“Shall take” and “shall undertake” – Draft text language

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Date produced: 16/12/2009

Paragraph 21 of the draft COP 17 Decision in the AWG-LCA Conclusions states that “Developing country Parties shall [under]take nationally appropriate mitigation actions”. What is the significance of the brackets around “under”? Does either “take” or “undertake” imply a stronger legal commitment?

As paragraph 21 currently stands, the difference is non-existent to marginal. ‘Undertake’ could be said to be a more formal and serious word than ‘take’ but it’s a matter to tone rather than law.

There is greater difference, perhaps, if you take “shall undertake” out of the context of the language of para 21 and think about it as language prefacing what the parties are about to do, eg “parties shall undertake to [create][perform] [xyz]”. In that context, it is weaker than “shall take” because it could be said to suggest that the parties are not agreeing to take the action now, but are merely undertaking to agree to do the relevant action later in time. An agreement to agree as it were which is arguably unenforceable. That’s not how it’s used here but if the language shifts, it may be worth watching.