Diplomacy on Edge: Why America Must Not Join The Law of the Sea Treaty
By Steven Groves, Heritage Foundation: The U.S. should not accede to the U.N. Convention on the Law of the Sea (UNCLOS). It would expose the United States to international environmental lawsuits that would harm its environmental, economic, and military interests. Having failed to impose their agenda on the U.S., climate change alarmists and other environmental activists are preparing the legal ground and claimants to sue the U.S. if it joins UNCLOS.
According to international law professors Michael Faure and Andre Nollkaemper, “The possibility that a small island state, or another injured party, would bring a liability claim against states responsible for climate change no longer is a topic for fiction or a theoretical prospect. There is a rise in plans for litigation worldwide for consequences of global warming.”
Numerous nations qualify as potential claimants in a lawsuit against the United States in an UNCLOS tribunal, including virtually every developing nation in the world that claims to have experienced a negative impact from climate change. The highly controversial and error-prone U.N. Intergovernmental Panel on Climate Change has identified multiple negative impacts related to the world’s oceans that are attributable to climate change, including sea-level rise, reduction in sea-ice cover, elevated sea surface temperatures, increased storm floods, coastal erosion, seawater intrusions into fresh surface and groundwater, and adverse impacts on marine fish and aquaculture.
Some climate scientists claim that these changes in the oceans are caused by GHG emissions and are responsible for damaging the environments of coastal and small island states around the world.
Rising ocean temperatures will negatively affect coral reefs in the Pacific and Indian Oceans as well as the Caribbean Sea, leading to the loss of 50 percent of the subsistence and artisanal fisheries due to coral bleaching.
Rising sea levels will destroy vast areas of mangrove trees on the world’s tropical coastlines and wipe out critical beach habitats, such as those of sea turtles, due to storm surges and coastal erosion.
Increases in ocean acidification due to increased carbon dioxide emissions will damage coral reefs in the Red Sea, the west central Pacific, and the Caribbean.
Because these alleged climate change phenomena are global in effect, so is the potential pool of litigants in an UNCLOS lawsuit.
Perhaps the first treatise that identified potential climate change claimants and outlined the contours of an international climate change lawsuit was written in 1990 by law professors Durwood Zaelke and James Cameron. Zaelke and Cameron projected that the nations most likely to bring a climate change lawsuit were low-lying islands negatively affected by the sea-level rise allegedly caused by global warming, such as Kiribati, Maldives, the Marshall Islands, and Tuvalu.
According to Zaelke and Cameron, a rise in sea level would seriously damage these island nations, causing the inundation of wetlands and lowlands, erosion of shorelines, increased coastal flooding, salinization of aquifers, and increased height and frequency of waves. The rise in sea level “combined with the increased intensity and frequency of storms, could cause the loss of lives, property, livelihood, and, in some cases, the entire territory of a state, creating stateless environmental refugees.”
More than a decade after their treatise was published, one of Zaelke and Cameron’s hypothetical claimants threatened to sue the United States for its alleged contribution to global climate change. Specifically, in 2002, the prime minister of Tuvalu, a Pacific island nation consisting of a chain of nine coral atolls, stated his intention to initiate a climate change lawsuit against the United States because of its failure to adopt the Kyoto Protocol. That year, at the World Summit for Sustainable Development held in Johannesburg, Tuvalu’s government lobbied other small island nations to join them in such a suit at the International Court of Justice.
Tuvalu and three other small Pacific island nations (Fiji, Kiribati, and Nauru) have contemplated such a lawsuit, as evidenced by their declarations upon signing the UNFCCC in 1992. Specifically, each of these nations submitted a declaration that preserved its right to seek legal redress for damages allegedly suffered as a result of climate change. For example, Fiji’s UNFCCC declaration reads:
The Government of Fiji declares its understanding that signature of the Convention shall, in no way, constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change, and that no provisions in the Convention can be interpreted as derogating from the principles of general international law.
In other words, these four nations took specific measures to ensure that signing the UNFCCC did not constitute a waiver of their rights to hold other nations responsible for damages allegedly caused by climate change.
Of course, Fiji, Kiribati, Nauru, and Tuvalu are not the only small island nations that qualify as potential climate change litigants. Many other small island states may also experience sea-level rise and other adverse impacts from climate change, as well as ocean acidification allegedly caused by an increase in carbon dioxide emissions. The Alliance of Small Island States, an intergovernmental body established in 1990 to address global warming and negotiate within the U.N. system, has 37 members, 36 of which are UNCLOS states parties.
