Is it reasonable to interpret the Cancun Agreements to the effect that
1. The development of guidelines for low carbon development strategies or plans for developed countries is included in the work programme in 1/CP.16 Para. 46 because it is among “the modalities and guidelines described above”?
2. Low carbon development plans are among the “processes described in this section” – as referred to in Para. 47 (which would indicate that Parties could have submitted their views on the initial scheduling of these plans in their submission due 28 March 2011)?
3. In Para. 66, a work programme is agreed. It seems clearer that guidelines for low carbon development plans are not included in the items for this work programme. Is this correct?
4.Is it reasonable to interpret that low carbon development plans are among the “processes described in this section” – as referred to in Para. 67?
Summary: The most likely interpretation of the language in Paras 46-47 and Paras 66-67 is that guidelines for low carbon development plans are not included in the items for the work programme described and that Parties are not invited to submit views on them. Further, the language in Paras 45 & 65 indicates that neither developed countries nor developing countries are required to develop low carbon strategies or plans. A similar situation applies for developing countries, although they were encouraged, not mandated to develop low carbon development plans (1/CP.16 Para. 65).
The Cancún agreements decided that developed countries should develop low-carbon development strategies or plans (1/CP.16 Para. 45). In Para. 46 the agreements decide on a work programme for the modalities and guidelines “described above,” although low carbon development plans are not specifically referred to among the listed items in the work programme. In Para. 47, Parties were invited “to submit views on the items mentioned in paragraph 46 above, including with respect to the initial scheduling of the processes described in this section, by 28 March 2011.”In Para. 67, as with developed parties, Parties were invited “to submit views on the items mentioned in paragraph 66 above, including with respect to the initial scheduling of the processes described in this section, by 28 March 2011.”
1. It is possible to interpret Para 46 as requiring the development of modalities and guidelines for the low carbon development strategies/plans identified in Para 45 for the reasons suggested in the query. However, a more reasonable interpretation is that Para 46 only applies to the work programme specifically enumerated. Para 46 is very specific about what must be done to develop the modalities and guidelines “described above,” and does not mention low carbon development plans. Unfortunately, there is no language in Para 46 that would allow for its expansion (e.g., including or including, but not limited to). Moreover, Para 46 seems to focus on the measurement and reporting of greenhouse gas emissions, and not much on efforts to reduce emissions. For these reasons, it is difficult to interpret Para 46 as capturing the work included in Para 45.
2. Again, because the low carbon development plans are not mentioned in Para 46, and are not incorporated by reference, it is difficult to interpret Para 47, which invites parties to comment on the items mentioned in Para 46, as inviting parties to comment on low carbon development plans. The language in Para 47 regarding the “processes described in this section” appears to relate to Para 46. Note that the only other time that “section” is used in the document is in a context identical to Para 47 (see Para 67). Notwithstanding the fact that the meaning of “section” is unclear, the language of Para 47 is fairly clear that it is only inviting comment on Para 46. The text reads: “Invites Parties to submit views on the items mentioned in paragraph 46 above, including with respect to the initial scheduling of the processes described in this section, by 28 March 2011”. The term “including” does not broaden the invitation, but rather appears to highlight one aspect of the work programme described in Para 46 on which views can be submitted.
Developing Countries (questions 3&4)
3. The same analysis as described above with respect to Paras 45-47, applies with respect to the developing countries and to Paras 65-67. In addition, note that Para 45 provides that developed countries “should develop low-carbon development strategies or plans.” This does not appear to be a mandate for developed countries, and appears similar to the “encouragement” provided to developing countries to do the same. The terms “must” or “shall” denote a mandate, whereas “should” appears to leave discretion to the developed country as to whether to develop a plan. As such, it does not appear that there is a significant distinction between Para 45 and Para 65.