Revision of U.S. ratification of UNCLOS will not create a "backdoor" for environmental groups to force regulations on the U.S. from Sun, 06/01/2014 - 15:32
The terms of the Convention do not require Parties to comply with other international environmental treaties. With respect to land-based sources and pollution through the atmosphere, Part XII, Section 5 of the Convention requires Parties at most to adopt laws and regulations to prevent, reduce and control marine pollution, but in doing so, parties are required only to “tak[e] into account internationally agreed rules, standards and recommended practices and procedures.” This does not impose an obligation to comply with Kyoto or any other environmental treaty or standard, including treaties to which the U.S. is not a party.
Quicktabs: Arguments
The argument that Kyoto sets a standard for giving effect to LOSC Part XII is even less useful against developing States, or against developed States that are not parties to Kyoto. Developing States parties to Kyoto have no obliga- tion to reduce GHG emissions, even if, like India and China, they are large emitters of CO2. They will still be in compliance with Kyoto even if their CO2 emissions have greatly increased since 1997. They would not be in breach of LOSC Articles 192 and 194 if Kyoto defines the content of those Articles. With regard to the US, which is not a party to Kyoto or LOSC, it might be argued that it is bound by customary law to apply internationally agreed stan- dards on CO2 reductions in order to give effect to their obligation to protect the marine environment and other States from pollution. But the obvious dif- ficulty is that developed State parties to Kyoto have different percentage reduc- tions targets, and in some cases they are permitted to increase emissions. Taking Kyoto as a standard of diligence for non-parties simply begs the ques- tion—what standard and for whom?
UNCLOS cannot be understood as creating substantive causes of action or other individual legal rights that can be invoked in US courts.160 Internationally, there is no remedy open to individuals or groups, only to State parties to the Convention.161 Furthermore, even if a State were to successfully challenge US climate policies, by alleging that such policies were resulting in the pollution of the marine environment, the UNCLOS dispute resolution mechanisms outlined in article 297 would still be unavailable.162 Specifically, article 297(1)(c) sets out the exclusive basis upon which a State party may bring a dispute before an international tribunal for an act of alleged pollution to the marine environment.163 The aggrieved State, in stating its claim, must invoke a “specified” international rule applicable to the US. Because no provision of UNCLOS applies any additional substantive rules concerning climate change, it would, therefore, not be possible for a UNCLOS State party to rely on the dispute resolution procedures of article 297 for creating an adequate forum to challenge US climate change policies.164
UNCLOS is an oceans treaty, not a climate treaty.136 To claim that UNCLOS imposes a requirement on the United States to implement the Kyoto Protocol or any other international climate change laws is simply an untenable legal position. The substantive basis for a hypothetical international suit rests on an alleged violation of the duties enumerated in Part XII of UNCLOS, which concern the protection and preservation of the marine environment.137 Hypothetically, to have a viable cause of action against the United States for climate change issues under UNCLOS, a State would have to successfully argue the following: (1) that climate change exists within the meaning of “pollution of the marine environment” as defined in Article 1(4) of the Convention;138 (2) Part XII of UNCLOS–Protection and Preservation of the Marine Environment—applies to the issue of climate change; and (3) there is a causal link between a State's Greenhouse Gas (GHG) emissions and such pollution.139 Even after assuming all of the preceding claims possess the requisite showing, Part XII would still not require a party to adopt additional climate laws.
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.
One particularly noteworthy issue is how the Advice and Consent Resolution treats the domestic enforceability of the Seabed Dispute Chamber's rulings. The text of the Convention explicitly provides for the domestic enforceability of Chamber decisions. According to Article 39 of Annex VI of the Convention, "decisions ofthe Chamber shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought." Justice Stevens, who concurred with the majority in Medellin, cited Article 39 as an example of a treaty text that "necessarily incorporates international judgments into domestic law."85 Yet Article 39 is non-self-executing under the Senate's Advice and Consent Resolution, a position that is reinforced by another Resolution provision directed specifically at the decisions of this Chamber. This latter provision also calls for implementing legislation:
The United States declares, pursuant to [A]rticle 39 of Annex VI, that decisions of the Seabed Disputes Chamber shall be enforceable in the territory of the United States only in accordance with procedures established by implementing legislation and that such decisions shall be subject to such legal and factual review as is constitutionally required 86 and without precedential effect in any court of the United States.
Were an effort made to enforce a decision of the Seabed Disputes Chamber in U.S. court prior to implementing legislation, would the "clear" text of Article 39, which Justice Stevens believed points to its self-executing status, prevail? Or would a court defer to the Advice and Consent Resolution's call for implementing legislation? What obstacles might be posed by the "constitutionally required" reviews of Chamber decisions, to which the Resolution refers? U.S. courts regularly enforce the decisions of commercial arbitral tribunals, but in theory any international tribunal proceeding might lead to a result that presented constitutional due process problems and that hence could not be enforced in U.S. court.87 Those who dislike the prospect of domestic enforcement of Convention provisions also may, in light of Medellin, seek to add language to the Advice and Consent Resolution specifying that Chamber decisions do not create U.S. private rights or private causes of action. Thus, even if the "clear" language of the Convention text were to lead a court to conclude that Article 39 of Annex VI of the Convention was self-executing, such additional language in the Resolution might present another bar to the enforcement of chamber decisions in U.S. courts.
Environmental Obligations/Environmental Disputes. Some have argued that the Convention might obligate the U.S. to comply with international environmental agreements (such as the Kyoto Protocol) to which the U.S. is not a party, or subject the U.S. to mandatory dispute resolution for marine pollution (such as atmospheric pollution or pollution from land-based sources). I share the concerns of some critics of the Convention about the goals of some groups to embroil the U.S. in international litigation. As the State Department Legal Adviser during the Bush Administration, I witnessed first-hand the efforts of many groups hostile to U.S. counter-terrorism actions to wage “lawfare” against the United States. In my view, however, joining the Law of the Sea Convention does not subject the United States to significant new legal risks, especially when compared to the benefits of joining the Convention.
The terms of the Convention do not require Parties to comply with other international environmental treaties. With respect to land-based sources and pollution through the atmosphere, Part XII, Section 5 of the Convention requires Parties at most to adopt laws and regulations to prevent, reduce and control marine pollution, but in doing so, parties are required only to “tak[e] into account internationally agreed rules, standards and recommended practices and procedures.” This does not impose an obligation to comply with Kyoto or any other environmental treaty or standard, including treaties to which the U.S. is not a party.
In addition, the U.S. would not be subject to dispute resolution for allegedly violating the Kyoto protocol or any other environmental treaty, including agreements governing pollution from land-based sources. The Convention’s dispute settlement system applies only to disputes “concerning the interpretation or application” of the Convention itself, not to the alleged violation of other treaties. Articles 297 and 298 of the Convention further exclude certain potentially sensitive disputes from dispute settlement.