PARIS AGREEMENT AND ITS NORMATIVE VALUE IN INTERNATIONAL LAW by Aprajita Singh & Atul Khanna

PARIS AGREEMENT AND ITS NORMATIVE VALUE IN INTERNATIONAL LAW

                                                                                  * Aprajita Singh & Atul Khanna[1]

 

INTRODUCTION

The Paris Agreement is meant to signal the beginning of the end of more than 100 years of fossil fuels serving as the primary engine of economic growth and shows that the governments from all around the world take climate change seriously. The admittance of both developed and developing countries, including those which rely on revenue from oil and gas production, demonstrate a unity never seen before on this issue.

This pact requires any country that ratifies it to act to stem its greenhouse gas emissions in the coming century, with the goal of peaking greenhouse gas emissions “as soon as possible” and continuing the reductions as the century progresses. Countries will aim to keep global temperatures from rising more than 2°C (3.6°F) by 2100 with an ideal target of keeping temperature rise below 1.5°C (2.7°F).[2]

The agreement will also encourage trillions of dollars of capital to be spent adapting to the effects of climate change including infrastructure like sea walls and programs to deal with poor soil and developing renewable energy sources like solar and wind power. The agreement gives countries consideration in determining how to cut their emissions but mandates that they report transparently on those efforts. Every five years nations will be required to assess their progress towards meeting their climate commitments and submit new plans to strengthen them.

The text of the agreement includes a provision requiring developed countries to send $100 billion annually to their developing counterparts beginning in 2020.

The strong momentum towards the agreement that built over the preceding months was dramatically underscored on the opening day of the summit by the presence of 150 presidents and prime ministers, the largest ever single-day gathering of heads of state. The driving force of the summit was the vast number of “non-state actors,” including governors, mayors and CEOs, and the previous launches in Paris of major initiatives like the Breakthrough Energy Coalition announced by Bill Gates and other billionaires.

Negotiations on many issues were hard-fought and in typical COP fashion, progress through most of the conference was painstakingly slow.  But thanks to deft diplomacy by the French presidency, the summit was remarkably free of the kind of procedural showdowns that have marred previous COPs.  And though the conference ran 24 hours past the official deadline, the final deal was gaveled through one party after another declared that history had been made.[3]

As French President Francois Hollande summed it up, “In Paris, there have been many revolutions over the centuries. Today it is the most beautiful and the most peaceful revolution that has just been accomplished – a revolution for climate change.”

 

LEGAL NATURE OF AGREEMENT

The legal nature of the agreement whether or not it will be binding had been a hotly debated topic in the lead up to the negotiations.

JOHN KERRY- “Any agreement in Paris is definitively not going to be a treaty and there were not going to be legally binding reduction targets like Kyoto.”

[4]BURGER “The main incentive here for compliance is not the threat of some civil penalty — non-compliance would mean environmental disaster.”

The rule of polluter pays can be seen in the statement of Burger. He wants to emphasize that the aim is not to threaten. The main purpose of compliance is not to threaten by civil liability and this would lead to a greater problem that is of environmental disaster if the rules are not complied in nature. The penalty will not lead the damage caused to the environment to be undone it will stay like that permanently and to undo such an effect takes a lot of time and energy which is much more than the amount of penalty paid thus the aim is not to harm the environment in the first place .

NEGOTIATIONS WORK PROCESS FOR PARIS AGREEMENT

The Paris Agreement marks the culmination of years groundwork laid in the aftermath of a failed attempt at achieving a previous global agreement at a 2009 climate conference in Copenhagen. Countries were settled on a bottom-up approach allowing each nation to submit its own plan to reduce greenhouse gas emissions rather than trying to agree on a one-size-fits-all strategy.

After several less-publicized meetings, negotiators from the nearly 200 countries gathered on November 30 at a conference center in Le Bourget airport just outside Paris. A week and a half of talks yielded a draft agreement. Delegates met in closed-door meetings through the night and presidents called their counterparts in other countries. The French leaders running the conference followed along, revising the text of the draft agreement as necessary. The final agreement ultimately required compromises from every party.

MAIN PARTICIPANTS

[5]France is the host country, has received near-universal praise for its handling of the conference. The leaders of host countries in climate negotiations write the actual text of agreement by listening to the concerns of all the countries present. By all accounts, France deftly accounted for all those concerns allowing for passage of the deal without objection.

