States would not have jurisdiction under UNCLOS to bring climate change claims
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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.
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.