Ratification of UNCLOS would expose U.S. to broad liability for environmental damage in international courts
By ratifying UNCLOS, the U.S. would be exposed to climate change lawsuits and other environmental actions brought against it by other members of the convention and the economic and political ramifications of such lawsuits could be dire.
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A claimant in a climate change lawsuit against the United States would face several legal and evidentiary challenges in proving its case in an UNCLOS tribunal, including jurisdictional hurdles, causation issues, and the question of equitable apportionment of damages.126 Nevertheless, regardless of whether the U.S. might ultimately prevail in such a case, acceding to the convention is fraught with political danger. Advocates of international climate change lawsuits see them as an acceptable way to achieve their environmental ends, including U.S. capitulation to a comprehensive climate change treaty:
Litigation or the threat thereof would emphasise the urgency of the need to agree [to] binding commitments on climate change and would put additional pres- sure on the negotiations process. Negotiators may feel more of a responsibility vis-à-vis the international community and have an additional lever in relation to their national governments. A high-profile court case would also engage a variety of actors in the debate and provide new momentum to find consensual solutions inside and outside the UNFCCC talks ... . Inter-State climate change litigation may help to create the political pressure and third-party guidance required to re-invigorate the international negotiations, within or outside the UNFCCC.127
One law professor believes that “litigation will very likely play a role” in determining who will bear the costs of climate change and singles out the United States for special treatment, stating that “litigation efforts need to be primarily focused on the United States as the major hindrance to beginning the remedial process” (i.e., by failing to ratify the Kyoto Protocol).128 Other proponents of the theory of anthropogenic climate change understand that there are precedents for using international courts to achieve purposes other than legal redress. For instance, the World Trade Organization “has similarly been strategically employed by governments to influence negotiations and clarify State obligations.”129
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If the United States received an adverse judgment in an UNCLOS climate change lawsuit, the tribunal could order remedies similar to those imposed by the Trail Smelter tribunal—a regime of regulations, compli- ance measures, and even reparations. In anthropogenic climate change parlance, such a regime would be akin to mitigation measures (i.e., actions to reduce the level of U.S. GHG emissions).
A comprehensive GHG mitigation regime imposed on the U.S. would seriously affect the American econ- omy because carbon emissions and other GHG are produced throughout the United States by several signifi- cant sectors of the economy, includ- ing the electricity generation, transportation, industrial, residential, and commercial sectors. Like the “cap-and-trade” regulations that have been debated in Congress, the imposition of international Trail Smelter– style regulations on every U.S. power plant, refinery, automobile, chemical plant, and landfill would harm the U.S. economy.118
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The domestic enforceability of UNCLOS tribunal judgments was confirmed by U.S. Supreme Court Justice John Paul Stevens in Medellin v. Texas, a landmark case in 2008.27 In Medellin, Justice Stevens, writing in a concurring opinion, cited Article 39 of Annex VI for the proposition that UNCLOS members—presum- ably including the United States if it accedes to the convention—are obligated to comply with the judgments of the convention’s tribunals. The Medellin case concerned whether the ICJ’s judgment in 2003 against the United States in the Case Concerning Avena and Other Mexican Nationals (the Avena case) is domestically enforceable. Justice Stevens concluded that the relevant treaties in the Avena case—the U.N. Charter and the Vienna Convention on Consular Relations (VCCR)—did not require the Supreme Court to enforce the ICJ’s ruling. Justice Stevens contrasted the permissive language of the U.N. Charter and the VCCR with the explicit language of UNCLOS and concluded that the convention would indeed oblige the Supreme Court to enforce the judgments of UNCLOS tribunals within the United States.28
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In sum, by acceding to UNCLOS the United States would unnecessar- ily expose itself to baseless environmental lawsuits, including a claim that its GHG emissions have caused harm to other nations. Because of its membership in the convention, the U.S. could be compelled to appear before a tribunal to defend itself in any such lawsuit. International courts and tribunals, including those created by UNCLOS, have not hesitated to assert jurisdiction and pass judgment in controversial social, political, and environmental lawsuits. The judgment of an UNCLOS tribunal in a climate change lawsuit would be final, unappealable, and enforceable in the United States.
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In sum, the United States is undoubtedly at the top of the list of potential defendants against climate change suits brought by environmental lawyers and academics, native peoples such as the Inuit, and UNCLOS states parties such as Tuvalu. Moreover, UNCLOS’s compulsory dispute resolution tribunals are regularly cited as viable international forums for bringing an international climate change action against the United States.101
Thus far, the United States has denied potential climate change claimants their day in international court by withdrawing from compulsory ICJ jurisdiction and by refusing to accede to UNCLOS. Clearly, accession to the convention would open the door to these litigants as well as to their advocates in the international academic, environmental, and nongovernmental organization communities.
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The environment is another issue of interest. University of Miami law professor Bernard H. Oxman, a long-time LOST advocate, argues that, “The Convention is one of the rare treaties to articulate a basic environmental norm in unqualified form.”19 There is nothing intrinsically wrong with articulating environmental norms—if they are justified, are qualified to account for competing interests, and are in accordance with each participant country’s governing institutions. But that is unlikely to emerge from a highly political process like the LOST negotiations.
