Dragging America into Court: Law of the Sea And Global Litigation
The author argues against U.S. ratification of UNCLOS, writing that the treaty’s most dangerous aspect is "creating a 'dynamic and evolving body of law.' America already is paying the price for far too much and too expansive litigation domestically. The U.S. Senate should say no to LOST."
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.