While small island states are among the most likely climate change claimants, there is no shortage of other nations that could bring a lawsuit against the United States if it accedes to UNCLOS. Low-lying coastal states would suffer from rising sea levels in the same manner as small island states. A rise in sea level of only one meter would allegedly destroy a large portion of Bangladesh, while a two-meter rise would flood Lagos, the capital of Nigeria, as well as 20 percent of the populated area of Egypt. Such low-lying nations may also experience “extreme weather events” induced by climate change such as tropical cyclones of increased frequency and intensity. Even some European nations will allegedly suffer from sea level rise, salt water infusions, and coastal erosion due to climate change.
Potential climate change litigants are not limited to states that would suffer damages from a rise in sea levels. Landlocked nations in the Himalayan mountains may have a claim for climate change damages. For example, climate change is allegedly responsible for causing glaciers to retreat, adversely affecting nations such as Nepal, which is “highly dependent on the water from mountain runoff and on the electricity generated by these waters.”
From coral atolls in the Pacific Ocean to low-lying coastal states to landlocked Himalayan nations, as long as a country is an UNCLOS state party and can demonstrate that it has suffered adverse effects from climate change, it qualifies as a potential litigant in the convention’s compulsory dispute resolution tribunals. Scores of such nations are positioned to initiate climate change lawsuits against the United States if it accedes to the convention.
The “Most Logical Target”
There is consensus 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.”
Over the past decade, since Tuvalu’s 2002 threat to sue the United States, the drumbeat to sue the U.S. has increased steadily, and UNCLOS tribunals have featured prominently among the potential forums for such a case.
In 2003, the Washington, D.C.-based Environmental Law Institute published “The Legal Option: Suing the United States in International Forums for Global Warming Emissions” by law professor Andrew L. Strauss. According to Strauss, the U.S. rejection of the Kyoto Protocol “makes the United States the most logical first country target of a global warming lawsuit in an international forum.” The article proposed various forums for initiating a lawsuit against the United States, including UNCLOS’s compulsory dispute resolution mechanisms, but Strauss lamented, “As the United States has not adhered to the Convention, however, a suit could not be brought directly against it under the Convention.”
In her 2005 book Climate Change Damage and International Law, law professor Roda Verheyen posed a comprehensive hypothetical case that could be brought against the United States for its alleged responsibility in melting glaciers and causing glacial outburst floods in the Himalayas. The claim would include compensation for flood damages as well as additional funds to monitor glacial lakes and prevent future floods. Verheyen based liability for such damages on the U.S.’s alleged violation of its commitments under the UNFCCC and failure to ratify the Kyoto Protocol.
In December 2005, the Inuit Circumpolar Council, an international nongovernmental organization representing Inuit peoples in Alaska, Canada, Greenland, and Russia, filed a petition against the United States at the Inter-American Commission on Human Rights (IACHR), a human rights body operating within the Organization of American States. The petition requested that the IACHR direct the United States to adopt mandatory measures to limit its emissions and to provide assistance to help the Inuit adapt to the impacts of climate change.
In 2006, the International Journal of Sustainable Development Law & Policy published “Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention,” in which law professor William C. G. Burns cited UNCLOS’s marine pollution provisions as a basis for a cause of action for rising sea levels and changes in ocean acidity. Burns named the United States as “the most logical State to bring an action against given its status as the leading producer of anthropogenic greenhouse gas emissions, as well as its failure to ratify Kyoto,” but noted that the U.S. “is not currently a Party to the Convention.”
In a September 2011 speech to the U.N. General Assembly, Johnson Toribiong, president of the small Pacific island nation of Palau, called upon the General Assembly to seek an advisory opinion from the International Court of Justice “on the responsibilities of States under international law to ensure that activities carried out under their jurisdiction or control that emit greenhouse gases do not damage other States.” President Toribiong cited Article 194 of UNCLOS (the no-harm rule) in support of his statement.
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.
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.
Environmental NGO Enablers
Some environmental activist groups have already demonstrated a propensity for supporting, participating in, and in some cases actually filing climate change lawsuits against U.S. targets, as well as taking other legal actions relating to the marine environment in U.S. courts and international forums.
