Dragging America into Court: Law of the Sea And Global Litigation

March 19, 2012 • Commentary
This article appeared in Forbes on March 19, 2012.

They might not be practicing the world’s oldest profession, but lawyers have been always with us. In America political losers increasingly go to court, hoping to convince judges to trump the democratic process. The result has been a rise in dubious judge‐​made “rights” which infringe on the basic liberties of the rest of us.

The same trend threatens on the world scene. The latest vehicle for potential litigation is the Law of the Sea Treaty (LOST), which the U.N.’s Division for Ocean Affairs and the Law of the Sea explained “is not… a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”

Three decades ago President Ronald Reagan rejected LOST, an omnibus agreement which would have redistributed wealth from Western industrialized democracies to Third World dictatorships. The so‐​called G-77, or developing state lobby, hoped to create a new International Seabed Authority (ISA) to control seabed resources and mulct private mining operations.

Then the larger push for a “New International Economic Order” collapsed as the Soviet Union and its allied “socialist bloc” headed toward history’s trashbin. Even Third World governments came to admit that President Reagan had been right about LOST.

Washington should have pushed to sever the seabed regulations from more broadly supported treaty provisions governing navigation and other issues. However, treaties attract State Department diplomats like flames attract moths. The Bush and Clinton administrations decided to “fix” the seabed provisions by renegotiating LOST. The resulting compromise eliminated some of the convention’s most obnoxious rules but preserved the overall Rube Goldberg structure of organizations, committees, commissions, chambers, and more unchanged.

Worse, the revised text left regulatory landmines buried throughout. For instance, one of LOST’s biggest failings was the mandatory transfer of proprietary technology to Third World states as well as the Enterprise, which was to mine the seabed for the Third World‐​controlled ISA. The LOST “fix” only deleted one of two sections governing technology transfer.

Left intact was the requirement that the Authority “promote and encourage the transfer to developing States of such technology and scientific knowledge.” The Authority and member governments also were directed to “initiate and promote” programs “for the transfer of technology to the Enterprise and to developing states,” including “facilitating the access of the Enterprise and of developing States to the relevant technology.”

The revised text even added a new requirement: “If the Enterprise or developing States are unable to obtain deep seabed mining technology, the Authority may request all or any of the contractors and their respective sponsoring State or States to cooperate with it in facilitating the acquisition of deep seabed mining technology.” The Authority could use this language to recreate the mandatory technology transfer requirement.

Other regulatory ghosts haunt the revised text. The original treaty perversely limited mineral production; ambiguous language in the new version could yield the same outcome, despite claims that the accord now is market‐​friendly. Such controversies could end up in international court.

Although LOST focuses on the high seas, it includes language covering domestic pollution. The provisions are surprisingly expansive, or “stunning in their breadth and depth,” as Steven Groves of the Heritage Foundation observed in a new study. A decade ago Ireland relied on LOST to sue Great Britain over the commissioning of a mixed oxide plant because of the latter’s alleged impact on the Irish Sea. The plant had been approved not only by Britain, but also the European Union (EU). Ireland dropped the suit, but only because the EU sued Ireland for not filing its case in the European Court of Justice.

Many environmentalists believe that LOST could be used against the U.S. in the same way. A few years ago an environmental activist mistakenly sent me an email after our debate on the treaty. He acknowledged that it might be difficult to convince Americans that the treaty would not similarly bind America when the World Wildlife Federation and Citizens for Global Solutions were promoting LOST by claiming that the convention would stop Russia from polluting the Arctic. He worried that this inconsistency suggested that the treaty was in fact “some kind of green Trojan Horse.”

It is. Groves noted that “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.”

LOST also incorporates the so‐​called “no harm” rule, which obligates countries to regulate activities in order to avoid negatively impacting neighboring states. The duty makes sense as a guiding principle in designing domestic regulations and undertaking specific international obligations. But, warned Groves, approving LOST would transform “a sensible principle to regulate conduct between two neighboring countries into a seemingly unconstrained doctrine to impute global liability for alleged acts of atmospheric pollution.” Unaccountable international legal forums then would enforce the rule.