Leadership from the U.S., China and India also played a key role in facilitating the agreement. All three countries have acted as road blocks in past attempts to achieve climate deals, but in the lead up to this conference each made strong commitments to reduce their own greenhouse gas emissions and contributed to a positive discussion in Paris

Unprotected small island countries, particularly the Marshall Islands, also emerged as the surprise power players of the conference. Representatives from these countries pushed hard for negotiators to set a more ambitious climate target and largely succeeded. [6]

A “high-ambition coalition” led by the Marshall Islands gained support from more than 100 countries, including the U.S., Brazil and members of the European Union, and their efforts resulted in the inclusion of long-term targets and a lower “ideal” warming target.

OBJECTIVES AND GOALS BEHIND THE AGREEMENT

The main objective is to Preventing 2° C warming would require countries around the world to take action to limit or to reduce their greenhouse gas emissions.

The United Nation wants to agree a truly universal global state come ahead tackling climate change for the first time, as it is part of efforts to prevent global warming exceeding 2° C above pre-industrial levels this century. As scientists agree the after effect of this global warming is most severe effect on climate change likely to see heat waves, drought, avalanche and flooding.

The temperature goal

The final draft of the Paris deal includes a temperature limit of “well below 2° C”, and says there should be “efforts” to limit it to 1.5° C. This is stronger than what many countries had hoped just few months back, but it falls short of the desires of many island and vulnerable nations, which had pushed for 1.5° C as an absolute limit.

Long-term goal

To give practical relevance to the temperature limit, the deal also includes a long-term emissions goal. The draft wording aims to peak global greenhouse gas emissions “as soon as possible” and to achieve “balance” between emissions and sinks in the second half of the century.

This is similar to the “emissions neutrality” language, which appeared in the previous draft, but more specific and tightly defined. It effectively means reaching net-zero emissions after 2050, though the lack of a specific timeline is a blow to those that wanted the clearest possible message for investors.[7]

Finance

The agreement places a legal obligation on developed countries to continue to provide climate finance to developing countries. It also encourages other countries to provide support voluntarily — a compromise between the highly polarized positions that have taken centre stage at the negotiations.

Many of the details have been moved out of the legally binding agreement and into the more flexible decisions. This includes the provision that, prior to 2025, countries should agree a “new collective quantified goal” from the floor of $100bn per year, which is the current aspiration. The notion of short-term collective goals has been cut from the text.

Transparency

The deal would set out “flexible” rules on reporting for “those developing country parties that need it in the light of their capacities”. However, all countries would be bound to report “regularly” on their emissions and efforts to reduce them.

A “facilitative, non-intrusive, non-punitive” system of review will track countries’ progress. The rules on transparency are a top priority for the US and EU, which is keen to ensure China, faces equivalent scrutiny of its efforts.

 

 

 

WORLD WIDE CONTRIBUTIONS

Now, parties to the U.N. Framework Convention on Climate Change (UNFCCC) reached a landmark agreement on December 12 in Paris, charting a fundamentally new course in the two-decade-old global climate effort.

Culminating a four-year negotiating round, the new treaty ends the strict differentiation between developed and developing countries that characterized earlier efforts, replacing it with a common framework that commits all countries to put forward their best efforts and to strengthen them in the years ahead. This includes, for the first time, requirements that all parties report regularly on their emissions and implementation efforts, and undergo international review.

The agreement and a companion decision by parties were the key outcomes of the conference, known as the 21st session of the UNFCCC Conference of the Parties, or COP 21. Together, the Paris Agreement and the accompanying COP decision, reaffirm the goal of limiting global temperature increase well below 2° Celsius, while urging efforts to limit the increase to 1.5°. [8]

All countries are expected to submit new NDCs every five years, with the clear expectation that they will “represent a progression” beyond previous ones; Reaffirm the binding obligations of developed countries under the UNFCCC to support the efforts of developing countries, while for the first time encouraging voluntary contributions by developing countries too;

Extending the current goal of mobilizing $100 billion a year in support by 2020 through 2025, with a new, higher goal to be set for the period after 2025 and a mechanism to address “loss and damage” resulting from climate change, which explicitly will not “involve or provide a basis for any liability or compensation.”

