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.
Currently, there is no forum in which to initiate a viable international climate change lawsuit against the United States. The U.S. withdrew from the compulsory jurisdiction of the International Court of Justice (ICJ) in 1985 and is not as yet a party to the United Nations Convention on the Law of the Sea (UNCLOS).2
However, if the United States accedes to UNCLOS, thereby reversing a 30-year policy of remaining outside of the convention, the U.S. would be exposed to climate change lawsuits and other environmental actions brought against it by other members of the convention. The eco- nomic and political ramifications of such lawsuits would be dire.
This paper demonstrates that accession to UNCLOS would unnecessarily expose the United States to baseless and opportunistic international lawsuits, including suits based on the theory of anthropogenic climate change.
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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