In 2002, Greenpeace, Friends of the Earth, and the city of Boulder, Colorado, filed a climate change lawsuit against the Export–Import Bank of the United States and the Overseas Private Investment Corporation, alleging that they improperly financed fossil fuel projects in foreign nations without assessing whether the projects contributed to global warming or harmed the U.S. environment in violation of the National Environmental Policy Act.
In 2004, environmental activists including the Natural Resources Defense Council, Greenpeace, and the Pew Environment Group formed the Deep Sea Conservation Coalition, which urges UNCLOS member states to “initiat[e] legal action through the International Tribunal for the Law of the Sea (ITLOS) against States that continue to allow deep-sea [bottom] fishing on the high seas in contravention of the provisions of [U.N. General Assembly] resolutions.”
In 2005, when the Inuit Circumpolar Council drafted its climate change petition accusing the United States of human rights violations, the council “received a great deal of assistance from environmental non-governmental organizations such as the Center for International Environmental Law and Earthjustice.” The council also received assistance from academic specialists in “the field of indigenous peoples’ human rights.”
In 2010, Greenpeace International and the World Wide Fund for Nature intervened in ITLOS proceedings in connection with an advisory opinion concerning the responsibilities of UNCLOS states parties with respect to their activities in the deep seabed.
In 2011, Greenpeace and the te Whanau-a-Apanui tribe petitioned the government of New Zealand to revoke an oil exploration permit that had been awarded to Petrobras, a major Brazilian oil company. The petition claimed that New Zealand had failed to properly consider the environmental impact of the permit, in violation of customary international law and UNCLOS.
Not surprisingly, major U.S. and international environmental activist groups and nongovernmental organizations strongly support U.S. accession to UNCLOS. Supporters of U.S. accession include the Defenders of Wildlife, the Environmental Defense Fund, Greenpeace, the International Union for Conservation of Nature, the Natural Resources Defense Council, the Nature Conservancy, the Ocean Conservancy, Oceana, and the World Wildlife Fund.
These activists, bolstered by international environmental lawyers and academics, will undoubtedly support any climate change lawsuit brought against the United States by an UNCLOS state party. Such support could come in a number of forms, including fundraising, legal research, political advocacy and pressure within the U.S. and at international conferences, public relations campaign activities, letter-writing efforts, and online petitions.
Three Unpredictable “Swing” Votes
If the U.S. accedes to UNCLOS and a climate change lawsuit is brought against it, the case will most likely be litigated by an Annex VII arbitral tribunal. It is also likely that a climate change claimant will seek “provisional measures” injunctive relief at ITLOS while the arbitral tribunal is being assembled.
Litigating a politically explosive climate change lawsuit in an Annex VII tribunal would create great uncertainty for the United States because of the manner in which the five-member tribunal is assembled. Under Annex VII, the U.S. and the opposing party would each select one of their nationals as the first two members of the tribunal, possibly from a list of maritime experts maintained by the U.N. Secretary-General. Thereafter, the two parties would jointly select the remaining three members, again possibly from the same list of experts. However, if the two parties were unable to agree on these three “swing vote” members, their selection would fall to the president of the International Tribunal for the Law of the Sea, who would select the three members from the list of experts at his complete discretion.
Therein lies the great uncertainty and risk of litigating in an UNCLOS arbitral tribunal. Due to the potential legal, economic, and political consequences of a climate change lawsuit, there is a strong likelihood that the United States and a climate change claimant would not agree on the three “swing” members of an Annex VII tribunal. The U.S. would then be at the mercy of the ITLOS president, who would select those three members from a list of international experts who likely sympathize legally, ideologically, and politically with the aggrieved climate change claimant.
The current list of Annex VII arbitrators is populated with foreign nationals from countries that do not necessarily have the best interests of the United States at heart. For example, the current list includes the nationals of UNFCCC “non-Annex I” nations and other developing countries (Argentina, Brazil, Chile, Costa Rica, Indonesia, Mexico, Mongolia, Sri Lanka, and Trinidad and Tobago) that are likely to be sympathetic to the perceived plight of small island states and other developing countries. European Union countries with nationals on the current Annex VII arbitrator list (Austria, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Italy, the Netherlands, Poland, Portugal, Romania, Slovakia, Spain, Sweden, and the United Kingdom) are uniformly proponents of the theory of anthropogenic climate change. Still other countries represented on the list (Russia and Sudan) are nations that the U.S. would not consider reliable allies.
In sum, by acceding to UNCLOS the United States would unnecessarily 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.