 

 

 

 

NEED OF THE PARIS AGREEMENT

[9]As Scientists have warned that if greenhouse gas emissions continue to rise, we will pass the threshold beyond which global warming becomes catastrophic and irreversible. The threshold is estimated as a temperature rise of 2° C above pre-industrial levels, and on current emissions trajectories we are heading for a rise of about 5° C that may not sound like much, but the temperature difference between today’s world and the last ice age is about 5° C, so seemingly small changes in temperature can mean big differences for the Earth.

So it’s not possible to reduce emissions by side of one nation as we all are under one umbrella so this work can be done only when all countries come forward and take strict action to control this at their state level and if we do not take this issue seriously then the climate change conditions in future will be very drastic, hence this is the main reason why we need at national level.

WHY A GLOBAL AGREEMENT IS NEEDED

There is clear evidence that global co-operation will help to bolster individual countries’ efforts on carbon reduction, and increase overall ambition to tackle climate change. Above all, a global agreement provides more clarity and certainty, which will improve prospects for the global economy, for international development and for the natural environment.

The Inter-governmental Panel on Climate Change published its Fifth Assessment in 2014, summarizing the work of thousands of scientists across the world. The message was, in the panel’s own words, “unequivocal”. Concentrations of carbon dioxide and other greenhouse gases are now higher than they have been for nearly a million years, long before human society began. The burning of fossil fuels is the main reason behind this increase. Without strong action, temperatures are very likely to exceed the 2° C target that governments have committed to. This will result in serious consequences including sea level rises, heat waves, loss of snow and ice cover, disruptions to agriculture and food production, and greater extremes of drought and rainfall.

In its 2013 report, for the first time the IPCC put a number on the total amount of carbon that can be emitted, while keeping within the 2° C target.

Keeping within this limit would require the emission of no more than 880 giga tonnes of carbon. This is, in effect, a global carbon budget[10]

 

Economic Progress

There is consensus among business leaders that a strong global agreement will improve economic prosperity in the UK, the EU and elsewhere. Early action will help to avoid the economic cost of climate impacts, which could amount to between 5 and 20 per cent of GDP, depending on the level of warming. There are additional economic benefits in low carbon investment, but signals need to be clear and consistent. Spending on low carbon goods and services is strong and growing. However, in many parts of the world it remains a small proportion of overall investment. As the World Economic Forum states, “progress in green investment continues to be outpaced by investment in fossil fuel intensive, inefficient infrastructure”. While low carbon investment is encouraged, so too is fossil fuel investment, resulting in conflicting signals to business.

By making the wrong types of infrastructure investments now, we are condemning ourselves to more costly adjustments later. International Energy Agency research warns that delayed action would result in substantial additional costs, as high carbon investments made now would quickly lose their utility and value. In UK, the Committee on Climate Change has identified that  UK could save £100 billion from early action. Investment in clean energy and transport systems also brings other economic benefits. It reduces vulnerability to volatile fossil fuel prices and improves local air quality which improves quality of life, saves lives and reduces healthcare spending.

The best way to remove conflicting messages and set clear goals for investment would be to secure an agreement at the global level. A global agreement would allow national governments to introduce stronger policies to cut emissions, without risking impacts on international competitiveness. A clear international framework for carbon reduction would reward low carbon growth, and deter high carbon investment, wherever companies are located. Without a climate agreement, the outlook for business and the economic development of the poorest looks more challenging. Supply chains, particularly of agricultural products like wheat, rice and maize, will be affected, with consequent effects on price. Disruption from extreme weather events will result in significant losses. The World Economic Forum’s report on global risks estimates the total economic losses from Hurricane Katrina at $125 billion, and from Hurricane Sandy at $70 billion for the states of New York and New Jersey alone.[11]

 

UK plays a leading role in efforts to support international development and poverty eradication, linked to the Millennium Development Goals, and the new Sustainable Development Goals to be agreed through the UN in 2015. UK supports developing countries in their efforts to reduce poverty, improve health outcomes, and promote food security and access to energy. Action on climate change is essential to meeting all these outcomes. The Overseas Development Institute (ODI) carried out a thorough review of the impacts of climate change on different development goals and found that climate change had an impact on all of the goals, directly or indirectly. Direct impacts include food security, availability of water, and health outcomes. These, in turn, affect other development goals, such as gender equality, education and human rights