Indeed, the Treaty risks endorsing some very bad environmental policy approaches. For example, South African Ambassador Sandile Nogxina, speaking on behalf of the African Group to celebrate the 10th anniversary of the LOST system, declared that, “The concept of sustainable development is a principle which the African group embraces.”20 At the same ceremony, South Korea’s Jung Hai-ung, representing the Asian group, opined “that the precautionary approach set out in Agenda 21, chapter 17, should be applied to the seabed activities.”21 The Netherlands formally pushed the Council “to apply a precautionary approach to seabed exploration.”22
All of these terms incorporate much larger political agendas. Biasing the process against development globally would have profound impacts on all peoples, and especially those in the poorest lands who most need the results of economic growth, international investment and trade, and globalization. Serious application of the precautionary principle would halt economic development, since it is impossible to prove a negative— that a new process or technology involves no risk. Trade-offs are inherent to any economic endeavor, with a thoughtful balancing of potential costs and benefits.
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Finally, the LOST may encourage the UN to venture into unexplored territory. The UN’s Division for Ocean Affairs and the Law of the Sea boldly announced that the LOST “is not . . . a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”69 If international jurists exhibit the same creativity as shown by some judges domes- tically, the LOST might prove to be dangerously dynamic.
In 2001 Douglas Stevenson, representing the Seamen’s Church Institute, an advocacy group for mariners, complained about “trends that erode traditional seafarers’ rights,” such as that to medical care, as well as to protection from abandonment by insolvent and irresponsible ship owners. Stevenson explained, “When mariners’ health, safety or welfare is in jeopardy, we look to the United Nations Convention on the Law of the Sea to protect them.”70 There are obviously real and tragic abuses of seamen, but what the “international community” should do as part of the LOST about such issues is not obvious. Washington might find itself facing unexpected obligations if it signs on.
Although LOST focuses on the high seas, it includes language covering domestic pollution. The provisions are surprisingly expansive, or “stunning in their breadth and depth,” as Steven Groves of the Heritage Foundation observed in a new study. A decade ago Ireland relied on LOST to sue Great Britain over the commissioning of a mixed oxide plant because of the latter’s alleged impact on the Irish Sea. The plant had been approved not only by Britain, but also the European Union (EU). Ireland dropped the suit, but only because the EU sued Ireland for not filing its case in the European Court of Justice.
Many environmentalists believe that LOST could be used against the U.S. in the same way. A few years ago an environmental activist mistakenly sent me an email after our debate on the treaty. He acknowledged that it might be difficult to convince Americans that the treaty would not similarly bind America when the World Wildlife Federation and Citizens for Global Solutions were promoting LOST by claiming that the convention would stop Russia from polluting the Arctic. He worried that this inconsistency suggested that the treaty was in fact “some kind of green Trojan Horse.”
It is. Groves noted that “Some environmental activist groups have already demonstrated a propensity for supporting, participating in, and in some cases actually filing climate change lawsuits against U.S. targets, as well as taking other legal actions relating to the marine environment in U.S. courts and international forums.”
Two decades ago environmental lawyers Durwood Zaelke and James Cameron wrote about the possibility of low-lying islands suing industrialized states over rising sea levels. Unfortunately, the prospect of international lawsuits is more than the gleam of an academic’s eye.
The Pacific island state of Palau announced last September that it would seek a ruling from the International Court of Justice barring nations from allowing emissions from their territory to cause climate change affecting other countries. Palau indicated that it would rely on LOST as well as the Kyoto Protocol. A decade ago Fiji, Kiribati, Nauru, and Tuvalu, also Pacific islands, threatened to sue under LOST, though as yet have not filed. Groves suggested that mountainous nations could similarly sue over shrinking glaciers. One could imagine other states claiming damages based on drought, desertification, or other alleged consequences of global warming.
The issue of climate change is extraordinarily complex. The best evidence is that the planet is warming, but the role of human activity and impact on the environment are far less certain and remain highly controverted. Nor is it possible to demonstrate causation between any particular emission and any particular consequence. There may be good political reasons to mitigate the distress of island countries, but such matters belong in international negotiations, not international courts.
However, as Groves warned, acceding to the treaty “would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land-based source or even through the atmosphere. Regardless of the case’s merits, the U.S. would be forced to defend itself against every such lawsuit at great expense.”
Litigation could occur in several venues: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, and a “special” arbitral tribunal. There would be no appeals and all suffer from political elements which would interfere with the delivery of genuine “justice.” Indeed, noted Groves, the U.S. “has suffered adverse judgments in high-profile international lawsuits in the past.”
LOST would reinforce the litigation danger by creating obligations directly enforceable by U.S. courts. Annex III, Article 21(2) of the treaty states that tribunal decisions “shall be enforceable in the territory of each State Party.” In a 2008 case Supreme Court Justice John Paul Stevens contrasted another treaty with LOST, which, he wrote, did “incorporate international judgments into international law.” As a result, U.S. judges would become international enforcers.
The United States should be held liable for violation of the United Nations Convention on the Law of the Sea over the destruction of the Tubbataha Reef, Senator Miriam Defensor-Santiago said on Friday.
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Doug Bandow of the Cato Institute warns of the dangers of litigation if the United States joins the U.N. Convention on the Law of the Sea, more commonly known as the Law of the Sea Treaty (LOST). [ More ]