Accession to U.N. Convention on the Law of the Sea Would Expose the U.S. to Baseless Climate Change Lawsuits
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.
The United States and other nations are free to resolve their maritime disputes in a number of ways outside of UNCLOS, including bilateral negotiations, fact-finding and conciliation commissions, and proceedings at the Permanent Court of Arbitration, to name a few.8 The United States may also submit a dispute by special agreement to the International Court of Justice, as it did in 1981 to resolve a dispute with Canada over maritime boundaries in the Gulf of Maine.
Bilateral negotiations, special agreements, arbitration, and conciliation commissions have in com- mon the fact that they are voluntary means of resolving maritime disputes. The United States may choose to engage in such voluntary pro- ceedings depending on whether the predicted outcome would advance its national interests. However, if the U.S. accedes to UNCLOS, it will be compelled to submit itself to legally binding dispute resolution whenever another member state brings a lawsuit against it.
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
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
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
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.
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.