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
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.
A claimant in a climate change lawsuit against the United States would face several legal and evidentiary challenges in proving its case in an UNCLOS tribunal, including jurisdictional hurdles, causation issues, and the question of equitable apportionment of damages.126 Nevertheless, regardless of whether the U.S. might ultimately prevail in such a case, acceding to the convention is fraught with political danger. Advocates of international climate change lawsuits see them as an acceptable way to achieve their environmental ends, including U.S. capitulation to a comprehensive climate change treaty:
Litigation or the threat thereof would emphasise the urgency of the need to agree [to] binding commitments on climate change and would put additional pres- sure on the negotiations process. Negotiators may feel more of a responsibility vis-à-vis the international community and have an additional lever in relation to their national governments. A high-profile court case would also engage a variety of actors in the debate and provide new momentum to find consensual solutions inside and outside the UNFCCC talks ... . Inter-State climate change litigation may help to create the political pressure and third-party guidance required to re-invigorate the international negotiations, within or outside the UNFCCC.127
One law professor believes that “litigation will very likely play a role” in determining who will bear the costs of climate change and singles out the United States for special treatment, stating that “litigation efforts need to be primarily focused on the United States as the major hindrance to beginning the remedial process” (i.e., by failing to ratify the Kyoto Protocol).128 Other proponents of the theory of anthropogenic climate change understand that there are precedents for using international courts to achieve purposes other than legal redress. For instance, the World Trade Organization “has similarly been strategically employed by governments to influence negotiations and clarify State obligations.”129