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Daniel Bodansky (II) – 1993 – The Convention in place – A Commentary

E-516b

With reference to E-516a, we continue with Bodansky thoroughly elaborated paper on FCCC published in Yale Journal of International Law 1993[1]. Before going to the Commentary concerning definitions, another ‘problem’ with the use of clear terminology can be observed and shall briefly be mentioned. The section ‘Background’ has the following subtitles

It is to note that the headlines refer twice to ‘climate’, (see: climate issue and climate convention), although the FCCC does not mentions one of these terms. A legal assessment should put great care on terminology. This can be also observed when it comes to ‘Global Warming’. The term is not defined by the Convention, and shall indicate a gradual increase in the earth's surface temperature. But when Bodansky is presenting it as follows: “B. Global Warming: ‘The Evolution of an Awareness’. Awareness of the climate change issue developed rapidly over the past decade”, it is not helpful. Temperatures can be measured in degree and subsequently statistically assessed. ‘Climate’ may be partly explained on temperature statistics, but as such they are ‘unreal’, remaining ‘temperature statistics’. Temperature rise (warming) can be a part of ‘climate change’ (a change of average weather), but ‘global warming’ is not ‘climate change’, respectively a “change of statistical description”. The problem is that ‘global warming’ may not be completely wrong, but it is an empty expression.

Bodansky presents his Commentary (p.492) in four parts, whereby here only the part (1) is of interest: “ the introductory provisions, setting forth the basic definitions, principles, and objectives of the Convention”.

With regard to the set of definitions (Article 1), he mentions that the terms defined represent only a fraction of the terms proposed for definitions during the negotiations (p. 496). He explains (Footnote 271) that the definitions, initially drafted during informal discussion among scientists at INC4 (December 1991), although referring to material from the 5 th session[2] in February 1992, and that the set of definition had been ‘finalized at INC5 by an informal group chaired by Poland’. It is worth to note that the informal discussion had been “among scientists”.

Bodansky only regards necessary to mention that:

It needs to be noted that a legal assessment should have realized that defining ‘climate change’ without defining ‘climate’ is questionable and not professional. If a reply would say that WMO usually defines climate as average weather, a lawyer should immediately ask: how is weather defined? That this is not about quibbling but due to the fact that international legislation should be clear and ‘understandable’ as a matter of sense and fairness, but it is also required according international law. Bodansky points to the Vienna Convention on the Law of Treaties, 1969, (Footnote 254), according which international agreements are to be interpreted in accordance with the ordinary meaning of their terms, in their context, and in light of their object and purpose.

Bodansky, like many other authors, pays little if any attention to preliminary questions. This is not only evident with regard to the used terminology, but culminate when no objection is raised that the conventional objectives[3] (Article 2) could be used to name the convention a Framework Convention on Climate Change. In the scenario of ‘average weather change over a longer period of time’ the conventional goal is grossly misrepresenting the global natural common that make, run, sustain, and change the weather conditions over space and time.

Footnotes

[1] Daniel Bodansky, 1993, “The United Nations Framework Convention on Climate Change: A Commentary”, Yale Journal of International Law 1993, p. 453 – 554.

[2] A/AC.237/Misc.1/Add.16 Preparation of a Framework Convention on Climate Change. Set of informal papers provided by delegations, related to the preparation of a Framework Convention on Climate Change. Note by the secretariat. Addendum 16.05/02/1992

[3] ARTICLE 2
The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

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