Evidence: Recently Added
Even though LOST permits a state party to declare “disputes concerning military activities” to be exempt from dispute settlement, such a declaration would very likely be the beginning of the process, not its end.
As I have noted earlier, the Treaty does not define “military activities.” At the very least, therefore, were the United States freely to assume the foregoing obligations, it would set the stage for injunctions, or other adverse rulings, against the U.S. military to be sought from one LOST dispute resolution agency or another. Given the stacked-deck nature of these mechanisms, it is far from certain that our opponents will fail.
This applies in spades to things we consider to be “military activities” but that may well be depicted by our opponents in ITLOS or arbitration proceedings as environmentally harmful activities (e.g., charges that Navy sonars are responsible for killing whales and dolphins). Importantly, in the event of any disagreement over whether an activity is military in nature, the Treaty grants to its dispute resolution mechanisms the right to make that determination themselves.
Perhaps the most significant change for the United States concerned decision-making within the International Seabed Authority. Article 161 of the Convention established a sophisticated decision-making procedure calling for different levels of enhanced majorities depending on the type of decision being made. Section 3 of the Part XI Agreement restructured this procedure by establishing a system of ‘‘chambered voting’’ within the Seabed Authority’s governing Council, to protect minority interests while at the same time allowing majority rule under a one-nation one-vote system. This approach was originally advocated by the Nixon Administration in 1970 when it outlined a system of decision-making for the body that eventually became the International Seabed Authority.
As modified in 1994, the Council, which is the main decision-making body of the International Seabed Authority, now consists of 35 members and has four distinct ‘‘chambers’’ of nations representing different interest groups. One chamber consists of four of the nations with the world’s largest economies, with a specific seat allocated to the United States (if it ratifies the Convention) and one reserved for an Eastern European nation. The second chamber consists of four of the nations that have made the largest investments in deep seabed mining. The third chamber includes four of the nations that are net exporters of the minerals to be mined from the sea floor, including at least two developing countries that rely heavily on the income from these minerals. And the fourth chamber consists of all the other developing nations that are elected to the Council. All questions of substance must be adopted by a two-thirds majority of the entire Council and cannot be opposed by a majority in any of the chambers. In other words, each chamber can veto any decision and block action. Certain key decisions can be made only if there is ‘‘consensus’’ of the entire Council.
The Law of the Sea Convention allows countries to claim a continental shelf beyond their 200-nautical-mile EEZ, to a line 350 nautical miles from their coastal baselines, if they can establish that their continental shelf meets the complicated formula found in Article 76. This provision may be of substantial importance in the Arctic, now that the ice in that region is breaking up, as exemplified by Russia’s planting of a flag on the sea floor of the North Pole on August 2, 2007. Russia was not claiming the North Pole, but was exploring the seabed to see whether it could justify a claim to an extended continental shelf under Article 76. The United States may also be able to make an extended continental shelf claim in the Arctic region, perhaps claiming ‘‘more than 200,000 square miles of additional undersea territories,’’41 but its ability to make such a claim credibly will be substantially weakened if it remains outside the Law of the Sea Convention.42
Ken Adelman, an active member of the Reagan Administration’s efforts to persuade allies that they should not support the Convention in 1982, now supports ratification, explaining that the changes made through the Part XI Agreement have responded properly to the concerns they had raised in the early 1980s:
Scraped away are virtually all the barnacles we denounced during our 1982 ‘‘scuttle diplomacy.’’ There’s no bar to private firms mining the minerals. No mandatory technology transfer. No decision-making without U.S. participation. Indeed, the U.S. gets a permanent seat on the decision-making body, and thus has veto power. There’s no bar to future qualified mining firms, and no gigantic LOS institution for wannabe bureaucrats.
The seabed mining regime reflects free-market principles. It offers compa- nies the legal certainty needed for large-scale, long-term investments; protects existing claims of U.S. firms; and reinforces international law on territorial waterways. It locks in U.S. offshore economic rights as it expands our rights over resources in a 200-mile exclusive economic zone, 200-mile continental shelf, and in a shelf beyond 200 miles off Alaska.
The relationship between the LOSC and climate change is not clear-cut, despite its obvious importance. Nevertheless, it is doubtful whether viewing climate change through the law of the marine environment greatly alters the overall picture. At best it provides a vehicle for compulsory dispute settlement notably lacking in the UNFCCC regime. Realistically, while the LOSC may import any newly agreed standards for the control of GHGs, it is not a substitute for further agreement within the UNFCCC framework.
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.
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?
Finally, as I have noted previously, those who are rightly concerned about international litigation against the United States should be much more concerned about subjecting the United States and U.S. businesses to international claims if the United States were to try to claim the resources on its extended continental shelf or on the deep seabed without becoming party to the Law of the Sea Convention. In my view, the risk of environmental litigation against the United States if it joins the Convention is low. The risk of international litigation against the United States if it were unilaterally to claim the resources on its extended continental shelf or on the deep seabed, without becoming party to the Convention, is much higher.
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.
Third, U.S. companies have been unwilling to begin costly exploration and extraction activities in reliance on theoretical and untested legal arguments that have not been accepted by other countries and that are flatly contrary to the terms of Law of the Sea Convention. Companies instead want the clear legal certainty provided by the Convention before making investments that could run into the billions of dollars. Critics of the Convention who are concerned about the possibility of international litigation should be much more concerned about the possibility of lawsuits against the United States or U.S. companies if the United States were to engage in resource extraction on the U.S. extended continental shelf or on the deep seabed contrary to the terms of the Convention, than about possible environmental claims against the United States if the U.S. were to join the Convention. Moreover, a U.S. company that initiates deep seabed mining outside the Convention risks having a foreign company sponsored by a country that is party to the Convention jump on its claim after it has proven to be profitable. No U.S. company would want to take that legal risk.