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United Nations Convention on Law of the Sea and Climate Change

New York Law Journal

August 31, 2012

High on the list of subjects that will neither be discussed nor acted on during the coming presidential campaign is U.S. ratification of the United Nations Convention on the Law of the Sea (UNCLOS), the most important international effort in history to protect the marine environment. This is unfortunate because ratification of UNCLOS is not only in our national interest, but is now more urgent than at any time since the Convention was first approved by the UN in 1982. Ironically, it is the failure of the United States and other nations to limit their greenhouse gas (GHG) emissions that has given rise to conditions that now make UNCLOS attractive to some of the very business interests that have opposed GHG limits. Despite the corporate support for UNCLOS by the oil and gas industry, shipping firms and the U.S. Chamber of Commerce, opposition among Republican senators to any form of new international agreement, whether environmental or otherwise, threatens to derail ratification of UNCLOS at a time when the marine environment is under extreme and potentially irreversible stress, with the most profound implications for mankind.

This column reviews the current status of efforts to ratify UNCLOS; the compelling economic, environmental and national security reasons for that action; and the often overlooked relationship between climate change and the health of the oceans. It also suggests a possible approach to reconciling economic and environmental concerns if UNCLOS were to be ratified and urges both the Obama administration and those favoring ratification to deal more directly with the canard that UNCLOS would undermine U.S. "sovereignty."

Senate Hearings

Although UNCLOS was the product of many years of negotiation in which the United States was actively involved, President Ronald Reagan declined to submit the 1982 Convention for Senate ratification principally because of objections to the deep sea-bed mining provisions of UNCLOS's Article XI. When those objections were met by amendments to the Convention in 1994, both Presidents William Clinton and George W. Bush urged ratification on the ground that UNCLOS was, in addition to its role in protecting the marine environment, important for future U.S. economic and security interests. For a variety of reasons, the Senate nevertheless failed to ratify UNCLOS, leaving the United States as the only major nation absent from the Convention when it came into force in November 1994.

This past spring the Obama administration, with strong support from both Senator John Kerry, the Democratic chairman of the Senate Foreign Relations Committee, and Senator Richard Lugar, the committee's ranking Republican member, made a renewed effort to ratify UNCLOS and dispatched Secretary of State Hillary Clinton, Defense Secretary Leon Panetta and Chairman of the Joint Chiefs of Staff General Martin Dempsey to testify in favor of ratification. At the same time, five former secretaries of state in Republican administrations, Henry Kissinger, George Shultz, James Baker III, Colin Powell and Condoleezza Rice, all urged ratification in a widely circulated article in The Wall Street Journal.

Secretary Clinton pointed to four major developments that now make UNCLOS ratification even more important than it was in 1994: (1) new technology permits U.S. companies to exploit oil and gas reserves in the newly accessible continental shelf, which can be recognized and accepted as U.S. territory by UNCLOS even beyond the United States' 200-mile Exclusive Economic Zone (EEZ); (2) similar improvements in deep seabed mining technology, which now make it feasible for U.S. firms to extract rare earth and other minerals from the ocean floor outside of any nation's jurisdiction; (3) newly available oil and gas exploration, shipping, tourism and fishing in the Arctic as a result of global warming; and (4) the fact that two of UNCLOS's new international institutions, the International Seabed Authority (ISA) and the Continental Shelf Commission (CSC), are now up and running without any U.S. participation. Panetta and Dempsey emphasized the national security implications of protecting U.S. rights of passage in newly accessible Arctic sea routes as well as in other potentially contested sea lanes in the South China Sea.

Arctic Drilling

There are indeed compelling national security reasons for the United States to ratify UNCLOS, and U.S. participation in both the CSC and the ISA is already overdue. Moreover, the opportunity to extend the reach of U.S. law (and U.S. energy policy) beyond the United States' EEZ offers potentially significant advantages, both economically and environmentally, provided U.S. environmental laws are applied rigorously to Arctic and deep seabed mining activities. However, BP's Deepwater Horizon oil spill in the Gulf of Mexico, as well as other companies' spills in other coastal waters, make clear that the potentially serious risks of Arctic oil spills cannot be ignored, particularly in view of the far greater difficulty of containing and remediating a major spill in isolated and challenging sea conditions and in locations where the impact of such a spill could be felt by a half-dozen nations bordering (and claiming sovereignty over) Arctic waters.