Part IV: The U.S. Should Avoid Unnecessary Legal and Political Exposure
If the United States acceded to UNCLOS and was sued for climate change damages, it would certainly defend itself vigorously. However, a review of the proceedings and judgments in the Paramilitary Activities, Avena, and MOX Plant cases shows that having strong jurisdictional and legal defenses does not necessarily carry the day. The United States ignores the lessons learned from those international lawsuits at its peril.
A Climate Change Regime for the U.S.
Unlike the U.S. legal system, which prohibits lawsuits that raise nonjusticiable political questions, international tribunals have not hesitated to accept jurisdiction in such cases and have issued judgments that have adversely affected U.S. national interests.
The ICJ’s judgments in the Paramilitary Activities case, in which it condemned U.S. use of force in Nicaragua and ordered the payment of reparations, and the Avena case, in which it questioned the use of the death penalty in Texas and ordered additional legal reviews, prove that international courts will not hesitate to interfere in contentious social, military, and political matters. In the MOX Plant case, UNCLOS tribunals asserted jurisdiction over a major environmental dispute between Ireland and the United Kingdom.
Perhaps the greatest danger that the U.S. would face if it acceded to UNCLOS is a judgment that falls along the same lines as that imposed in the Trail Smelter case. That case involved a single smelting operation in Canada, yet the arbitral tribunal ordered intrusive studies and comprehensive, costly remedies.
The Trail Smelter tribunal ordered a complex, multiyear study of the fumes from the Canadian smelter. Scientists were hired to serve as technical consultants and to conduct wide-ranging experiments, as described in the tribunal’s judgment:
Through the authority vested in it by the Tribunal, this technical staff was enabled to study the influence of meteorological conditions on dispersion of the sulphurous gases emitted from the stacks of the smelter. This involved the establishment, operation, and maintenance of standard and newly designed meteorological instruments and of sulphur-dioxide recorders at carefully chosen localities in the United States and the Dominion of Canada, and the design and construction of portable instruments of various types for the observation of conditions at numerous surface locations in the Columbia River Valley and in the atmosphere over the valley. Observations on height, velocity, temperature, sulphur dioxide content, and other characteristics of the gas-carrying air currents, were made with the aid of captive balloons, pilot balloons and airplane flights.
The results of these experiments, which were conducted over three years, were transmitted to the tribunal in a 374-page report, accompanied by “numerous scientific charts, graphs, and photographs.” Based on that report, the tribunal ordered that the smelter operation “shall be regulated” through a comprehensive “regime” to monitor and restrict its operations. The tribunal ordered the smelter to install meteorological instruments to measure and record wind direction and velocity on an hourly basis and a special “bridled cup turbulence indicator” to measure wind turbulence. The tribunal further ordered that atmospheric temperature and barometric pressure must also be measured and that sulfur dioxide concentrations be measured on a daily basis and reported to the U.S. and Canada on a monthly basis.
Most apropos to a potential legal remedy for climate change damages, the Trail Smelter tribunal set maximum levels of “hourly permissible emission” of sulphur dioxide fumes from the smelter. One such restriction required the smelter to shut down or reduce its emissions during the growing season if the sulphur dioxide recorder located at Columbia Gardens (halfway between the smelter and the international boundary line) indicated the presence of 0.3 parts per million or more of sulphur dioxide emissions over two consecutive 20-minute periods. The tribunal’s regime included similarly detailed regulations for the nongrowing season:
If the Columbia Gardens recorder indicates 0.5 part per million or more of sulphur dioxide for three consecutive twenty minute periods during the non-growing season and the wind direction is not favorable, emission shall be reduced by four tons of sulphur per hour or shut down completely when the turbulence is bad, until the recorder shows 0.2 part per million or less of sulphur dioxide for three consecutive twenty minute periods.
As a consequence of the tribunal’s comprehensive regulations, the smelter operation ultimately spent nearly $20 million (approximately $310 million in today’s dollars) to reengineer the smelter to recover the pollutants and turn them into a marketable byproduct.
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, compliance 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 economy because carbon emissions and other GHG are produced throughout the United States by several significant sectors of the economy, including 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.
