Next steps: domesticating the Paris Agreement

South Africa and the Paris agreement

By Happy Khambule

Although South Africa has announced its intention to sign the Paris Agreement, there is still a long road ahead before it can be domesticated.

The Paris climate change conference (United Nations Framework Convention on Climate Change 21st Conference of the Parties (UNFCCC COP21)) stood out as not only a symbol of global solidarity, but also a beacon of hope for the then flailing international climate change negotiations. It was an opportunity for the international community to show its resolve and further define its role in governing global commons. So it came as no surprise when COP21 ended with a new international climate agreement, the Paris Agreement, with South Africa playing an instrumental role in closing the deal. Although many question its value, the Paris Agreement sets up an international legal framework for countries to shift toward a zero-carbon and climate-resilient world, and signals a turning point in the international community’s commitment to addresses climate change.

In fact, the Paris Agreement is part of the Paris Package, and it was the Paris Package that was adopted by South Africa along with 195 other countries at the end of COP21.  The Paris Agreement must be read with the Paris Decisions which sets out what is necessary for the Paris Agreement to enter into force, and must be consulted until the Paris Agreement comes into effect. The Decisions also has implications for Nationally Determined Contributions (NDCs).  For countries that submitted their Intended Nationally Determined Contributions (INDCs) prior to COP21, these are automatically considered to be NDCs.

Adoption of the Paris Package is a point in the process where parties to the Convention formally establish the form and content of the agreement. South Africa, like other parties, needs to take certain steps domestically to give effect to the Paris Agreement internationally.  However, before the Agreement can be made relevant at a domestic level, South Africa needs to make a number of administrative and procedural strides.  Although there are still various processes that need to be followed at the global level before the Agreement comes into effect, let alone becomes binding, South Africa can and should get its legislative and regulatory house in order in the meantime. For a start, this requires an analysis of South Africa’s climate change legal regime, bearing in mind that some domestic legislation and regulations may require supplementation or adjustment in order to be consistent with the procedural requirements of the Paris Agreement.

Very simply, the Paris Agreement is an implementation tool. What this means is that it is a legal instrument that enhances the implementation of the Convention, without prejudicing its objective and aim to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty. The negotiations will probably never again produce anything like it.

South Africa is not yet formally a party to the Paris Agreement. The UN Secretary General, Ban Ki Moon, has invited world leaders to a high level signing ceremony in New York on 22 April 2016, and parties to the UNFCCC are given from then until 21st April 2017 to ratify the Agreement. Some parties may opt to accede to the Paris Agreement after the signature period, but late accession has draw backs, one being exclusion from placing or including reservations in their instruments of approval or ratification.

The Paris Package states that only after a certain threshold has been reached can the agreement take effect: “only after at least 55 Parties to the UNFCCC representing at least 55 percent of total global greenhouse gases sign on and indicate their consent to be bound will the Agreement “enter into force,” meaning it will come into effect and be legally binding.”  This means that signature is not enough for the Paris Agreement to come into force.

Signature of the agreement serves as a commitment to refrain from acts that would defeat the objective and purpose of the Agreement, but signature does not automatically mean that a country becomes party to the Agreement. As with many other international agreements, becoming party to the Paris Agreement is a two-step process. The first step is for countries to sign the Paris Agreement.  The next is to indicate consent to join and be bound by the agreement.  This is referred to as ratification.  In this case South Africa would need to deposit its instrument of ratification in the UNFCCC depository.

The Paris Agreement is an outcome of the Durban COP; its scope and differentiation, form and tone, and characteristics of the suggested nature are all a result of COP17, at which the Durban Platform was agreed.  As the champion of the Durban Platform, which set out the path towards the Paris Agreement, South Africa should be amongst the first countries to sign the Paris Agreement. In being a frontrunner signatory, the country will be able to communicate its legislative peculiarities as well as formally make reservations on aspects of the Paris Agreement that are either contentious or inconsistent with South African law, whilst developing solutions for those challenges. This can be prior to embarking on an arduous constitutional mandated ratification process.

South Africa has a duty and an obligation to see the actual domestic operationalisation of the agreement in a transparent and ambitious manner and needs to sign the agreement even before debating the process of domestication.

The Durban mandate ends when the agreement comes into effect.  What is certain is that COP17 changed the climate negotiations, Paris has changed international climate governance, and it is time for South Africa to embrace the shift to low carbon development, not just in rhetoric but institutionally, legally and politically.

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