If the U.S. reverses its 30-year policy and joins the U.N. Convention on the Law of the Sea (UNCLOS), it will certainly be exposed to climate change lawsuits in the tribunals established by the convention, as detailed in a new Heritage Foundation Backgrounder, “Accession to U.N. Convention on the Law of the Sea Would Expose the U.S. to Baseless Climate Change Lawsuits.”
Since major international conferences held in recent years in Denmark, Mexico, and South Africa have failed to produce a legally binding climate change treaty, proponents of the theory of anthropogenic climate change have been seeking alternate avenues of enforcement for years.
There is little doubt that the U.S. is at the top of the “target list” of environmental lawyers, academics, and activists for an international climate change lawsuit, or that UNCLOS tribunals are among the most favored forums for bringing environmental lawsuits. For instance:
- 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.” According to the article, 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 U.S., including UNCLOS’s compulsory dispute resolution mechanisms.
- In 2004, the Natural Resources Defense Council, Greenpeace, and the Pew Environment Group formed the Deep Sea Conservation Coalition, which urges UNCLOS member states to initiate “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 her 2005 book Climate Change Damage and International Law, law professor Roda Verheyen posed a comprehensive hypothetical case that could be brought against the U.S. 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 U.N. Framework Convention on Climate Change and its 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 U.S. at the Inter-American Commission on Human Rights, a human rights body operating within the Organization of American States. The petition requested that the commission direct the U.S. 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,” which cited UNCLOS’s marine pollution provisions as a basis for a cause of action for rising sea levels and changes in ocean acidity. The author named the U.S. 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.”
To date, though, the U.S. has denied such activists their day in international court by withdrawing from compulsory jurisdiction in the International Court of Justice in 1985 and refusing to accede to UNCLOS. Nevertheless, reversing this policy is on the Obama Administration’s to-do list.