Because the Deepwater Horizon spill did not appear to cause any significant environmental impacts to other nations' coasts or marine life, the United States escaped the prospect of international damage claims for its failure to exercise adequate supervision over its lessee BP. That might not be the case for an Arctic spill, where the injured parties might include Canada, Norway, the United Kingdom and Russia.

Moreover, even vigorously enforced U.S. regulation over Arctic drilling should not obscure the risk that the benefits from Arctic oil and gas will further sap what is left of U.S. efforts to develop renewable energy sources able to meet the nation's long-term energy requirements while reducing GHG emissions by the required 80 percent by 2050. Both the Obama administration and environmentalists undoubtedly welcome their newfound corporate allies in the campaign for UNCLOS ratification. That support, however, should not come at the expense of a renewed effort by the Obama administration (a) to require more stringent regulation of offshore oil and gas exploitation; (b) to fund and implement far more ambitious wind, solar, geothermal and even tidal energy projects (including transmission lines) concurrently with offshore drilling in the Arctic and elsewhere; and (c) to finally put in place either a carbon tax or, failing that, a cap-and-trade program to discourage continuing reliance on fossil fuels (particularly coal and oil) by U.S. industry and consumers.

Threatened Oceans

It is not sufficiently recognized just how much the Earth's oceans—as much or more than its atmosphere—are at risk from accelerating climate change. While the atmosphere absorbs about half of the world's carbon dioxide emissions and can take decades (or even centuries) to overcome the warming effects of these and other emissions, the oceans absorb almost one-third of carbon dioxide emissions and can take centuries or millennia to achieve a more "normal" state. During this period, the world's weather patterns can be severely affected in ways not yet fully understood (but which are clearly linked to both more rain and more drought in food-producing areas), warming seas expand to erode coastlines and flood coastal cities, the increased acidity of ocean waters threatens coral reefs and, in turn, the marine life on which people also depend for food.

In addition to these long-term climate impacts, the Earth's oceans are increasingly threatened by land-based pollution from industrial effluent, fertilizer and pesticide runoff from farms, untreated urban sewage, solid waste in the form of plastic, pollution from vessels and overfishing that has reduced many of the oceans' principal fishstocks nearly to extinction. UNCLOS, which was drafted before the effects of climate change were widely recognized, seeks to curtail these ocean threats through a variety of techniques, ranging from regional agreements on threatened fishstocks to both generalized and, in some cases, specific obligations on UNCLOS parties to avoid polluting the parties' territorial seas, their EEZs and the high seas.

Articles 192-206 of UNCLOS set forth a broad range of general obligations of the parties to prevent, reduce and control marine pollution, to cooperate on a global or regional basis, to notify other parties of imminent or actual damage to the oceans and to adopt contingency plans and provide technical assistance to developing countries in combatting marine pollution. Articles 207-211 and 213-221 contain more specific obligations with respect to pollution from land-based sources, seabed activities, ocean dumping and maritime vessels and the obligations of parties to enforce their respective laws and any applicable international rules and standards relating to such activities, including the enforcement obligations of "flag states," "port states" and "coastal states" with respect to vessels flying their flag, visiting their ports or transiting their waters.

However, UNCLOS treats atmospheric pollution more summarily. Article 212(1) requires parties to adopt laws and regulations to prevent, reduce and control pollution of the marine environment "from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation." Articles (2) and (3) require parties to take other necessary measures and to endeavor to establish global and regional rules, standards, practices and procedures with respect to "such pollution."

Article 222 provides that parties shall enforce the laws and regulations referred to in Article 212 against all vessels flying their flags and within their air space and take other actions to control atmospheric pollution "in conformity with all relevant international rules and standards concerning the safety of air navigation." The purpose of these provisions is clearly to require parties to regulate emissions from aircraft and marine vessels, which were seen in 1982 as the most significant sources of atmospheric pollution affecting the oceans.

