If Shall shall be Should, We Would- Paris Climate Agreement

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I was listening to  European Parliament President Martin Schulz’s intervention after the climate agreement was adopted in Paris on 12th Dec late in the night. ‘Historic’ is an often-abused adjective in politics, but today’s agreement deserves this qualification”, he said.

Interestingly, less than 50 days after, another adjective has emerged in USA on climate change issue during the presidential debates among Republican and Democratic candidates. ‘Callous’ is that adjective used to describe the attitude of the candidates, and even the moderators of the debate on climate change. The most crucial election in the world to elect a leader in the most powerful country is now signaling the true fate of the Paris Climate Agreement.

Benjamin Franklin, USA’s first Ambassador to France, is credited for creating world’s first bifocal lens. Tired of switching between two pairs of glasses, Franklin cut two sets of lenses in half and assembled them in a frame. Paris Climate Summit did exactly that after two groups of countries haggled for more than two decades about their distinct history of carbon emission and future road map to de-carbonize the development space. Tired of these wrangles, Paris climate summit of United Nations Framework Convention on Climate Change (UNFCCC) in December 2015 succeeded in forging the two groups in such a way that both the groups are mounted on to serve a common purpose with differentiated responsibility.

Significant part of success of bringing the two blocks together can be attributed to honest and French diplomacy.

Interestingly, it was American diplomacy that raised literally last minute issue about innocent and decent four-letter word ‘shall’ that almost cracked the bifocal frame assembled so carefully by French Presidency. That was in Article 4 in its 4th Para, that was earlier missed by American team, but when it was noticed the hell broke and whole COP21 came to halt. French efforts with seductive diplomacy turned into bizarre show of calls behind curtain. The sentence that made American delegate to pull the chain in running train was the sentence: ‘Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets. 
 Developing country Parties should continue enhancing their mitigation efforts’.

The English dictionaries, including American edition, explain 
that “Shall” expresses certain laws, rules and events that are intended to be certain in future. It gives legally binding color to the sentence. ‘Should’ is used to express advisability, possibility or making suggestions, permissibility, makes propositions and recommendations that has color of encouragement.

What happened next for nearly an hour in that high frequency excitement is the subject of classical case study in modern multilateral diplomacy. It was conveyed by USA that either French Presidency change it to ‘ should’ or Americans would not support it. It was indeed too late to fail the Paris agreement. The sentence was changed to “Developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets.”

Witnessing that high-octane development, sitting and waiting in the delegates’ hall in Le Bourget-suburb and venue of COP21- and corresponding at TGV speed on WhatsApp with my friends in the frontline of negotiations, I was not baffled. I had seen such terse turns, tricky trials and turbulent tribulations in environmental diplomacy before.

What baffled me was what triumphed at the end of that drama-a spirit of ‘we shall’, passing the phase of ‘we should’. Without such ‘we shall’ instinct proactively demonstrated by the developing countries, Paris Climate Summit would have opened yet another round of negotiations for next two decades. But the French Presidency’s seductive gravel went down to adopt the Paris Agreement.

The American drama in the ‘green room’ was brought on stage with a script that was read out by the Secretariat of UNFCCC as ‘ typographical error’, which of course was cover-up. Earlier drafts clearly indicated ‘shall’ which were overlooked by the Americans. It all boils down to the fact that USA did not want the Paris agreement to be legally binding, because the Republican dominated Senate would never approve it as per their business-as-usual. Verb ‘should’ would give developed country a freedom from legality.

While presenting the draft agreement Laurent Fabius, French Foreign Minister and President of COP21 described it as, “ambitious and balanced, fair, sustainable, dynamic and legally binding”. French President Holland described it as just ‘binding’ so also United Nations press release issued immediately after the French Presidential gravel went down.

AS per the international legal experts on international law, any agreement is not binding in so far as it does not provide for coercive or punitive mechanism for countries that fail to comply with their commitments. If the States that would ratify the Paris agreement want to just walk out of commitment, there is no provision to deter them.

The intent, however, as can be read from the Paris pact is that legally binding policies on compliance would emerge in future. As per agreement, countries are required to reconvene every five years, starting in 2020, with updated plans that would tighten their emissions cuts and starting in 2023 to publicly report on how they are doing in cutting emissions. Considering the on going Presidential debate those dates appear to be, to use another adjective, a ‘distant’ dream that does not show any sign of getting ready.

Benjamin Franklin’s quote loaded with verbs says, ““By failing to prepare you are preparing to fail”. END

-BY Rajendra Shende, IIT-Alumni, served as Director in UNEP. He is now chairman of TERRE Policy Centre.

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