In international legal commitments all the power is in the verbs. And in the most recent (and perhaps final) version of the Paris Agreement, the verbs used in Art. 4 on Mitigation strengthen the actions required by developed country Parties.
Article 4.4 is on the differentiated mitigation efforts required by all Parties to the Agreement. The text released this afternoon declares that, “[d]eveloped country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets.” Conversely, the requirement for developing country Parties is that they “should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.”
Even after a quick read, the power and effect of the verb “shall” compared to “should” or “are encouraged to” is instantly obvious. The language of “shall” is stronger; we’ve known this since biblical times. The commandment was “thou shalt not kill,” not thou should not kill, or thou is encouraged not to kill. Shall is an obligation, a command. Should is just an expectation.
Under the current Paris Agreement, developed country Parties have a positive obligation to lead on economy-wide GHG emission reductions. On the other hand, developing countries have no GHG emission reduction obligations under Art.4.4. Instead, developing country Parties are expected, or perhaps have a moral duty, to enhance their mitigation efforts. A statement supporting developing countries to voluntarily choose to try and move towards economy-wide GHG emission reductions furthers the expectation that they will enhance their mitigation efforts.
While differentiation between developed and developing Parties may seem intuitive, the “shall” “should” dichotomy is quite new in Art. 4.4. In the draft version distributed two days ago, on December 10, 2015, all the verbs were “should.”
The text read: “Developed country Parties should continue to take the lead. Each Party that has previously communicated absolute economy-wide emission reduction or limitation targets should continue to do so, and all Parties should aim to do so in light of different national circumstances and stages of development.”
This previous version of the text was a conglomeration of expectations, and all Parties were expected to be doing something to mitigate GHG emissions. But, no Parties were actually obligated to perform certain actions. As negotiations have progressed over the past two days it is clear that a hierarchy of actions has developed, and this hierarchy ensures that all Parties know what the Paris Agreement requires of them. Under this hierarchy:
WHO: WHAT THEY ARE SUPPOSED TO DO:
- Developed Parties Must lead on economy-wide GHG emission reduction targets
- Developing Parties Expected to enhance their mitigation efforts
- Developing Parties Economy-wide GHG emission reduction targets encouraged
As the final text is considered by the Parties tonight, it will be important to note whether this hierarchy of mitigation actions is preserved with “shall” and “should” or if we return to a list of “should” expectations as contained in the earlier version of the text.
***UPDATE: During the final meeting of the Comité de Paris the term “shall” was changed back to “should.” Therefore, developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets. The power of one word changed this obligation back into an expectation. The COP Presidency explained that the use of “shall” was a technical, unintended error and that the term “should” was meant to be used in the Agreement.