Worse, the debate over climate change has opened up grand new litigation vistas. And treaty enthusiasts are anxious to take advantage. William C.G. Burns of the Monterey Institute of International Studies exulted that LOST “may prove to be one of the primary battlegrounds for climate change issues in the future.”

He pointed to the Treaty’s expansive definition of marine pollution: “the potential impacts of rising sea surface temperatures, rising sea levels, and changes in ocean pH as a consequence of rising levels of carbon dioxide in sea water” all could “give rise to actions under the Convention’s marine pollution provisions.” Even if the litigation did not succeed, he suggested that “the specter of litigation may help to deepen the commitment of States” to legislate on the issue.

Two decades ago environmental lawyers Durwood Zaelke and James Cameron wrote about the possibility of low‐​lying islands suing industrialized states over rising sea levels. Unfortunately, the prospect of international lawsuits is more than the gleam of an academic’s eye.

The Pacific island state of Palau announced last September that it would seek a ruling from the International Court of Justice barring nations from allowing emissions from their territory to cause climate change affecting other countries. Palau indicated that it would rely on LOST as well as the Kyoto Protocol. A decade ago Fiji, Kiribati, Nauru, and Tuvalu, also Pacific islands, threatened to sue under LOST, though as yet have not filed. Groves suggested that mountainous nations could similarly sue over shrinking glaciers. One could imagine other states claiming damages based on drought, desertification, or other alleged consequences of global warming.

The issue of climate change is extraordinarily complex. The best evidence is that the planet is warming, but the role of human activity and impact on the environment are far less certain and remain highly controverted. Nor is it possible to demonstrate causation between any particular emission and any particular consequence. There may be good political reasons to mitigate the distress of island countries, but such matters belong in international negotiations, not international courts.

However, as Groves warned, acceding to the treaty “would expose the U.S. to lawsuits on virtually any maritime activity, such as alleged pollution of the marine environment from a land‐​based source or even through the atmosphere. Regardless of the case’s merits, the U.S. would be forced to defend itself against every such lawsuit at great expense.”

Litigation could occur in several venues: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, and a “special” arbitral tribunal. There would be no appeals and all suffer from political elements which would interfere with the delivery of genuine “justice.” Indeed, noted Groves, the U.S. “has suffered adverse judgments in high‐​profile international lawsuits in the past.”

LOST would reinforce the litigation danger by creating obligations directly enforceable by U.S. courts. Annex III, Article 21(2) of the treaty states that tribunal decisions “shall be enforceable in the territory of each State Party.” In a 2008 case Supreme Court Justice John Paul Stevens contrasted another treaty with LOST, which, he wrote, did “incorporate international judgments into international law.” As a result, U.S. judges would become international enforcers.

There is a role for international litigation, but not for resolving important and complicated policy issues. Domestic politics and international diplomacy are messy and imperfect, but remain the proper forums. Ultimately environmental issues are too important to debate without involving those who would do the paying.

Treaty advocates recognize that the American people aren’t likely to favor buying a pig in a poke. So treaty negotiator Bernard Oxman suggested silence. Back in 1996 he admitted that the text “is amply endowed with indeterminate principles, mind‐​numbing cross‐​references, institutional redundancies, exasperating opacity and inelegant drafting.” Thus, he recommended “restraint in speculating on the meaning of the convention.” After all, he added, “it is essential to measure what we say in terms of its effect on the goal. Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them.”

What should irritate Americans even more, however, is the knowledge that LOST proponents are attempting to hide their ambitions.

LOST is a complicated issue, far more so than proponents publicly acknowledge. Perhaps the treaty’s most dangerous aspect is creating a “dynamic and evolving body of law.” America already is paying the price for far too much and too expansive litigation domestically. The U.S. Senate should say no to LOST.

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