Ratification Math of the Paris Agreement

Everyone needs to calm down, but just a little. Announcements that China and the US will ratify the Paris Agreement on Climate Change this year sparked speculation that the Agreement could enter into force by the end of 2016. The math shows that this is unlikely.

It is true that the Paris Agreement does not stipulate that the agreement will enter into force in 2020. The mandate was to “to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, which is to be completed no later than 2015…and for it to come into effect and be implemented from 2020.” While 2020 was in the back of everyone’s minds, it was never put on paper, leaving the door open to early entry into force.

The math proceeds on two fronts. First, is a simple tally – 55 countries have to ratify the Kyoto Protocol. Signing it on April 22 is not enough. Signing the Agreement is a promise that a country will ratify it. A country then has to take domestic action – such as passing legislation, or executive action – to formally agree to be bound by the treaty. Only ratification makes a country a party to the agreement. And we need 55 parties for the Agreement to take effect (i.e., enter into force).

So far, three countries took the domestic steps to ratify: Fiji, Palau, and the Marshall Islands. Ratification can take time, depending on a country’s domestic legal and political structure. Getting 52 more countries on board within a year is a tall task.

Others have announced their intent. Tuvalu announced it would ratify very soon. India announced its intent to ratify the Agreement on April 22 – the day of a big signing ceremony in New York. This would make India the first major emitter to ratify. With the US and China, another 48 countries need to be on board. This is a daunting number of countries to pass domestic legislation quickly – we’re talking most of the African Continent, or the EU and 20 other countries – but the second front is where the math gets more tricky.

Second, the Agreement needs 55% of global emissions represented by those who ratify. This is a safeguard, to ensure that the major emitters of the world participate before implementation of the Agreement can get underway. The Kyoto Protocol’s experience underlines how important the participation of major emitters is to the success of the agreement, and how difficult it is to bring them on board.

The UNFCCC gleaned the information on emissions for calculating the emissions math. The three Pacific states that already ratified do little to help the cause on the second front. They contribute essentially nothing to global emissions, but are uniquely vulnerable. The heavy hitters will decide their fate, and the fate of the Paris Agreement.

The US and China represent 17.98% and 20.09% of global emissions, respectively. It’s a big dent – 38.07% of global emissions. China could pass domestic legislation to ratify relatively quickly.

The US may be able to ratify – or, more accurately acede to the Agreement – this year, and probably must do so this year. The US became the first party to the Minamata Convention on Mercury through unusual means. The Obama Administration acceded without the Senate, arguing that the Convention required nothing new of the US, and therefore executive action was sufficient. With the bottom-up approach of the Paris Agreement, the same case is possible. President Obama could accede to the treaty (internationally, similar to ratifying, it has the same effect in terms of the math) without the Senate.

With the US and China adding their emissions shares to the ratification bank this year, just 11.93% of global emissions remain. So close, but so far.

One state cannot put us over that threshold alone. There are two scenarios, both seemingly unlikely to fully play out in time for entry into force this year:

  1. A coalition of the ‘lesser’ major emitters: India does ratify the Agreement this year, adding its 4.10% to the tally. This leaves 7.83% – so, so close! Russia (7.53%) could not repeat history and deposit the linchpin ratification – as it did for the Kyoto Protocol. A coalition is necessary, including some grouping of Japan (3.79%), Brazil (2.48%), Canada (1.95%), Mexico (1.70%), Indonesia (1.49%), or Iran (1.30%).

 

Under this scenario, there are four combinations: India, Russia and one other major emitter; India and at least three of the other major emitters; Russia and at least two of the other major emitters, excluding India; or at least three major emitters, excluding Russia and India.

 

  1. The EU ratifies: When the US and China deposit their instruments of ratification, the EU becomes the linchpin, representing 12.08% of global emissions. In March, the European Commission started the many steps necessary to get the 28 member states to ratify the agreement. The EU will need time, more time than the average (future) party to the Agreement.

The last wrinkle that the Paris Agreement will not enter into force this year is the 90-day rule. The Agreement enters into force 90 days after the last country informs the Secretariat that they ratified the agreement. By September, both frontlines – 55 countries and 55% of global emissions – would need breakthroughs. That’s 6 months. International relations, and the domestic politics of 55 countries does not move that quickly.

Yet politics is often more about the message than the math. The Paris Agreement is premised more than many other treaties on the messages it sends to the markets – that change is inevitable and investments will flow toward greener technologies. Rapid entry into force will make countries’ actions transparent, and write the message to the markets in permanent ink.

Why Paris is the beginning, not the end of climate negotiations

The meeting in Paris, in 2015 is the deadline for states to agree to a new climate change agreement. Even if states make that deadline, 2015 will likely mark the beginning of a lengthy, and technical, negotiation process.

Just 18 months before the 2015 deadline, countries did make some progress. They started to discuss what the new agreement would look like in concrete terms, rather than the vague conversations dragging on the last two years. In particular, how and what countries would put forward in their “intended nationally-determined contributions” became more clear, and many expect an outcome on this in Lima at the end of 2014.

The contributions are a pledge, or a statement, of what every country will do to combat climate change. If they will be legally-binding is unclear. As the conversation is shaping up, it looks like they will state, in terms common to all countries, the mitigation policies that countries will take. They will also include an estimate of the amount of greenhouse gases these policies will reduce.

It is also possible that these contributions will go beyond mitigation, to include adaptation, finance, technology transfer and capacity building measures. Each country would state what they are willing to do on these issues as well. This a new idea and much needs to be worked out, but such concrete thinking it is a far cry from the long-winded, abstract statements of years past.

