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
If the United States received an adverse judgment in an UNCLOS climate change lawsuit, the tribunal could order remedies similar to those imposed by the Trail Smelter tribunal—a regime of regulations, compli- ance measures, and even reparations. In anthropogenic climate change parlance, such a regime would be akin to mitigation measures (i.e., actions to reduce the level of U.S. GHG emissions).
A comprehensive GHG mitigation regime imposed on the U.S. would seriously affect the American econ- omy because carbon emissions and other GHG are produced throughout the United States by several signifi- cant sectors of the economy, includ- ing the electricity generation, transportation, industrial, residential, and commercial sectors. Like the “cap-and-trade” regulations that have been debated in Congress, the imposition of international Trail Smelter– style regulations on every U.S. power plant, refinery, automobile, chemical plant, and landfill would harm the U.S. economy.118
The domestic enforceability of UNCLOS tribunal judgments was confirmed by U.S. Supreme Court Justice John Paul Stevens in Medellin v. Texas, a landmark case in 2008.27 In Medellin, Justice Stevens, writing in a concurring opinion, cited Article 39 of Annex VI for the proposition that UNCLOS members—presum- ably including the United States if it accedes to the convention—are obligated to comply with the judgments of the convention’s tribunals. The Medellin case concerned whether the ICJ’s judgment in 2003 against the United States in the Case Concerning Avena and Other Mexican Nationals (the Avena case) is domestically enforceable. Justice Stevens concluded that the relevant treaties in the Avena case—the U.N. Charter and the Vienna Convention on Consular Relations (VCCR)—did not require the Supreme Court to enforce the ICJ’s ruling. Justice Stevens contrasted the permissive language of the U.N. Charter and the VCCR with the explicit language of UNCLOS and concluded that the convention would indeed oblige the Supreme Court to enforce the judgments of UNCLOS tribunals within the United States.28
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.