The U.S. government has already completed much of the groundwork for formulating a potential mitigation regime that could be imposed by an UNCLOS tribunal. The Environmental Protection Agency (EPA) has helpfully compiled an inventory of all U.S. GHG emissions from 1990 to 2009, which would assist an UNCLOS tribunal in developing a mitigation plan for the United States. Starting in 2010, approximately 13,000 U.S. facilities accounting for 85 percent of U.S. GHG emissions will be required to track their own emissions and report them to the EPA under the Greenhouse Gas Reporting Program. If an UNCLOS tribunal needed examples of GHG regulations for inspiration, it could refer to such publications as the EPA’s 673-page proposed rule for regulating GHG emissions from medium- and heavy-duty vehicles. Such industry data, government reports, and programs would also be considered admissions of liability by the United States and would likely feature prominently in any international climate change lawsuit.
As in the Trail Smelter case, an UNCLOS tribunal could field a team of technical experts to report regularly on U.S. compliance with the tribunal’s judgment, providing daily or monthly reports tallying GHG emissions, mitigation efforts, temperature monitoring, and so forth. Intrusive site inspections by international climate change scientists might also be judged appropriate to monitor compliance with the tribunal’s orders. Such reports and inspections would amount to a “measurement, reporting and verification” system that a comprehensive climate change convention has thus far failed to adopt.
In addition to mitigation and compliance measures, the United States could be ordered to pay monetary reparations, long recognized under international law, to the aggrieved climate change claimant. Small island states such as Tuvalu and Palau consider climate change an existential threat and believe that they will eventually be submerged beneath rising sea levels. Other low-lying nations such as Bangladesh expect to endure massive displacements of their coastal populations due to coastline erosion.
Assigning dollar amounts to such catastrophic events is necessarily difficult, but the costs would undoubtedly be significant. In 2008, for example, an Inupiat village of 400 people in Alaska initiated a climate change lawsuit against major oil companies and electric utilities, alleging that their contribution to climate change had caused coastal erosion, endangering the village’s existence. The village demanded that the defendants pay $400 million ($1 million per villager) to relocate their village 12 miles inland.
Such reparations awards would accomplish under the patina of international law a transfer of wealth from the global North to the global South, a goal that has long been central to the demands of the developing world at international climate change negotiations.
Political Exposure and International Pressure
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. 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 pressure 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.
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). 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.”
Another law professor maintains that the mere act of “preparing, announcing, filing, advocating and forcing a response” to a climate change lawsuit would significantly affect ongoing treaty negotiations; build awareness of climate change; develop climate science, law, and policy; strengthen international institutions; support the democratization of global environmental governance; promote the progressive development of international law; and bolster “transnational climate advocacy networks.” Indeed, “the most important role of international climate change litigation” may be to influence treaty negotiations:
[T]he threat of such litigation may have an important effect on the negotiations concerning further reductions of GHG emissions. Thus, exploring the possibilities of such international climate change litigation can be seen as a useful device for furthering the international process and negotiations aiming at the reduction of GHG emissions.
Therefore, those who want the recalcitrant United States brought to heel would win a significant political and diplomatic victory for their cause merely if an UNCLOS tribunal asserted jurisdiction over a climate change lawsuit. Like the International Court of Justice, the tribunals established under UNCLOS have complete discretion over whether they have jurisdiction on a particular case: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” As was seen in both the Paramilitary Activities and MOX Plant cases, international courts have asserted and maintained jurisdiction in cases where a party rightly and correctly opposes jurisdiction and even in cases where a nation abandons the proceedings altogether.
Moreover, if the United States fails to adhere to an adverse judgment on climate change issued by an UNCLOS tribunal, it risks political backlash both domestically and within the international community. This was starkly illustrated in both the Paramilitary Activities and Avena cases.
In the Paramilitary Activities case, the ICJ issued an adverse judgment against the United States despite the U.S.’s withdrawal from that court’s jurisdiction. When the United States continued to insist that the ICJ lacked jurisdiction over the matter, Nicaragua elevated its case to the U.N. Security Council. Specifically, in July and October of 1986, Nicaragua petitioned the Security Council to enforce the ICJ’s judgment in Paramilitary Activities. In both instances, the council voted overwhelmingly (11 to 1) to demand that the United States fully comply with the ICJ’s judgment. On both occasions, the United States was forced to cast a politically embarrassing veto to prevent the council from adopting the resolutions.
