby a state indicates
its consent to be bound by a
multilateral treaty
Ratification
Signature
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
Implies that State have taken all
required measures for
transferring the treaty to its
domestic jurisdictional system
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Legal terminology
The process of ratification varies
from state to state, according to the
demands of their respective
Constitutions.
At least
Accounting for
At least
55 Parties
55% of total
Global
GHGs
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Meeting the two triggers according to the Article 21 of
the Paris Agreement
EU
USA
EU
Russia
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Chin
a
Chin
a
USA
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UNFCCC Inventory
• http://unfccc.int/files/ghg_data/application/pdf/t
able.pdf
• Parties can also mention whether they plan to apply the
Agreement provisionally
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With the instrument of ratification…
• 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
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)
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Whereas the (title of the Convention) is open to ratification by (name of country)..
under the terms of its Article ..(number of applicable Article)
Paris Agreement status of ratification
http://unfccc.int/paris_agreement/items/9444.php
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17 countries accounting in total for 0.04 % of
total global GHG emissions have ratified the
Paris Agreement so far.
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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.
• No timeline in the Article 21 (will enter into force when the two
triggers meet).
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Implications of possible early entry
into force
• 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
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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
[email protected]
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Thank you!