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Daniel Bodansky (III) – 2004 – On how the FCCC emerged

E-516c

The Climate Change Convention has been of interest to Prof. D. Bodansky from the very start of the negotiation process in 1991 (see E-516a) and soon after completion of the Convention (see E-516b). More recently, in 2001, he presented two papers in the book “International Relations and Global Climate Change” [1], which give a fair overview of the matter, albeit completely uncritical. Presumably the protection of global natural commons may need more. To demonstrate that the legal profession is well advised not to take too much for granted what is said to be climatic science, some few points from the recent papers will be picked up for questioning. They are chosen selective to focus primarily on terminology, and cannot be regarded as representative.

In the part that deals with the “Key Elements” of the Convention (p.204) the author does not even mentions the definitions of Article 1, demonstrating that he did not realised that there is no definition of ‘climate’, and that also the subsequent given meanings of ‘climate change’ and ‘climate variability’ are ‘empty’ phrases, respectively meaningless as scientific terms. Lawyers do not necessarily need in-depth technical knowledge, but they should be able to realise that a term ‘climate change’ needs a definition of ‘climate’ in the first place.

The need for clarity becomes obvious if it comes to Article 2 and no question is raised. At page 207 one can read the sentence: “The FCCC defines the climate change regime’s “ultimate objective” as the stabilization of atmospheric concentration of greenhouse gases at safe level”..(…preventing interference with the climate system). Nothing of this sentence is useful as a legal term. Here only one aspect shall be mentioned: If prevention of climate change is the issue, why does Article 2 not referring to this term, but instead mentions ‘climate system’, which is quite obvious a meaningless phraseology. One might attempt to ask whether the authors of this definition intentionally made the text as ‘confusing as possible’. Lawyers should be able to scrutinize such text and demand clarification.

In this respect it seems necessary to ask whether the United Nations and the legal expertise of this body has been sufficiently working, when the 1988 General Assembly characterized the climate as “the common concern of mankind”[2]. The best one can make out it is to say that the UN Resolution means: -the statistical weather is the common concern of mankind-; provided one can define ‘weather’ scientifically meaningful, respectively ‘average weather’.

Continuing with the Convention principles (Article 3) would hardly improve understanding. Bodansky identifies four principles, namely:

• First: The ‘common concern of mankind’, which he regards as weaker than the ‘common heritage’ concept in the 1982 UN Convention on the Law of the Sea.
• ‘Whatisclimate’ REMARK: Such a ‘comparison’ is unacceptable, because the oceans are the largest natural system on earth, it is a physical and real enity, it is the principle source of life and of the weather, while ‘climate’ is nothing in comparison, but merely a statistical tool comprise of selective meteorological data.
• Second: States should protect the climate (REMARK: protecting the atmosphere may make sense, protecting climate not).
• Third: action to combat climate change should not await scientific certainty. (QUESTION: Should the correct approach not be to: ‘combat atmospheric change and ‘prevention of dangerous anthropogenic interference with the weather system’).
• Fourth: States different responsibilities (developed – less developed).

Concerning the previous mentioned aspects, Bodansky paper on the CC-Regime’s History may provide a glimpse how and why this may have happen as it happened – if one is reading it with some imagination. Of particular interest could be the text “Agenda Setting, 1985-1988” (page 26) from which few excerpts are give:

• Whether improved scientific knowledge would have been enough to spur political action is doubtful, particularly given the scientific uncertainties about climate change that persist even now. The growth of scientific knowledge was significant in laying a foundation for the development of public and political interest, but three additional factors acted as the direct catalyst for governmental action.
• First,
• a small group of environmentally oriented Western scientists worked to promote the climate change issue on the international agenda.
• As major figures in the international science establishment, with close ties to WMO and UNEP, these scientists acted as “knowledge broker” and entrepreneurs,
• Helping to translate and publicize the emerging scientific knowledge about the greenhouse effect through workshops and conferences, articles and in nonspecialist journals such as Scientific American, and personal contacts with policy makers.
• Second: the latter half of the 1980s was a period of increased concern about global environmental issues generally-
• Finally, the North American heat wave and drought of the summer of 1988…etc.

In his Conclusion (page 218) Bodansky confirms his understanding (which is absolutely prevailing in the scientific community and legal literature) that dealing with ‘climate change’ as target by the FCCC, and ‘stabilisation of greenhouse gas emissions’, and now more strongly specified by the Kyoto Protocol, is a sound approach.

It would be better to speak in clear words and terms. For example: Men need to protect the natural commons and prevent anthropogenic interference in the atmospheric or oceanic system, which may have an effect on short or long term weather conditions. The word ‘climate’ is not needed and neither helpful.

Footnotes

[1] Daniel Bodansky, in: Urs Lauterbacher and Detlef F. Sprinz (eds), International Relations and Global Climate Change, London 2001,

• “The History of the Global Climate Change Regime”, p. 23 – 40, and
• “International Law and the Design of a Climate Change Regime”, p. 201 – 219.

[2] Bodansky, op. cit, page 28, Fn. 7, “Protection of Global Climate for Present and Future Generations of Mankind, UN General Assembly Res. 43/53 (1988).

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