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‘Shall,’ ‘Should,’ and the Fate of the Earth

Words matter. An obvious proposition, but never so obvious as in the agreement recently adopted in Paris by the United Nations Framework Convention on Climate Change. Deconstructing Paris, a New Zealand website devoted to analyzing the various drafts leading up to the agreement, noted that the penultimate draft contained more than 1,000 sets of brackets, offering alternative wordings from which the delegates had to choose. Here’s one particularly brackety paragraph:

[Each Party][All Parties] [recognizing the principle of common but differentiated responsibilities and respective capabilities] [shall][should][other] regularly [formulate] [prepare], [communicate] [submit], [maintain] [update] and [shall][should][other] [implement] [fulfill] [intended][nationally determined mitigation [commitments][contributions][actions]] [nationally determined mitigation commitments and/or contributions] [a nationally determined contribution with a mitigation component], [, which can be in the form of co-benefits resulting from [its] [the Party’s] adaptation contributions and economic diversification plans] [programmes containing measures to mitigate climate change]

As the deadline approached, attention focused on one particular set of auxiliary verbs: shall (implying a commitment) and should (implying a general wish and desire). The United States delegation was especially partial to should. Legally binding language, such as shall, would have required that the treaty be submitted to the Senate, which would almost certainly scuttle it.

By the end of the conference, the United States had succeeded in plucking out all its targeted shalls, and everything looked copacetic. But as Todd Stern, the lead negotiator, said on NPR, there was a moment of panic at the very last minute. “So the draft comes,” Stern told Ari Shapiro. “We print it. We all sit down. And I’m flipping through it, and I go, ‘What happened here??’” What happened was that one line in the final text read, “Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets” instead of the agreed-on “Developed country Parties should … ”

Stern informed Secretary of State John Kerry. “When I looked at that, I said, ‘We cannot do this and we will not do this,’” Kerry told reporters later. “‘And either it changes or President Obama and the United States will not be able to support this agreement.’”

The Washington Post picks up the story:

The Kerry team tried to investigate how the wording had been changed and whether they could fix the text without a risky reopening of the proposal for further debate. After the call to [French Foreign Minister Laurent] Fabius, U.S. and French officials decided together that the word change had been accidental. As such, it could be handled as an ordinary typographical error and erased at the discretion of the conference leader.

The final report is hardly shall-free. There remain 142 of them, on more or less uncontroversial matters, such as “Developed country Parties shall biennially communicate indicative quantitative and qualitative information … ”

The 40 shoulds pertain to anything that might raise the ire of Sen. James Inhofe, including, from the preamble,

Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity …

Now that the document is signed, sealed, and delivered, and the fate of the earth looks slightly brighter, one can note that both the contentious words are a little bit hinky. Should, to my ear, is a rather casual Americanism, speaking to our country’s touching affinity for aspirational pep talks: “I should lose 20 pounds,” “We should all treat each other more kindly,” etc. I should think that a formulation like “endeavor to” would offer the same nonbinding sentiment, with a bit more elegance.

As for shall, I learned in junior high school way back when that in the third person, will denotes simple futurity and shall (in Bryan Garner’s words) “determination, promise, or command,” while it’s reversed in the first person. Garner writes in his Modern American Usage that those distinctions have faded. He concedes that in legal documents, shall is still used to “impose a duty … , but in law it is declining because of increased recognition of its hopeless ambiguity as actually misused by lawyers.” He concludes: “there’s simply no reason to hold on to shall. The word is peripheral” in American English.

If that’s the case, maybe the Paris talks represent the final moment of shall’s glory.

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