Is there legal basis for the interpretation of Kazakhstan and Belarus with respect to Article 3, paragraph 7 ter of the KP, that this paragraph refers to the “first commitment period” and that there is a difference between the years 2008-2010 as calendar years and the years 2008-2010 as commitment period years, so that the paragraph may not apply to them?
Article 3, paragraph 7 ter provides as follows:
” […] Any positive difference between the assigned amount of the second commitment period for a Party included in the Annex I and average annual emissions for the first three years of the preceding commitment period multiplied by eight shall be transferred to the cancellation account of that Party.”
In my view, the reference to “first three years of the preceding commitment period” is to 2008-2010 regardless of whether a Party taking a commitment in CP2 had a CP1 QELRC.
The rules of treaty interpretation in art 31 of the 1969 Vienna Convention on the Law of Treaties requires, amongst other things, that words be given their ordinary and natural meaning.
There is nothing in Art 3.7ter which indicates that the reference to the preceding commitment period only applies to Parties with a CP1 QELRC.
As such, art 3.7ter would also apply to Belarus and Kazakhstan and would have the effect of limiting their CP2 assigned amount to their annual average emissions between 2008 and 2010 (even though they did not participate in CP1) multiplied by eight (which is the length of CP2).
These countries may be arguing for a distinction between 2008-2010 as calendar years and 2008-2010 as commitment period years so that their CP2 assigned amount is not limited by reference to their actual emissions between 2008 and 2010, but given the rules of treaty interpretation, this line of argument is, in my personal view, not sustainable.