The IPCC is clear that climate change will exacerbate poverty in most developing countries. This is due to a complex range of factors, but particularly food price increases. It notes that, in the years since its previous report in 2007, there have been rapid food price increases, following climate extremes in key producing systems. A similar picture emerges on health. A study, by The Lancet and University College London, stated that climate change is the biggest global health threat of the 21st century. Climate change influences disease patterns, food, water, sanitation, extreme events, shelter and human settlements, which in turn affect health outcomes. Infant mortality is closely linked to under nutrition and food insecurity, both affected by climate change. Reducing carbon emissions will help to mitigate these effects; meanwhile, there are economic, health and social opportunities in low carbon development pathways. Decentralized low carbon energy, for example, such as solar and wind, can provide electricity for the 70 per cent of sub-Saharan Africans who currently have no access. Growth in off grid solar has given 2.5 million households in Kenya access to energy. 2015 provides a crucial opportunity to align development goals with action on climate change, given the discussions around the Sustainable[12]

Development Goals

The Paris agreement needs to acknowledge the importance of climate change mitigation to development and the necessity of finance, both to adapt to climate change and to invest in low carbon economic pathways.

 

Global security

Climate change is also likely to affect global security, with defense experts warning of increased conflict, humanitarian crises and refugee movements. The [13]Pentagon refers to climate change impacts as a “threat multiplier” which aggravates poverty, political instability and social tensions.

Ecosystems and biodiversity

A strong climate agreement is essential to protecting ecosystems and biodiversity, both in UK and elsewhere. Biodiversity is already in decline globally, and climate change will amplify this, significantly increasing the risk of extinctions. The speed of change is of particular concern, as it is unprecedented in geological history, and outpaces the ability of many species to adapt. Academic analysis suggests that for each additional degree of warming a further ten per cent level of extinction is likely With climate change of up to 2 C average warming, conservation strategies will be more challenging and expensive, but if temperatures rise further more major interventions will be required, such as deliberate relocation of species or major ecosystem engineering projects and in some cases they will be impossible.

Prevention, through emissions reduction, is cheaper and more effective than a cure. Ecosystem protection and restoration is of central importance to the economy. The landmark TEEB study (The Economics of Ecosystems and Biodiversity) estimates the future annual costs of biodiversity loss at between £1.4 and £3.1 trillion. Consultants PwC say business is already being affected by declining biodiversity, through increased resource costs or reduced productivity in agriculture. Protecting and restoring ecosystems such as forests and peat lands also helps to reduce emissions. About one quarter of all human-induced emissions comes from agriculture, forestry and other land use, mainly tropical deforestation and peat land degradation. This is recognized in global climate talks. The REDD+ initiative has the dual aim of reducing greenhouse gases and protecting forests in developing countries. Negotiations are underway to provide a financing mechanism, rewarding developing countries for protecting forests.

CONSEQUENCES

What are countries expecting to agree in Paris?

155 countries  have put forward national climate plans as their contributions to the Paris deal. If the pledges are kept to, they would keep warming to perhaps 3°C – universally acknowledged to be way beyond any safe limits. So the idea is to continue meeting and [14]persuade countries to increase their levels of ambition in coming years. But by remembering that early action is much more effective and in the meantime, fossil fuel energy infrastructure will be built, locking in future emissions and making cuts harder.

If the commitments from the major countries are in the bag, does that mean the Paris agreement is settled?

Not at all – the other key question, apart from emissions reductions, is finance. Poorer countries want the rich world to provide them with financial help that will enable them to invest in clean technology to cut their greenhouse gas emissions, and to adapt their infrastructure to the likely damage from climate change. This is a hugely contentious issue.

At Copenhagen, where the finance part of the deal was only sorted out at the very last minute, rich countries agreed to supply $30bn ($20bn) of “fast-start” financial assistance to the poor nations and they said that by 2020, financial flows of at least $100bn a year would be provided.