The United States also suffered negative political exposure from its refusal to comply with the ICJ’s judgment in the Avena case. One of the 54 Mexican death-row inmates in the Avena case was Jose Ernesto Medellin, a man who had been convicted and sentenced to death in Texas for the brutal gang rape and murder of two Houston teenagers. After the ICJ’s ruling in Avena, Medellin filed a petition for habeas corpus in U.S. court, asserting that Texas was obligated to enforce the ICJ’s judgment and reconsider his conviction and death sentence. The Medellin case was ultimately heard by the U.S. Supreme Court, which in March 2008 held that the ICJ’s judgment in Avena was not enforceable in the United States.
The Supreme Court’s ruling in the Medellin case led to diplomatic protests by Mexico and demonstrations in Mexico City, both at the time of the court’s decision and on the day of Medellin’s execution. The government of Mexico accused the United States of violating international law by refusing to enforce the ICJ’s judgment.
In addition, in the 112th Congress, Senator Patrick Leahy (D–VT), chairman of the Committee on the Judiciary, introduced the Consular Notification Compliance Act of 2011. If enacted, the legislation would grant U.S. federal courts jurisdiction to review the cases of Mexican nationals convicted and sentenced to death who claim that their rights under the Vienna Convention on Consular Relations were violated. Senator Leahy’s bill is strongly supported by Amnesty International, Human Rights First, Human Rights Watch, and the American Civil Liberties Union.
Finally, unlike the situation in the Paramilitary Activities and Avena cases, it would not be politically feasible for the United States to withdraw from UNCLOS in the wake of an adverse climate change judgment. The U.S. could not limit its withdrawal to UNCLOS’s compulsory dispute resolution provisions, but instead would be required to withdraw from the entire convention, exposing it to criticism for rejecting the convention’s environmental protection rules, deep seabed regulations, and navigational provisions.
Don’t Open the Door
U.S. national interests would be harmed rather than advanced by accession to UNCLOS. In addition to needlessly exposing itself to baseless environmental lawsuits, the United States would be required to transfer billions of dollars in oil and gas royalties generated on its continental shelf to the International Seabed Authority for redistribution to the developing world. However, the loss of those royalties pales in comparison to the potential costs of a climate change judgment by an UNCLOS tribunal against the United States.
Some UNCLOS states parties, particularly small island nations that view climate change as an existential threat, are poised to sue major greenhouse gas emitters, particularly the United States, in international court. A climate change lawsuit would be encouraged, promoted, and funded by willing international academics, nongovernmental organizations, and climate activists such as Greenpeace and the Natural Resources Defense Council.
In the past, international courts have not hesitated to pronounce adverse judgments against the United States that have negatively affected its national interests, including judgments on critical matters such as the use of military force, as in the Paramilitary Activities case, and on controversial legal and social issues such as the death penalty, as in the Avena case. UNCLOS tribunals have already indicated that they will engage in hotly contested international environmental disputes, as demonstrated by the MOX Plant case.
An adverse judgment against the United States in a climate change lawsuit would be domestically enforceable and would undoubtedly harm the U.S. economy. The regime formulated by the arbitral tribunal in the Trail Smelter case, if extrapolated to its logical extent and applied to U.S. industries that produce greenhouse gases, would impose massive regulatory burdens on U.S. companies, and the costs would be passed on to American consumers. Such a judgment would accomplish through international litigation what climate change alarmists could not achieve through treaty negotiations or in the U.S. Congress.
No comprehensive study of the potential legal, economic, political, and military consequences of adverse judgments from UNCLOS tribunals has been conducted. The U.S. government should assess the litigation risks that would come with UNCLOS membership. To that end:
The Obama Administration should conduct an interagency review of UNCLOS’s compulsory dispute resolution mechanisms to determine the extent to which the United States would be exposed to baseless environmental and other lawsuits and the potential economic, political, and military costs to the U.S. that could result from such suits.
Relevant Senate and House committees should hold oversight hearings on potential lawsuits that may be brought in an UNCLOS tribunal that could result in adverse judgments that harm U.S. environmental, economic, and military interests.
The proponents of anthropogenic climate change—including small island states, low-lying coastal nations, environmental activists, and international legal academics—already possess the means and motive to initiate a climate change lawsuit against the United States but currently lack the opportunity to do so. Accession to UNCLOS would open that door.
Steven Groves is Bernard and Barbara Lomas Fellow at the Margaret Thatcher Center for Freedom of the Heritage Foundation, from where this article is adapted. He is also a contributor to ConUNdrum: The Limits of the United Nations and the Search for Alternatives.