Opposition to Ratification

UNCLOS's opponents have seized on Articles 212 and 222 to argue that UNCLOS requires the United States to comply with the dreaded 1997 Kyoto Protocol to the 1992 U.N. Framework Convention on Climate Change (the United States has ratified the Framework Convention but not the Protocol). As indicated above, this argument finds no support in either Article 212 or 222, which have no bearing on land-based GHG emissions from power plants, vehicles, industry, farms or buildings. However, if UNCLOS did require the United States to comply with such internationally recognized GHG standards as the Kyoto Protocol, it would presumably apply equally to the major developing countries, including China, India, Brazil, Indonesia and South Africa, that have no such obligations under the Kyoto Protocol but are parties to UNCLOS and whose absence from GHG obligations was cited by Kyoto opponents (Democrats as well as Republicans) as the reason for opposing U.S. ratification of Kyoto. If UNCLOS actually required such countries to reduce their total GHG emissions, the principal stated reason for U.S. objection to Kyoto would be vitiated.

What UNCLOS could require the United States to do is accelerate its efforts to bring aircraft and marine vessels under the still embryonic GHG regulatory program being developed (in the face of unrelenting corporate opposition) by the Environmental Protection Agency. The European Union (EU) has already voted to expand its GHG cap-and-trade system to include emissions from international aircraft, an action that the United States has vigorously opposed. UNCLOS could require the United States to at least propose alternative measures for reducing aircraft GHG emissions, rather than simply opposing the EU program. More broadly, however, the 1992 Framework Convention already imposes an obligation on the United States to make good faith efforts to reduce its GHG emissions to 1990 levels; rather than doing so, the United States has failed to put in place any comprehensive nationwide GHG-reduction program and has permitted its total GHG emissions to increase by approximately 10 percent since 1992. UNCLOS is, unfortunately, unlikely to change that overall posture or to affect how, if at all, the United States finally succeeds in controlling its GHG emissions and their long-term impact on the Earth's oceans, atmosphere, land mass and inhabitants.

Unable to find any substantive basis to oppose ratification of UNCLOS, the Convention's opponents have resorted to an alleged dilution of U.S. "sovereignty" as the basis for their opposition. This is a specious objection, a last refuge for those who assert "American singularity" as a reason to place the United States beyond the reach of international law while holding other nations to that law. As Secretary Clinton noted in her testimony, the United States is a party to hundreds of international treaties and conventions that limit United States freedom of action in exchange for corresponding commitments from other nations. Not only does the United States, with the second longest coastline and the largest navy in the world, have far more to gain from UNCLOS than most other states, but the United States is the only nation with a guaranteed permanent seat (and effective veto power) on the Council of the ISA once the United States ratifies UNCLOS.

Conclusion

One can only hope that, when the dust clears from this fall's presidential and congressional elections, at least some of the 34 Republican senators who currently oppose UNCLOS will respond to either the environmental, national security or economic opportunity arguments in favor of ratification and permit the United States to begin to play the constructive role reserved for it in the Convention. While it is ironic that our nation's failure to limit our GHG emissions has contributed to the reasons that ratification is now attractive to some, UNCLOS will provide only modest support for the genuine U.S. climate change policy that is necessary if we are to preserve the Earth's oceans in the condition that has nurtured human life and civilization. That effort will require the support of those most likely to benefit economically from UNCLOS, and the Obama administration and the environmental community should make clear that any support for Artic or deep seabed mining by U.S. firms under UNCLOS must be matched by those firms' support for a comprehensive program to protect the oceans by limiting our nation's GHG emissions.


Stephen L. Kass is a partner and a co-director of the environmental practice group at Carter Ledyard & Milburn and an adjunct professor of international environmental law and human rights at Brooklyn Law School and NYU's Center for Global Affairs.

Reprinted with permission from the August 31, 2012 edition of the New York Law Journal © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.


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