“Should” vs “Shall”

There are two observations that I made when I first began observing the climate negotiations this year.  First, it was amazing how fifty, sixty, seventy, one hundred countries could spend obscene amounts of time debating just one word in one line in one paragraph in an entire text.  Negotiators would go back and forth expressing often passionate views on why or why not a specific word was the right choice.  In agreements as broad as the draft Paris agreement, individual words still greatly mattered.  Second, I found it fascinating that these words often had very different meanings and connotations for each nation and each culture, making it all the more difficult to reach consensus.  Even once a word is agreed upon in English, it has to then be translated and undergo scrutiny from parties to assure the text is a uniform one when it’s sent back to parliaments, legislative bodies, presidents, prime ministers, kings and queens, etc.

It not all too surprising, then, that just one single word almost resulted in the near-collapse of two very hard fought weeks of progress in Paris.  Just as the final plenary session was set to begin on Saturday night, Dec. 12th, the United States negotiating team led by Secretary of State John Kerry noticed a line in Article 4 (the article dealing with mitigation) of the proposed agreement that read,

“Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets”

What the US had been negotiating for (and thought they had achieved) was a line that was supposed to read,

“Developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets”

 

There doesn’t seem to be much of a difference between those two sentences, but that single discrepancy was a deal breaker for the US team.  If the words weren’t switched, the United States would not be a party to the agreement.  With the plenary session already delayed way past its intended start time, this 11th hour realization set off a fresh frenzy of apprehension and anxiety as negotiations and COP staff huddled to resolve the issue.  In the end, the United States got its way and the wording was changed.  As the plenary session began, the COP President Laurent Fabius called for the clerk to read a list of typographical errors that would be fixed in the final agreement.  Along with grammatical and spelling errors, it was announced that “shall” would be changed to “should” and that was that.  Minutes later, Fabius hammered his neon-green leaf shaped gavel and the agreement was adopted.

So why exactly was “shall” such a deal breaker for the United States?  In short, the word “shall” in the past has implied a legal obligation.  In this context, the “shall” wording would legally bind developed countries (including the United States) to set definite greenhouse gas emission reduction targets.  So where’s the problem?  The Obama administration has already rolled out the Clean Power Plan, which does just that–it sets definable and measurable emission reduction targets.  The problem comes from the fact that any international agreement that legally binds the United States to emission targets will have to be submitted to the Senate for ratification.  With the Senate vowing to kill any Paris deal placed in front of them, President Obama and his team were adamant that the final Paris text COULD NOT include language that binds the United States to internationally-mandated emission cuts.  Doing so would result in the undermining of all the work being done to push the Clean Power Plan, which is already on somewhat shaky legal grounds.

Thankfully, the issue was resolved and the crisis was averted.  But all the same, the “shall” controversy shows us yet another example of how fragile these climate negotiations are.  It is another case in which to be impressed and take pride in the fact that almost 200 countries were eventually able to agree on every single word in a 30 page document.  For this reason and many others, Paris should be considered a huge success.

Week 1–From Fanfare to Fumbles

Week 1 is about to wrap up here in Paris.  COP 21 sure started off with the bang everyone was anticipating.  Monday saw a marathon of world leaders take the pulpit and voice their calls (some passionate, some fierce, some lukewarm) for negotiators to forge a strong climate agreement.  Energy was high and the atmosphere was charged.  But after the presidents, prime ministers, princes and kings all left for home and the negotiating began on Tuesday, it became very clear very quickly that there is still much work to be done.

The pre-Paris negotiations in Bonn produced disappointing results after Parties resorted to their old routine of bickering, nitpicking, accusing, and blaming.  Now almost halfway through COP 21, it seems old habits die hard.

For those who may not know, negotiating through pages of text is a labyrinth full of struggle at every turn.  Moderators will go through line by line of the entire agreement and invite Parties to share their views.  Any country can oppose a line, a sentence, a word,..anything.  If a piece of the text is disagreed upon, it gets put in brackets “[ ]” as a symbol to return to the text at a later time to renegotiate.  Text can only be approved by consensus.  If even just one country voices its opposition, the text gets condemned to brackets and moderator moves on to the next line.

Draft text is projected on a screen for all delegates and observers to follow along
Draft text is projected on a screen for all delegates and observers to follow along

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Does the U.S. want a legally binding treaty?

With just two weeks left before the first day of negotiations in Paris, the United States is still at odds with the international community over what the legal structure of a potential agreement might look like.  In an interview with Financial Times last week discussing the Paris agreement, Secretary of State John Kerry was quoted as saying,

“It’s definitively not going to be a treaty…They’re not going to be legally binding reduction targets like Kyoto or something.”

These comments come just weeks after U.S. climate envoy Todd Stern plainly told a Senate Foreign Relations subcommittee, “We are looking for something that is nonbinding.”

 

The stance of the Obama administration isn’t exactly news.  It’s been known for some time now that the President would seek a nonbinding treaty for a number of reasons.  First, should any new agreement or treaty introduce legally binding emission targets for the United States, it would require the ratification of the U.S. Senate.  Given the current political climate in Congress, it would be all but impossible for at least 67 senators (two-thirds of the body) to sign on to the deal and the treaty would be dead upon arrival.  A nonbinding agreement also gives the United States a hand with countries like India and China, who have repeatedly balked at the notion of being legally bound to greenhouse gas emissions in the same manner as developed nations.

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