The Climate Change issue is a   Law of the Sea  issue! Below: Extract from a 52 p. long paper - in full HERE

Bernaerts’ Guide published: 1988 Fairplay/UK, 2005 (reprint) by Trafford Publishing, 1663 Liberty Drive Suite 200 Bloomington, IN 47403, Canada.   329 pages, ISBN 1-4120-7665-x; Available via online-contributer

 IV. The 1982 Law of the Sea Convention - the Climate Treaty
1. Introduction - No Climate without the Ocean 

A legislature cannot provide required legal regulation until the matter to be regulated has been clearly defined. The word climate alone does not satisfy this condition; climate change is not a specific idea if climate in general has not previously been defined. Apparently, not even the authors and advisors of the Climate Convention of 1992 dared to set down the traditional definition of climate, according to which climate is the average weather over a long period of time, in an 

Water is the Driver of Nature

international treaty. The path taken instead, that of defining and using the concept of "climate system" (Art. 1, Para, c) is little help in describing the concrete situation. In place of this concept, it was suggested above that climate be defined as the continuation of the oceans by other means or to select a definition which shows where the main points or essential causes of climatic conditions originate. These criteria do not result from weather statistics. Instead, the climatic components in the global natural system are to be found in the heat storage capacity of water, its present condition (e.g., warmth, salt content, density) and the differences in distribution around the globe. This automatically puts the oceans at the focal point and is therefore an essential component for defining the situation in terms relevant for the climate.

A current problem solvable with UNCLOS? The ocean is the driver of Climate! See Essay from 2008: „Who Rules the Climate”?

It is not necessary to determine whether the situation as described here -protection of the oceans as protection of the climate - will need modification in the future. Whatever other factors may be considered as relevant causes of climate, they will not be decisive of themselves for the climatic events, but will act primarily on the water masses, which will then in a transformation process “determine” how these components affect the condition and the dynamics of the atmosphere. Further details to be taken into account in the determining the situational description relevant for the climate can be seen in the discussion above.

2. Basic Factors Involving the 1982 Law of the Sea Treaty (113)  

The 1982 Law of the Sea Treaty is the first international agreement which has the qualities of a global constitution. With its more than twenty regulatory areas and more than four hundred individual statues, it includes all aspects relevant to the oceans which were recognized as such by the Third UN Law of the Sea Conference, which negotiated the treaty between 1973 and 1982. No one thought of the climate. Nevertheless, the following sections stand out in importance:

- Part XII, Protection and Preservation of the Marine Environment (Art. 192-237)

- Part XIII, Scientific Marine Research (Art. 238-265)

- Part XIV, Development and Transfer of Marine Technology (Art. 266-278)

- Part XV, Settlement of Disputes (Art. 279-299)

While the sections dealing with the marine environment and the settlement of disputes are categorically of obligatory nature, the parts concerning research and transfer of technology should be regarded as guidelines in the nature of a program.

In comparison with other international treaties (with the exception of the UN Charer of 1945), the 1982 Treaty enjoys particular significance which is not discernable from the text alone. Due to the extent of the regulatory spectrum and its conceptual claim as being "all-encompassing," the Party States are prevented from choosing the regulations which they like and ignoring the parts less pleasant for them ("pick and choose"). This gives the 1982 Treaty a dynamic quality which other treaties dealing with this problem do not have. Thus states which wish to make claims on the basis of the regulations of the Convention regarding the rights of coastal states (e.g., fishing rights, economic zone) or the right of passage for trade ships must also accept the obligations to protect the marine environment and assume responsibility for marine research, transfer of technology, and - last, but not least - accept the judgments of the maritime judiciary.

The new law of the sea is noteworthy for a fundamental change in comparison with previous international treaties. The leading principles are not the rights of the parties, but the obligations for marine environmental protection (114). If it were only a question of the ratification of Part XII, then the chances for entry into force in the near future would be poor indeed. The disinclination of the states to accept the obligations of a strong international law and a loss of their cherished sovereignty as well as modification of national state thought would be too great. There is even less reason to suppose that the Rio Conference could have agreed to anything even remotely comparable. The Stockholm Environmental Confer­ence was twenty years past in 1992.