Yet, with just 18 months to go, it is not concrete enough to lead to a complete, comprehensive climate agreement in Paris.

At best, countries will be able to agree to a relatively short, quite political agreement that builds on existing institutions, while creating new, nationally-determined contributions and contain agreement on other aspects not included in those contributions. Unlike the Kyoto Protocol, that set legally-binding targets for each country, countries will set their own targets. (more later on the insufficiency of this approach)

Like Kyoto, the agreement will probably set the political goals and leave the questions of how to achieve those goals to future rounds of negotiations. There simply isn’t time, in the slow machinery of international negotiations, to come up with much more than political goal setting that everyone can agree to.

This may not be a bad thing. It is difficult to get 195 countries pulling in the same direction. The technical details, or the rulebook, of the Kyoto Protocol was the Marrakesh Accords. These were difficult negotiations. The text grew to several hundred pages before countries narrowed the agreement, which spanned a wide range of issues, to under 200 pages. These negotiations effectively operationalized the Protocol.

Similarly, the rules of how to (possibly) review contributions, (hopefully) ratchet up their ambition, and (likely) have future commitment periods will need to be worked out with a degree of technical detail. Issues of monitoring, reporting and verifying countries’ efforts are always thorny and best left to technically-minded delegates (i.e. not ministers or heads of state).

The priority now is getting everyone on the same board, and resolving looming political issues, especially the legal form the new agreement will take and “differentiation” (how to determine who does what based on their capacities, and perhaps not based on older, developed/developing country divisions).

So settle in. There will be years of negotiations following the 2015 climate instrument. Let’s just hope they are completed by 2020 when the agreement enters into force. It’s governing for the long term, and taking a long time.

Should the 2015 Climate Instrument have an Opt-Out Clause?

As delegates debate the key elements of a new, post-Kyoto agreement, they look to other international environmental agreements for ideas. It is clear to most that the Kyoto Protocol failed to bring key actors on board (the US), and create flexibility for other actors to assume commitments (or contributions) as their economies grew (notably, China and India). Other failings of the top-down Protocol are evident: poor implementation of commitments, and little support for developing countries to pursue low-emissions growth strategies. The list goes on.

A new model is necessary, prompting the search for new ideas. At COP-19 in Warsaw, parties held a workshop to consider the Convention of International Trade of Endangered Species (CITES), the Montreal Protocol on CFCs, and the Stockholm Convention on Persistent Organic Pollutants (POPs). For each, the presentations hit the high notes, considering each convention in general terms.

Some ideas are worth considering in detail. An opt-out clause is one such possibility, allowing parties to formally withdraw from some aspects of the agreement. This would occur as a written statement from the government, deposited with the Secretariat and made public.

An opt out clause would free the leaders, identify the laggards, and protect sectors vulnerable to the negative effects of market mechanisms.

The Stockholm Convention on Persistent Organic Pollutants (POPs) has an opt out clause. Parties regularly add new POPs to the Convention after a scientific review by the POPs Review Committee determines that a chemical is likely, as a result of long-range environmental transport, to lead to significant human and/or environmental effects. The opt out clause allows countries to withdraw from the elimination or management of a new chemical.

Allowing countries to opt out creates a “are you with us or not?” dynamic. Leaders are free to move ahead of the pack, creating competitive advantages for new, cleaner industries. They are identified as leaders to industry, civil society and other states. These leaders are not confined to the lowest-common denominator tendency of modern environmental agreement reached by consensus.

Those who opt out are subject to soft tools of persuasion and moral suasion. These tools may be called soft, but are likely effective. To date, few states have opted out of commitments from newly -listed chemicals under the Stockholm Convention. While the provision exists, states seem unwilling to use it. Instead, as seen with the debate over HBCD in the Stockholm Convention, parties want to negotiate rather than simply opt out.

Parties that opt out are clearly marked as laggards and unable to mask their non-compliance with complicated rules or loopholes. It is public information that a given state deliberately withdrew from an international agreement (or part of). They become targets for civil society activism and other states’ diplomatic efforts. The US effectively opted out when George W. Bush refused to ratify the Kyoto Protocol. The infamy of this event points to the norm of states generally seeking to play by the agreed rules and the reluctance of states to brazenly opt out. When a state opts out, everyone knows who to blame.

Further, their industries lose out when other, cleaner industries become more competitive in a global market. As the leaders innovate and encourage new industries to grow, older industries lose market share. These states then face an uphill battle to catch up with the world moved on without them.

There may be positive effects from opting out, including protecting vulnerable sectors from the negative effects of climate market mechanisms. Developing countries are reluctant (for good reason) to keep agriculture out of mitigation mechanisms, yet some developed countries would like to include agriculture. One third of New Zealand’s greenhouse gas emissions come from the agricultural sector. If these were reduced, without market mechanisms, that would represent a global benefit. New Zealand would be free to reduce its emissions, while developing countries could protect their agricultural sectors from land grabs, and other negative effects potentially associated with mitigation from the agricultural sector.

A similar logic could apply to other land-based activities, such as reducing emissions from deforestation and degradation (plus conservation, sustainable management and enhancement of forest carbon stocks) (REDD+). Brazil could reduce emissions from the forest sector, to count towards its national accounting of reductions, while other countries will unclear land tenure could opt out, and protect local communities.

The Paris 2015 Agreement, if there is one, looks so far to be a bottom-up compilation of national contributions toward global reductions. Stronger action may require bolder ideas.