By Tafadzwa Dhlakama

todIn 2015, the 21st session of the  Conference of the Parties (COP) to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) was held in Paris. World leaders gathered to agree on a new global climate change agreement commonly known as the Paris Agreement (PA). To date, 132 of the 197 parties to the UNFCCC have ratified the PA including about 31 of the 54 African countries whom form the African Group Negotiators (AGN) on Climate Change. The agreement effectively entered into force on the 4th of November 2016, way beyond the 2020 anticipated year of entry. The swift entry into force of the PA when compared to the previous climate agreement, the Kyoto Protocol is remarkable. One reason this has been the case is because of the uniformity of responsibilities between developed and developing countries. It is in this light that countries such as Zimbabwe which are still to ratify and more so domesticate the PA need to self-introspect on when it will be best to ratify the new global climate agreement. This opinion piece will highlight the various considerations that may be resulting in Zimbabwe delaying in ratifying the PA. The author humbly submits that it is now more an issue of ‘when’ rather than ‘should’ Zimbabwe be part of this new global climate change order.

Arguably, environmental issues can adequately be addressed broadly at an international level due to the non-territorial nature of issues involved. This being the case, international law through the 1969 Vienna Convention regulates the manner in which treaties or protocols that bind parties can only take place only after ratification by the party involved. Article 26 of the Vienna Convention, pacta sunt servanda states that ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. This international obligation, however, is not cast in stone as nations have room to withdraw from some conventions in the same manner they chose to be bound by them. In fact, Article 28 of the PA allows a party (nation/state) to give one year’s notice of their intention to withdraw from the agreement anytime, three years after the agreement has been in force.

On the 22nd of April 2016, Zimbabwe represented by the President RG Mugabe appended its signature to the Paris Agreement. The process of ratification however goes beyond mere signature to the agreement and as such Zimbabwe has taken more than a year to ratify the PA notwithstanding the signal of clear intent. The Constitution of Zimbabwe provides guidelines and procedures that should be followed for international agreements to have the force of law in Zimbabwe. Section 327 of the Constitution states that:

(2) An international treaty which has been concluded or executed by the President or under the President’s authority

(a) does not bind Zimbabwe until it has been approved by Parliament; and

(b) does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.

It is as such that Parliament of Zimbabwe given the intent shown by the president in signing the PA should decide on ‘when’ to ratify the PA. Furthermore, there is nothing that withholds Parliament to go beyond ratification and domesticate the PA through an Act of Parliament. The parliamentary portfolio committee on Environment, Water, Tourism and Hospitality Industry should take this as an urgent matter that needs to be tabled during the current seating of the members of parliament. The public now eagerly awaits the introduction on the motion of ratifying the PA in the house of assembly, least we become a nation that only pays lip service and is a signatory of all whilst an implementer of non.

Often the argument raised by the Government of Zimbabwe against swiftly accenting to globally ‘binding’ agreements is the need to have more time for reflection. This is a rationale, notable and worthy basis least the government commits to actions it cannot, unable or unwilling to fulfil. One clear example has been the lack of interest from developed countries to accent to the Kyoto Protocol and the subsequent Doha Amendment. The lack of commitment from developed countries to the Kyoto Protocol and subsequent Doha Amendment is simultaneously cited by developing countries as a sign of lack of good will in climate change negotiations. However, contracting parties (Zimbabwe included) to the Kyoto Protocol can only continuously urge non contracting parties to fulfil commitments under Kyoto Protocol given that  the PA will operate from 2020 onwards.

The other reason why Zimbabwe can be seen to have been stalling in ratifying the PA was the developing countries need to have more bargaining power over developed countries to fulfil pre-PA commitments. The PA placed double conditions which had to be fulfilled before the PA could enter into force. The PA required at least 55 parties to the UNFCCC that would also account at least 55 % total global greenhouse gas emissions. Developing countries (African in particular) relying on the historical failure of previous climate change agreements hoped this could stall the coming into force of the PA and give them a greater bargaining arm. However, circumstances drastically changed with nations 132 nations contributing a total of 75% emissions having since ratified the agreement. Sadly, however some of the African countries whom form part and parcel of the same AMCEN and AGN ratified the PA relinquished the bargaining power the group sought to use towards ensuring compliance with the Kyoto protocol. In addition, Africa’s total contribution to global emissions is merely 12.5% therefore weakening the ground that nations were standing upon. Zimbabwe represented within the AGN and the African Ministerial Conference on the Environment (AMCEN) therefore raised ‘deep concerns’ on the early coming into force of the PA but this cannot be undone.

Accompanying the issue of bargaining power is the complimenting issue of obligations under the Paris Agreement. Pre-PA, there was fierce debate as to what form the new climate deal should entail, that is its legal nature. This form is now present for everyone to deliberate and make decisions as is being done in Zimbabwe. Clearly, the PA is ‘legally’ binging on each party that seeks to be bound by it. To a larger extent the main obligatory provisions that Zimbabwe would have to comply with under the PA relate to preparing and communicating National Determined Contributions (NDCs) and subjecting reported information to technical expert review and multilateral consideration amongst others. the other duties and obligations placed on the contracting parties give much room for any nation to operate within as can be derived from the choice of words used in the agreement. One example is Article 10.2 that states that ‘Parties… shall strengthen cooperative action on technology development and transfer’. Whilst there may be many ways to interpret this provision; the manner, time lines and amount of technology transfer is not guided giving room on member states on how to fulfil such obligations.

In the meantime, that Zimbabwe is considering when to ratify the PA, there are current processes that Zimbabwe can still play a major role. The early coming into force of the PA before the 22nd COP in Marrakech meant that the first Conference of Parties to the Paris Agreement (CAM1) commenced. CMA1 reached a decision that 2018 would be the deadline upon which the rule book that will guide implementation of the PA should have been finalized under the Ad Hoc Working Group on the Paris Agreement (APA). Given that APA was created under the UNFCCC, Zimbabwe can play a major role in the crafting of this rule book and still make submissions whilst waiting for Parliaments ratification of the PA.

Furthermore, Zimbabwe already has made significant strides in the climate policy related arena. Zimbabwe already has a National Climate Change Response Strategy (NCCRS) and a draft climate policy. It is thus opportune that Zimbabwe’s policy documents should reflect and speak to the current international climate agreement. Entities created under the PA such as the Green Climate Fund can aid in meeting the USD10 billion climate change financial resources needs identified in the NCCRS. A clear and precise climate change framework is one such manner we can attract finances to make Zimbabwe climate resilient. The nations progressive Constitution on environmental issues positions Zimbabwe to lead the climate change discourse just like Kenya which has moved beyond having a NCCRS and climate policy to enacting a Climate Change Act.

It is my humble submission that the climate discussions should progressively move from ‘should’ to ‘when’ Zimbabwe ratifies the PA. In the interim, Zimbabwe’s parliament should cast its eyes beyond ratification and ensure the climate policy moves beyond being a policy to an act that can domestic the PA as well. It is through such actions that the influence that Zimbabwe carries at the international level can carry weight. Furthermore, discussions and submissions on Zimbabwe’s position in the crafting of the Paris rule book should be commenced. Zimbabwe cannot afford to continue taking a back seat, following other nations footsteps. It is high time the nation takes its national prominence of being the continents think tank and guide the African voice, views points, aspirations and targets in the Paris Rule Book.

[Originally published on the author’s blog]

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