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Bickering over the science of climate change deflects the urgent need to arrive at some compromise between the willingness of states to address it and the needs of the global environment, argues Klaus Bosselmann.
Earlier last week, ODT correspondent Tom Visser took issue with Prof Keith Hunter's criticism of climate change sceptics (ODT 28.12.09).
Mr Visser cites a Dr Brekke of Norway that anyone who claims that the debate is over has a fundamentally unscientific approach (ODT 6.1.10).
I am sure that neither Prof Hunter nor any of the 95% of scientists who tell us that anthropogenic climate change is real, imminent and dangerous would suggest that the debate is over.
By definition, scientific debate can never be over.
What matters is purely the degree of scientific evidence that justifies or necessitates political action.
The 5% or so of sceptics are certainly not being silenced, nor should they ever.
The global debate about climate change, however, is less about scientific than political uncertainties.
Countries agree that a temperature increase of more than 2degC must be avoided for the fear of reaching tipping-point.
They disagree on what to do about it, but have accepted the science behind this figure.
This is of great importance, yet reflects little more than the precautionary principle.
Taking action in the light of remaining uncertainty is the core idea of the precautionary principle and a legal requirement under Article 3.3 of the 1992 Framework Convention on Climate Change, in force since 1994.
Ever since, the 194 signatory states, including the US and China, are legally required to take action towards reducing greenhouse gases - no Kyoto Protocol or Copenhagen Accord needed here.
What should concern us as citizens is that only a handful of countries (all within the EU) have actually done anything.
New Zealanders should be particularly concerned, as ours is among the worst-performing countries, both per capita and with respect to emission increases, now standing at 27% against 1990 levels.
The basic climate change problem is this: New Zealand, like all signatory countries, has assumed discretion in its political (in-)action, where no such discretion exists.
Legally, political discretion follows from the principle of state sovereignty, but is being diminished in accordance with international obligations.
From an environmental perspective, any discretion on knowingly allowing climate change is of course absurd.
But some compromise between the willingness of states and the needs of the global environment has to be found.
This is the challenge for international environmental law, and it has in fact defined such a compromise back in 1992.
It should not be forgotten that countries (except for some oil-producing Arabian countries) have never denied their legal obligation to reduce greenhouse gases.
What the world is suffering from is not a lack of science or law, but a lack of environmental urgency.
Delay and denial have been endemic in the history of environmental law.
Governments favour short-term fixes over long-term solutions as only the former will get them votes.
And they favour political compromises to not offend their voters.
This simple rationale lies behind the failure of environmental law, nationally as well as internationally.
There is no general rule that says "do not pollute the environment", only "do not pollute too much and too often".
We would all protest against a rule to "not beat your child too much and too often".
Yet, lawmakers look for some compromise between socioeconomic development and environmental integrity.
As a consequence, environmental laws offer discretion in every single operating clause.
In the face of the literally life-threatening environmental crisis, such discretion is naive at best and suicidal at worst.
So what to do and where to start? Bickering with the science of climate change won't help.
The knee-jerk Copenhagen Accord is more worrying.
Ambitious targets and timelines are urgently needed, but even if they emerge in legally binding form, we cannot be sure.
The crux of international law is that states are locked into a logic of nationally motivated environmental exploitation.
There is as yet neither an obligation to protect the global commons (such as the atmosphere), nor is there a recognition that states are guardians of their territory.
Ecological realities are almost entirely ignored.
No Government can change the laws of nature, but it can design human laws to match.
The biosphere, like oceans, water and land, and the atmosphere are commons that belong to all living beings, not to states, companies or individuals.
In legal terms, we need environmental laws that limit user rights with non-negotiable environmental responsibilities.
Our best hope is a strong sense of citizenship that accepts some imperatives.
Use the water, but only within the limits of hydrological cycles.
Use the land, but only within the limits of its integrity. Use the soils, but preserve their fertility.
Use the air, but do not imbalance its chemistry.
And tell your Government to draft our laws accordingly. The good news is that any Government would listen, if the call is loud enough. It wants, after all, nothing more than to stay in power.
Prof Klaus Bosselmann is director of the New Zealand Centre for Environmental Law at the University of Auckland. He has been involved in the politics of climate change since the late 1980s, as an adviser to the German government, as a consultant to the UN and as an observer of the recent climate meetings in Barcelona and Copenhagen.