Revision of Ratification of UNCLOS would expose U.S. to broad liability for environmental damage in international courts from Sun, 03/09/2014 - 11:09
By ratifying UNCLOS, the U.S. would be exposed to climate change lawsuits and other environmental actions brought against it by other members of the convention and the economic and political ramifications of such lawsuits could be dire.
Quicktabs: Arguments
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.
The environment is another issue of interest. University of Miami law professor Bernard H. Oxman, a long-time LOST advocate, argues that, “The Convention is one of the rare treaties to articulate a basic environmental norm in unqualified form.”19 There is nothing intrinsically wrong with articulating environmental norms—if they are justified, are qualified to account for competing interests, and are in accordance with each participant country’s governing institutions. But that is unlikely to emerge from a highly political process like the LOST negotiations.
Indeed, the Treaty risks endorsing some very bad environmental policy approaches. For example, South African Ambassador Sandile Nogxina, speaking on behalf of the African Group to celebrate the 10th anniversary of the LOST system, declared that, “The concept of sustainable development is a principle which the African group embraces.”20 At the same ceremony, South Korea’s Jung Hai-ung, representing the Asian group, opined “that the precautionary approach set out in Agenda 21, chapter 17, should be applied to the seabed activities.”21 The Netherlands formally pushed the Council “to apply a precautionary approach to seabed exploration.”22
All of these terms incorporate much larger political agendas. Biasing the process against development globally would have profound impacts on all peoples, and especially those in the poorest lands who most need the results of economic growth, international investment and trade, and globalization. Serious application of the precautionary principle would halt economic development, since it is impossible to prove a negative— that a new process or technology involves no risk. Trade-offs are inherent to any economic endeavor, with a thoughtful balancing of potential costs and benefits.
Finally, the LOST may encourage the UN to venture into unexplored territory. The UN’s Division for Ocean Affairs and the Law of the Sea boldly announced that the LOST “is not . . . a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”69 If international jurists exhibit the same creativity as shown by some judges domes- tically, the LOST might prove to be dangerously dynamic.
In 2001 Douglas Stevenson, representing the Seamen’s Church Institute, an advocacy group for mariners, complained about “trends that erode traditional seafarers’ rights,” such as that to medical care, as well as to protection from abandonment by insolvent and irresponsible ship owners. Stevenson explained, “When mariners’ health, safety or welfare is in jeopardy, we look to the United Nations Convention on the Law of the Sea to protect them.”70 There are obviously real and tragic abuses of seamen, but what the “international community” should do as part of the LOST about such issues is not obvious. Washington might find itself facing unexpected obligations if it signs on.