Revision of Ratification of UNCLOS would expose U.S. to broad liability for environmental damage in international courts from Thu, 08/21/2014 - 20:35
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
Those who are concerned that the marine environment is being damaged by pollution could put their case before the Tribunal, but the obligations of Part XII would have a special effect on the United States, where citizens may sue to ensure the government follows its laws. Under the U.S. Constitution, international treaties have the force of law. Ratifying LOST would therefore enable environmental groups to sue to ensure the release of toxic substances is minimized “to the fullest possible extent” if there is a chance the material will enter the marine environment.
Consider: The nation’s coal-fired power plants release mercury into the atmosphere. Some of this mercury consolidates in rivers, and eventually reaches the ocean. As a result, fish that swim in the ocean have slightly higher levels of mercury in their systems. Sharks that eat these fish have even higher mercury concentrations. The concern that pregnant mothers who eat shark meat are damaging the cognitive development of their unborn children has led environmentalists to demand that the U.S. Environmental Protection Agency issue regulations to reduce the risk to unborn children.
However, consider what the Treaty text implies. There is no requirement to prove that the emissions actually cause significant harm. If the substance emitted is “harmful” to any degree, states are simply required to minimize emissions “to the fullest possible extent.” To all practical purposes, taking the Treaty at its word would require the closure of most if not all coal-fired electricity generation in the United States.
This kind of activism has not taken place in any of the other signatory states, likely because they offer fewer opportunities for concerned citizens to require their governments to follow the spirit and word of the Treaty. In the United States, however, environmental groups would probably sue the day after formal ratification, and the courts would be unlikely to throw out their challenges.
Acceding to UNCLOS would commit the U.S. to controlling its pollutants, including alleged “harmful substances” such as carbon emissions and other greenhouse gases (GHG), in such a way that they do not negatively impact the marine environment. The U.S. would also be obligated to adopt laws and regulations to prevent the pollution of the marine environment from the atmosphere and could be liable under international law for failing to enact legislation necessary to prevent atmospheric pollution. Moreover, such domestic laws and regulations “shall” take into account “internationally agreed rules, standards and recommended practices and procedures.” The “internationally agreed rules, standards and recommended practices” that could be invoked by UNCLOS litigants may include instruments such as the U.N. Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol.
A consensus has emerged within the international environmental and legal community that the United States is the best target for an international climate change lawsuit. One law professor has characterized the United States as a likely target because it is a developed nation with high per capita and total GHG emissions, adding that the “higher the overall historic and present contribution to global emissions by the defending party, arguably the better the chance of a successful outcome.”
The United States has a stake in working with other nations to protect the global environment. For that purpose, it has entered into a number of conventions and agreements, such as, for example, conservation agreements to preserve fish stocks in international waters. But it is one thing to agree to a common standard and another thing to be bound by the decisions of an ongoing regulatory council in which the United States can be easily outvoted. It is one thing to agree to submit particular disputes to international arbitration, with the consent of both parties. It is entirely another thing to establish an ongoing court, with mandatory jurisdiction over important matters and an open-ended claim to “advise” on the law apart from particular disputes. It is something else again to embrace a court that, being permanent, may be prey to all the temptations of judicial activism, to extending its authority by enlarging its jurisdiction and winning popularity by playing favorites in its judgments.
The United States has traditionally respected limits on what it can agree to do by treaty. In the past, it has refused to ratify treaties that delegate so much authority to international institutions. By ratifying UNCLOS, we would not only open ourselves to immediate risks and complications regarding actions on the seas, we would also make it harder to resist more ambitious schemes of global governance in the future. We have said in the past that we cannot submit to such impositions on our own sovereignty. President Reagan made this point in rejecting UNCLOS in 1982, pointing to the open-ended regulatory powers of the Authority. If we ratify UNCLOS, we make it much harder to explain—to others, as to ourselves—why we cannot embrace further ventures in “global governance,” like the International Criminal Court or the Kyoto Protocol. We would feed demands for similar international control schemes for Antarctica or Outer Space.
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.