E - 516c - Daniel Bodansky (III) – 2004 – On how the FCCC emerged

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”, 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.

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E516b - Daniel Bodansky (II) – 1993 – The Convention in place – A Commentary

With reference to E-516a, we continue with Bodansky thoroughly elaborated paper on FCCC published in Yale Journal of International Law 1993. 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

1. Overview of the Problem
2. Global Warming: “Evolution of an Awareness”
1. The Development of Scientific Consensus
2. The Climate Issue Comes of Age
3. Early International Responses
3. Prologue to the Climate Convention

E- 520 - J. F. Pulvenis explains UNFCCC (1994): No real negotiations – Take it or leave it – Undeniable success.

Attempting to raise awareness that the UNFCCC is based on missing, or weak and misleading terminology, a brief look back on how the text of the Convention had been processed by the Intergovernmental Negotiating Committee (INC) may help to understand the legal document better. As the working period of the INC lasted practically one year, the number of papers elaborating this process is few. Among them is Jean- François Pulvenis’ paper from 1994, which can be divided in the negotiation process and a brief analysis of the convention. About the analysis it is only to mention that for Pluvenis the Convention begins with Article 2, with the objective of: “stabilization of greenhouse gas concentration in the atmosphere”, while he has paid not any attention to the principle definitions of the Convention according Article 1.

Therefore the following excerpts concern only the pre-adoption period, looking particularly at ‘critical’ negotiating stages, and are in so far selective

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