Environmental Regulations
Quicktabs: Keywords
UNCLOS allows coastal states fairly wide authority to prescribe conditions of entry upon foreign vessels. This constitutes perhaps the most obvious mechanism for addressing illegal or problematic shipping discharges of pollution. Yet the U.S. should ensure its right to establish more stringent or targeted measures as necessary to protect and conserve the marine environment. For example, since 1996 the U.S. has required ships entering the Great Lakes to exchange ballast water from beyond the Exclusive Economic Zone as a condition of entering into the Great Lakes system to minimize the spread of invasive species.10
We urge the Senate to include an interpretive statement on this issue as part of its advice and consent, to be included with the instrument of accession. This statement should clarify that the U.S. interprets Articles 25.2 and 211.3 to recognize longstanding rights of states to impose conditions on the entry of vessels into ports or internal waters. Conditions on port of entry include conditions on operation and design of a vessel as it proceeds to a given U.S. port of call, extending seaward as necessary.
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.
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.
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?
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.
LOST will allow interference with and the penalization of American businesses, including those that conduct research for, equip and provide logistical support to the U.S. military. It will: impose the “Precautionary Principle” (according to which innovations cannot be introduced unless proven free of any adverse consequences); give standing to Alien Torts claims in U.S. courts; require sharing proprietary information and technology with international bureaucrats and competitors; compromise WTO rights; and give precedence to European- dominated international standards. The costs of such derogations of our sovereignty could be high, perhaps even crippling, for affected businesses – including those supporting our armed forces.
Rather than implement a comprehensive national plan designed to comply with the new global "legal order" establishing marine protection, the United States maintains an ad hoc approach to ocean environmental regulation. The United States reacts to specific ecological problems when drafting domestic legislation and when negotiating international agreements. Far from being comprehensive, the U.S. scheme of ocean environmental protection is "scattered," problem-specific, and often contradictory.77
The United States' desire to assert national sovereignty over the ocean space is the basis for legislation regulating the use and protection of ocean resources.78 Its refusal to cooperate with neighboring countries in negotiating ocean environmental policies and access to ocean resources stems from an unwillingness to compromise that sovereignty.79
What might such decisions entail? Thanks to the regulatory powers granted by the Law of the Sea Treaty, the ISA could decide, for example, to issue permits for deep-sea oil or gas exploration and exploitation just beyond our 200-mile Exclusive Economic Zone – without regard for the views of members of this Committee, the Congress more generally or the American people who may consider such activities to be environmentally unsound.
Not only could those concerns be shunted aside as the United States would be, at best, outvoted. An international tribunal created to adjudicate and enforce ISA decisions could levy penalties for any efforts to impede such activities once authorized by the International Seabed Authority – even if we had reason to be fearful that such activities posed an environmental hazard to our coastal areas. Worse yet, the ISA and its tribunal are authorized to ask member states to enforce its judgments, possibly leading to conflict.
Environmental implications could be exacerbated by the ISA’s authority to apportion drilling and mining rights to other nations who may be less scrupulous than American companies in complying with environmental standards and practices this country holds dear. Such apportioning could occur even in situations where this country’s companies provide the research, seed investment and fees – the first a UN agency has ever been allowed to levy – associated with securing the required ISA permits.