As a cornerstone of any Paris agreement, poor countries want assurances that this pledge will be met that has now been given, in several forms; the OECD issued a report in October showing that two thirds of the finance required is already being supplied; and a report by the World Resources Institute showed that the remainder can be made up by increased finance from the World Bank and other development banks, and from the private sector. The World Bank and several governments have already committed to upping their financial assistance, meaning that a clear path towards the 2020 target can now be discerned.

There is more, however poor nations also want a similar provision in place beyond 2020, but there is strong disagreement over how this should be done. Some want all the money to come from rich country governments, but those governments are adamant that they will not provide such funding solely from the public purse. They want international development banks, such as the World Bank, to play a role, and they want most of the funding to come from the private sector.

An agreement on this is still possible, but it will be one of the main obstacles to a Paris deal.

UNDER DEVELOPED NATION and DEVELOPED NATION

Climate Change Summit: Developed Nations Resist India’s Stand

Countries are trying hard to reach a legally binding agreement in Paris meet at the COP21.
In a surprise move, the European Union, that had otherwise kept a low profile, made a joint declaration with the group of 79 African, Caribbean and Pacific (ACP) States stressing their “shared commitment” for a climate deal. The announcement is being seen by many as an attempt by developed nations to weaken the unity of G77+ China nations of which India is a part.

The [15]declaration excludes the two key issues that India has been stressing on a clear commitment from developed nations to stick to their promise to contribute to the Green Climate Fund (as part of their historical responsibility for the emissions that they added when they were developing) and also a sharing of technology by rich nations (to help developing nations move to clean energy).

Echoing the stand of the US and developed nations, the statement also says that the Paris agreement must include a transparency and accountability system to track progress of national commitments.
Countries like India have been firm on the position that it developed countries who should contribute to the Green Climate Fund. India’s position is that it will make contribution to its neighboring countries but under “south-south solidarity” and nothing should serve as an excuse for developed nations to avoid their own responsibility to add to the fund.

US and China

US and China have shifted their positions. In the past five years there have been significant shifts in position from the most influential countries, notably China and the US. Despite a divided Congress, President Obama has committed to reducing emissions, making climate change a defining issue of his second term. China has an ambitious strategy to grow its renewable sector, with tough new laws on air pollution and strong action on limiting coal consumption. Last year, the two countries signed an agreement to work together on carbon reduction in crucial sectors including transport and energy efficiency.

The US insists that all countries which are “in a position to” make contributions should do so. But, the US itself is finding it hard to find support at home to make the contributions that it had committed to. Many say it is, therefore, trying to shift the burden to the developing nations
The US is resisting entering a legally binding agreement. But such an agreement is the only way the rest of the world can make sure the developed nations act on their commitments.

 

 

Here is what India and the other developing nations had to compromise on:

[16]The original UN convention had a stronger language on developed world providing climate finance. Experts say current text is weaker. It also leaves room for confusion on what can be counted as climate funding – for example, developmental aid or loans can be counted as climate finance. Mr Javadekar, too, said the agreement could have been more ambitious as the actions of developed nations are “far below” than their historical responsibilities and fair shares. Most civil society experts say the dilution was made following tremendous pressure from US – which is facing issues with domestic politics and an umbrella group of developed nations.

Paris agreement says all parties including developing nations must take action to cut emissions. This means makes developing nations must take on additional obligations.

For developing countries, intellectual property rights barriers to transfer technology from rich countries were important. But the Paris text is more about cooperation in technology.

In terms of loss and damage, the text says these will not be seen in terms for liability and compensation, so developed countries will not have no real obligation.

This is what India and the developing nations achieved [17]Managed to put back the important principle of equity and “common but differentiated responsibilities” in text, which India has been pushing for. The US and developed nations wanted to dilute this plank. Though developed countries use fossil fuel coal and gas they wanted developing countries to cut emissions.

The big challenge met was ensuring the agreement established the idea of climate justice acknowledging that industrialized nations have been the major emitters since 1850.India also wanted a mention of sustainable lifestyle and consumption, which is there in the text.

 

 

 

 

 

 

 

CONCLUSION

The stage is set for all countries to move to a low carbon pathway with the Paris Agreement on climate change adopting a goal of “well below 2° C” for temperature rise, and instituting a regime of financing of developing economies to help make the transition. Nations are to pursue efforts to aim at the more difficult objective of pegging temperature rise under 1.5° C.

