Have the Non-Annex I National Communications Guidelines (as per decision 17, COP 8) ‘legally expired’? If so, why?
Summary: It is our opinion that the Non-Annex I National Communications Guidelines (pursuant to Annex 1 of Decision 17/CP.8) (“the Guidelines”) have not legally expired. There may be an argument to suggest that once a party’s third national communications have been submitted the Guidelines are not applicable to the fourth national communications. It is clear that the Copenhagen Accord envisaged new guidelines being adopted for national communications going forwards and that the Guidelines are being reviewed, but this does not mean that they are no longer applicable.
There is nothing which expressly states that the Guidelines have expired or puts a timeframe for expiry on them.
The Non-Annex 1 National Communications Guidelines
We understand that the argument that the Guidelines may have expired arises from the document which adopted the Guidelines (Decision 17/CP.8). This Decision states several times that the Guidelines should be used for the “second”, “third” and “initial” national communications, but does not mention communications going beyond the third. On this basis, it could be argued that once a Non-Annex I country has submitted three national communications, the Guidelines do not apply to its fourth communications.
There are a number of different approaches to interpreting legislation. If a purposive approach to the interpretation of the Decision 17/CP.8 is taken, this means the wording should be interpreted in light of the purpose and intention behind the legislation. It seems unlikely that the UNFCCC intended the Guidelines to be used only for three National Communications and then expire in the absence of new guidelines. It is more likely that the initial, second and third national communications were intended to be illustrative rather than exclusionary. Although there are other theories of statutory interpretation (such as textualism and statutory derogation) which could contradict this, the purposive approach is accepted in most countries, including USA, Canada, New Zealand and the UK.
The Copenhagen Accord
The Copenhagen Accord and the draft LCA text state that national communications shall be produced every two years on the “basis of guidelines to be adopted” by the COP. The mandate of the Consultative Group of Experts (“CGE”) was extended in December 2009 (Decision 5/CP.15) from 2010 to 2012. In the terms of reference (Annex to Decision 5/CP/15) it states that the CGE shall “(2)(b) Provide recommendations, as appropriate, on elements to be considered in a future revision of the guidelines for the preparation of national communications”. It is clear that new, revised guidelines are intended to be adopted and that the CGE will be reviewing the existing Guidelines, however, none of this means that the Guidelines have expired. The phrase “future revision” also suggests that the Guidelines are still applicable.
The recitals to Decision 5/CP.15 state that the COP recognises that the “preparation of national communications is a continuing process”. It would therefore be arbitrary to ignore the Guidelines or treat them as if they had expired. It is very unlikely that the process would come to a halt even if the argument referred to paragraph 2 above succeeded. A purposive approach to interpretation would suggest that the Parties intend the Guidelines to apply to national communications until new guidelines are formally adopted to replace them.
For the above reasons, it is our opinion that the Guidelines have not legally expired. There may be an argument to suggest that once a party’s third national communications have been submitted the Guidelines are not applicable to the fourth national communications, and that the Accord envisaged new guidelines being adopted for national communications going forwards, but this does not repeal or replace the Guidelines.