U.S. would not be exposing itself to liability for environmental damage in international courts by ratifying UNCLOS
Opponents argue that UNCLOS's provisions calling for states to reduce pollution through "best practicable means" could be used as a "backdoor" to force environmental treaties on the U.S. However, legal scholars and State Department officials have concluded that the convention only binds the United States to act in accordance with its own laws or appropriately ratified international agreements and cannot be used as a “back door” to compel enforcement of international agreements the Senate has not ratified. Additionally, the use of this mechanism is unlikely since the United States already complies with or exceeds the environmental standards set out in UNCLOS. The greater risk to the U.S. from lawsuits would come if the United States were to try to claim the resources on its extended continental shelf or on the deep seabed without becoming party to the Law of the Sea Convention.
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Can we then bring a climate change case within the dispute settlement proce- dures of Part XV of the LOSC? There are several problems, but jurisdiction is the most significant. Compulsory jurisdiction under Part XV of the LOSC is residual, in the sense that it defers to other options the parties may have cho- sen. A multilateral or bilateral agreement which provides for unilateral resort to a procedure with a binding outcome will exclude Part XV (Art. 282). The parties to a dispute may also agree ad hoc on some other peaceful means of settlement (Art. 281), and Part XV will then apply only if no settlement is reached and the parties have not agreed to exclude recourse to Part XV. The Convention further provides (Art. 284) that one party to a dispute may invite the other to agree to conciliation instead of any other Part XV procedures. These Articles of the Convention have so far proved to be the main obstacles to jurisdiction under Part XV. They pose the obvious question of how LOSC dispute settlement interacts with the dispute settlement provisions of the UNFCCC and the Kyoto Protocol.
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The relationship between the LOSC and climate change is not clear-cut, despite its obvious importance. Nevertheless, it is doubtful whether viewing climate change through the law of the marine environment greatly alters the overall picture. At best it provides a vehicle for compulsory dispute settlement notably lacking in the UNFCCC regime. Realistically, while the LOSC may import any newly agreed standards for the control of GHGs, it is not a substitute for further agreement within the UNFCCC framework.
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It is true that Articles 194 and Part XV, section 5 require states to take “all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source” and “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from” the land and atmosphere under their jurisdiction. Convention provisions also call for states to reduce pollution by “the best practicable means at their disposal and in accordance with their capabilities” and to “endeavor to establish global and regional rules” to prevent and control pollution. The majority opinion holds that these provisions of the convention only bind the United States to act in accordance with its own laws or appropriately ratified international agreements and cannot be used as a “back door” to compel enforcement of international agreements the Senate has not ratified.
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Fundamental differences on environmental policy have also been raised as objections to UNCLOS. Opponents see UNCLOS as a 'back door' for environmental activists to circumvent the U.S. Congress on international environmental law.70 Alternatively, accession might encourage foreign governments to bring action against the United States for environmental transgressions under the treaty‘s mandatory dispute resolution protocol.71
Use of the outlined dispute resolution process against the United States seems unlikely, though, since the United States already complies with or exceeds the environmental standards set out in UNCLOS.72 Further, provisions meant to protect the sustainability of the world‘s oceans are of global concern73 and benefit U.S. ocean-based industries.74 Even while it complies with the substance of the environmental provisions, the United States may be seen as a block to global environmental action until it actually ratifies UNCLOS.75
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Bill Eichbaum, vice president, Marine and Arctic Policy, at the World Wildlife Fund, said that such a scenario would be easier to grapple with as a member of the Convention.
“In terms of the environmental communities, the fact is today, under the Treaty, there is a regime for managing claims for deep seabed mining,” he said. “Countries and companies are pursuing those claims and going forward, and the United States is [not pres- ent] for managing that system.
“One of the things we believe is that the United States tends to be, as compared with most other countries, a pretty good environmental steward. And, so, if the United States was at the table helping to set the standards, helping to set the regulatory scheme, it would probably be, from an environmental perspective, better than it is likely to be with the United States not at the table,” he said.
“What many observers fail to understand about Law of the Sea is that the Convention already forms the basis of maritime law regardless of whether the United States is a party,” Lugar said in opening remarks at the May hearings. “International decisions related to resource exploitation, navigation rights and other mat- ters will be made in the context of the Convention, whether we join or not. Because of this, there is virtual unanimity in favor of this treaty among people who actually deal with oceans on a daily basis and invest their money in job-creating activities on the oceans.”
But some, like Sen. James Risch (R-ID), have posited that ratification would compromise our sovereignty by forcing the United States to abide by other treaties and impose overly restrictive environmental regulations. Insinuating that ratification of Law of the Sea could force the United States to join other international agreements on climate change or other environmental protections, Sen. Risch told Secretary of State Hillary Clinton at a Foreign Relations Committee hearing last month that the Law of the Sea treaty had “Kyoto written all over it,” a reference to the Kyoto Protocol, the international agreement linked to the U.N. Framework Convention on Climate Change. In response, Secretary Clinton cited the State Department legal team, saying, “there is nothing in the [Law of the Sea Convention] that commits the United States to implement any commitments on greenhouse gases under any regime, and it contains no obligation to implement any particular climate change policies.” While Sen. Risch and his allies would likely disagree with such claims, they cannot deny that diplomats such as Secretary Clinton are the very people who would establish the U.S. position. So whose opinion should carry more weight: protectionist fear mongers or actual diplomats and policymakers?
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Another concern, as voiced by U.S. Senator James Risch of Idaho, is that ratification of UNCLOS could be grounds for ratifying the Kyoto Protocol on Climate Change and all other conventions drafted by international bodies.26 Legal advisor John Bellinger in the first Bush administration commented that Section 222 of UNCLOS encompasses applicable international rules and standards, and if the United States does not ratify Kyoto or other conventions, these treaties are not applicable to the United States.27 This logic does not satisfy U.S. senators like Risch.28
Senator Mike Lee of Utah took this argument one step further. He hypothesized that the Assembly could take the position in the future that UNCLOS ties the United States into a climate change regime like the Kyoto Protocol. Secretary Clinton disagreed and stated that the United States had no obligation to accept anything decided by the Assembly on climate change. Should this thinking—that in ratifying UNCLOS, the United Nations can call for blanket application of other international laws—become an eventuality, the United States can simply withdraw from UNCLOS. This could be something agreed by all in advance of the ratification.
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Finally, as I have noted previously, those who are rightly concerned about international litigation against the United States should be much more concerned about subjecting the United States and U.S. businesses to international claims if the United States were to try to claim the resources on its extended continental shelf or on the deep seabed without becoming party to the Law of the Sea Convention. In my view, the risk of environmental litigation against the United States if it joins the Convention is low. The risk of international litigation against the United States if it were unilaterally to claim the resources on its extended continental shelf or on the deep seabed, without becoming party to the Convention, is much higher.