Approximately 80% of the  solar energy intercepted by our planet (173 petawatt)  enters the atmosphere over the oceans. (J.D. Woods, 1984)

3. The Major Regulations Relevant for the Climate in the Individual Sections 

The following discussion concentrates on pointing out a number of aspects of the importance of the Law of the Sea Treaty for the climate and does not claim to be complete or a detailed analysis.

a) Regulations Concerning Marine Environmental Protection (115)  

Part XII is in itself a complete constitution for global environmental protection within the Law of the Sea Treaty. It is in this respect the best conceived and, in its magnitude and coverage, the most extensive law for global environmental protection. It includes all areas which could be held accountable for marine pollution, the most detailed being the section af­fecting trade shipping, for which a number of exact regulations are proposed. Otherwise, the treaty limits itself to basic principles which provide a catalogue of obligations for the party states. This covers the following causes for marine pollution; from the land, by activities on the sea bed, by dumping, by ships, and from or through the atmosphere.

With a certain amount of generalization, it can be said that the obligations for the party states can be divided into five groups:

- Guiding Principles

- Obligation to adopt and implement laws

- Special regulatory areas

- Individual regulations (particularly affecting shipping)

If these five groups are compared with other international treaties, the legal quality of the first three groups is considerably higher than the usual standard. Particularly noteworthy is the obligation of the states to adopt laws under the guiding principle of protecting and preserving the seas. The standard comparable to other treaties is found first at the level of the special and individual regulations. One of these is the definition of the "pollution of the marine environment" found in Article 1, Item 4 of the 1982 Law of the Sea Treaty. According to this definition, pollution means, among other things, "the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, . . . and reduction of amenities" (116). In comparison, the Ozone Layer Conventions formulates "harmful effects" as "changes in the living and non-living environment, including climate changes, which have considerable harmful effects on human health or on the composition, resistance, and productivity of ecological systems or materials useful for humankind, whether in their natural state or influenced by human beings." This definition is confusing and does little to clarify the situation. In the Air Pollution Treaty, "air pollution" means (excerpt): "the direct or indirect introduction of substances or energy by human beings into the atmosphere which could result in harmful effects such as a hazard to human health, damage to living resources and ecological systems or property, and a reduction of the amenities of the environment."

The concept of the law of the sea is characterized by the fact that, aside from the comparable level with other international treaties, additional guidelines and principles are set down, such as the regulation by which the party states are obligated to adopt, implement, and adapt to changing situations laws and regulations in all areas affecting the environment. The following example should make this clear.

The Montreal Protocol of 1987 is often quoted as a sterling example of the ability of international politics to take charge of a problem even in the absence of particular obligations to do so (117). It is relatively certain that damage to the ozone layer can also have a major effect on marine plank­ ton (118). Art. 212 of the Law of the Sea Treaty determines that the states shall adopt laws and regulations to prevent, reduce, and control pollution of the marine environment, which includes hindrance to marine activities, including fishing and other legitimate uses of the sea, from or through the atmosphere. If not interpreted too narrowly, the agreements reached in Montreal can be regarded as an obligation as provided by Article 212.

The overriding principles of Art. 212, particularly the guideline of the environment chapter already mention, whereby the states are obligated to protect and preserve the marine environment, means that the states cannot rely on a narrow interpretation. Since, according to the assumptions and definition given above, the climate is the continuation of the seas by other means, this guideline can also be read so that it means: The states are obligated to preserve and protect the climate.

From the viewpoint of this seaman and lawyer, it cannot be emphasized enough how important it is to establish first exact knowledge of the true situation. Without this knowledge, all measures will fall short of the goal, remain helpless, and involve the danger of even greater damage if the wrong route is taken. The situation for the protection of the climate can be clearly, definitely, and briefly stated with the words: "the ocean." Considering the importance of this principle, the lawyer cannot do more than underline this sentence several times in recognition of its significance and point out that it is comparable with Article 1 of the Basic Law of the Federal Republic of Germany, which provides that the dignity of a human being is inviolable. This sentence stands at the head of several thousand pages of laws and regulations, and every one of these is to be interpreted and implemented in the light of the guiding principle. The guiding principle for the protection of the marine environment cannot yet claim to preside over thousands of pages of laws, regulations, and standards. This could possibly have been different even today if science had long ago recognized and expressed the fact that the climate can be understood and protected only if the oceans are understood and steps taken to preserve their condition.

b) Scientific Marine Research (119)                                                           ABOUT the AUTHOR

CONTINUE READING → → →                        Full text ca. 52 pages → → →