A debate over the words ‘should’ or ‘shall’ in the final draft was passed off as an undetected error thanks to some timely French diplomacy

Could the fate of the world hang on a single word? Could the whole Paris climate agreement have been scuppered at the very last minute? History will record a diplomatic triumph but it may skate over events that took place in the dying moments when all countries believed they had a deal.



Here’s what happened at the fortnight-long climate negotiations in Paris. Following a third all-night negotiating session, all countries on Saturday morning had been forced to compromise their positions by the French presidency.

The US, China and India, as the three biggest polluters, had all accepted an ambitious target of limiting warming to 1.5C above pre-industrial levels ; the US and Europe had accepted some responsibility for damage done by climate change; developing countries had agreed to a dilution of the original climate convention, and had given way on financing, liability and the dates when there would have to be revisions.



But when, at 1.30pm local time, the French presidency presented its final “take it or leave it” Paris agreement text , adoption of the text should have been a formality.

It soon became clear that something had gone very wrong in the text. Rumours swirled, and it was later confirmed by US secretary of state, John Kerry, that the US had objected to Article 4.4 on page 21 of the 31-page final agreement. US government lawyers had found, it was said to their horror, that they had unwittingly approved a vital word which could make the difference between rich countries being legally obliged to cut emissions rather than just having to try to: “shall” rather than “should”.

Here is global law firm Norton Rose Fulbright on the significance of the two words:



This article requires developed countries to undertake economy-wide absolute emission reduction targets but developing countries to only “continue to enhance” their mitigation efforts. In the draft that was presented for adoption there were two critical words - “shall” and “should”. The expression “shall” applied to the developed countries’ obligation and the word “should” applied to the developing countries’ obligation.

There was a crisis.

According to some, it had always been intended that both rich and poor countries should have the same obligation, namely “should”, not “shall”. This was of huge importance to the US especially which, it said, would have had difficulty signing up to any legally binding obligation to implement its reduction target.

But others claimed that the US was objecting unfairly at the last possible moment to the developing countries’ most important “red line” .

The whole summit, indeed, had turned on the argument that rich countries, which had admitted causing climate change, should take the lead cutting emissions. The principle was enshrined in the overarching, legally binding UN Framework Convention on Climate Change and developing countries had throughout the summit insisted it be reflected in every part of the Paris text. It was their red line.



What we do know is that the US delegation then approached the French presidency, claiming a mistake had been made.

It seems that the presidency advised them to object from the floor of the plenary if they wanted a change in the wording, but warned that this would re-open the whole meeting to other countries’ objections and possibly take two or more days to resolve, if at all. The US immediately understood that if it did so, it would not only be blamed for holding up the meeting , but indeed for jeopardising the whole agreement because many other countries would then object to bits of the agreement that they did not like.



The G77 and other developing countries were then consulted about the dilemma, and told the presidency that this was a red line that they could not cross either because it diluted the whole UN climate convention. [In a nutshell, they said “shall should not become should. Should shall become should, all should think again”.]

At the very last minute, the French came up with a diplomatic solution. It was agreed that there had been a “typographical error” which was put down to an anonymous sleep-deprived negotiating team transferring lines from one draft text to another. The embarrassed French presidency, it seems, agreed that the amendment change of “shall” to “should” could be dealt with as a “technical error”.

Edward King (@edking_CH) Todd Stern: It's a "very interesting mystery" why 'should' changed to 'shall'. "It doesn't happen on auto-correct"

Neither the French presidency, the US government, or UN would comment this week. America’s top climate negotiator, Todd Stern, described it as “very interesting mystery.” But some observers have seen it as the US managing to avoid taking action on climate and getting its own way over the heads of the poor.

Tosi Mpanu Mpanu, the DR of Congo’s lead envoy, told ClimateHome, a news site which closely follows the UN negotiation: “It’s a typo we will refer to many times because frankly speaking, nobody’s buying that.”

Professor Gurdial Singh Nijar, the Malaysian spokesman for the Like Minded Developing Countries (Lmdc) group, which includes India, China and Indonesia, told leading southern NGO Third World Network that he was present throughout the crisis and saw what happened after the final text was shown to them by the French.

We [the LMDC] found the text a little convoluted, but we felt we could consider it. We agreed with it and so did the Group of 77 and China. We felt there was balance and our red lines were somewhat preserved. Then when we went to the hall, we were shocked to find that the US was objecting to Article 4.4. They came up with this incredulous thing that it was a mistake. The EU approached us and said that there is a problem and asked us if we could change the ‘shall’ to ‘should’. When we asked them why, they responded that the Americans had told them that if the word ‘shall’ was introduced, the Congress would not pass it. We said that we have done so many things to get the US on board and they were diluting everything. In this case they were diluting something which was our super-red line.

Just before 7.30pm, the shall/should fiasco was passed off as undetected error in the text, and the meeting moved to adopt the Paris agreement.

“I see the room, I see the reaction is positive, I hear no objection. The Paris climate accord is adopted,” declared the French foreign minister, Laurent Fabius, adding: “It’s a small gavel but I think it can do a great job.”

Was it a stitch-up? America’s great escape? Or a genuine error? Either way, the world had a historic, universal climate change deal.