Under pinning the Agreement, which is scheduled to go into effect from 2020, is the system of voluntary pledges, or nationally determined contributions made by individual countries to peak their greenhouse gas emissions that are warming the atmosphere and changing the climate. The reference in the text for the need to achieve an equalisation between emission of Green House Gases (GHGs) and their removal by ‘sinks’ by the second half of the present century has been welcomed widely since it turns attention to renewable energy, and away from fossil fuels. Governments is now put words into actions, in particular by implementing policies that make effective progress on the mitigation pledges they have made. That is why the key message is to price carbon right and to do it now at the need of all level. We called this agreement is strong ambition, for remarkable partnerships, for mobilization of finance, and for implementation of national climate plans. Now the job becomes our shared responsibility. The Paris Agreement has its normative value at their global or international level. The agreement make people together to forge a deal that finally reflects the aspiration, and the seriousness, to preserve our planet for future generations. The result of this is an unequivocal signal to the business and financial communities, one that will drive real change. The Paris Agreement at international level  marks a tipping point. Going forward and the world has a shared vision that will lead inexorably to investors moving away from fossil fuels and towards a future powered by low carbon energy. Investors will encourage every country keen to build a sustainable economy to develop a long-term low-emissions development strategy, including carbon pricing schemes, so that investors know ambition levels over the short, medium- and long-term.

The diplomats have done their job very well. They points the Paris Agreement  to world in the right direction, and with sophistication and clarity.

 

It does not, however, ensure implementation, which necessarily remains the domain of politicians, businessmen, scientists, engineers, and civil society. Thus these were all the factor responsible to making the Paris Agreement to its normative value at international standard .The famous quote by Mahatma Gandhi  “The world is for everyone’s needs, but not for anyone’s greed.”

 

 

 

 

 

[1] Amity Law School, Centre-II, Amity University ,Noida (AUUP)

[2] “19th Session of the Conference of the Parties to the UNFCCC”. International Institute for Sustainable Development. Retrieved 20 February 2013.

[3] “Adoption of the Paris agreement—Proposal by the President—Draft decision -/CP.21” (PDF). UNFCCC. 2015-12-12. Archived from the original on 2015-12-12. Retrieved 2015-12-12.

[4] http://thinkprogress.org/climate/2015/12/14/3731715/paris-agreement-is-an-actual-agreement/

[5] http://time.com/4146764/paris-agreement-climate-cop-21/

[6] Intended Nationally Determined Contribution of the EU and its Member States, 6 March 2015

[7] “Issues and reasons behind the French offer to host the 21st Conference of the Parties on Climate Change 2015”. Ministry of Foreign Affairs. 22 May 2013. Retrieved 31 January 2014.

[8] “France confirmed as host of 2015 Climate Conference”. Ministry of Foreign Affairs. 22 November 2013. Retrieved 31 January 2014.

[9]http://www.theguardian.com/environment/2015/jun/02/everything-you-need-to-know-about-the-paris-climate summit-and-un-talks

 

[10] “World Mayors and Municipal Leaders Declaration on Climate Change” (PDF). Archive.iclei.org. Retrieved 15 November 2015.

 

[11] “Indigenous Peoples of Africa Co-ordinating Committee”. IPACC. Retrieved 15 November 2015.

[12] “Indigenous Peoples Seek Presence in Post-2015 Development Agenda | Inter Press Service”. Ipsnews.net. 4 September 2014. Retrieved 15 November 2015.

 

[13] Milman, Oliver (12 December 2015). “James Hansen, father of climate change awareness, calls Paris talks ‘a fraud'”. The Guardian (London, England). Retrieved 14 December 2015

[14] Birnie P, Boyle A and Redgwell C (2009). International Law and the Environment.

[15] “Issues and reasons behind the French offer to host the 21st Conference of the Parties on Climate Change 2015”. Ministry of Foreign Affairs. 22 May 2013. Retrieved 31 January 2014.

 

 

[16] http://www.theguardian.com/environment/2015/jun/02/everything-you-need-to-know-about-the-paris-climate-summit-and-un-talks

 

[17]http://www.ndtv.com/india-news/indias-star-shines-bright-in-global-gloom-imf-chief-christine-lagarde 1286388?ndtv_nextstory

 

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