When Should should be Shall

Having got their hands on a few copies, members of the Accra Caucus group met this morning to discuss the implications. There was general agreement that it falls way short of the desired outcome. It was not all bad – a particular cause for cheer was a specific reference to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The text also includes language to ensure that REDD does not promote the conversion of natural forest to plantations, although it appears that the Democratic Republic of Congo is strongly lobbying for the removal of this section.

But the overall verdict was decidedly a ‘thumbs down’. Text on social and environmental safeguards has been shifted upwards to form part of an ‘informative’ preamble, rather than forming part of the ‘operative’ body of the document. This clearly reduces the potency of the statements. Moreover, they are phrased in a passive voice (e.g ‘transparent forest governance structures should be promoted’) instead of the clear instructions (e.g. ‘Parties shall promote transparent forest governance’) laid out in the draft from Barcelona. The removal of the specific reference to Parties as the subject of these sentences leaves one uncertain as to whom exactly bears the responsibility for fulfilling these pledges. Could it be up to forest concessionaires, civil society organizations, external monitors? Governments in REDD participant countries can doubtless think of other actors to which these onerous, yet critical, duties can be passed on.

Look back at the example above and you will note the word ‘shall’ in the Barcelona text. In most of the revised draft, this word has been replaced with ‘should’. In common legalese this is a very important distinction. ‘Shall’ precedes an instruction, an obligation, and usually necessitates some form of enforcement or redress for non-compliance. ‘Should’ is more of a polite request. That is simply not good enough.

Parties are currently meeting to finalise the text. We expect a final outcome at 16:30 local time. Watch this space.