Saturday, September 1, 2007

LOST is a Backdoor for the Kyoto Protocol

The Kyoto Protocol is a United Nations treaty that requires party countries to limit their emissions of greenhouse gases, which are thought to contribute to global warming. President Bill Clinton signed the treaty in 1997, but never submitted it to the Senate to be ratified. Both the Bush Administration and many Senators oppose the Kyoto Protocol because of concern that it is less demanding of countries such as China and India – both substantial sources of greenhouse gases – and would unduly strain the American economy.

The Law of the Sea Treaty has been described by President Clinton as “the greatest environmental treaty of all time.” The question occurs: Could LOST be used as a means of compelling the United States to comply with the requirements of the Kyoto Protocol without America formally becoming party to the latter accord?

The Proponents’ Claims:

Admirers of the Law of the Sea Treaty have different attitudes towards the Kyoto Protocol. President Bush has adamantly refused to seek its ratification. Many U.S. businesses – particularly in the energy sector – have historically been opposed to the Protocol, fearing its potentially high costs. Some corporations, however, have taken pains to adopt a more supportive attitude towards capping greenhouse gas emissions in recent years.

Environmentalists, however, are insistent on the necessity of U.S. compliance with Kyoto’s limits. They see in the myriad LOST obligations to protect the marine environment commitments that can be used to curb emissions on land and in the air that could adversely affect the oceans and their ecosystems. As Thilo Bode, Greenpeace International Executive Director, noted in 2000: “Global warming is likely to have a big impact at sea…Solving the environmental problems facing the oceans…is one of the greatest challenges facing humankind…No single action or region can do this alone: it will require comprehensive international cooperation as required by the United Nations Convention on the Law of the Sea.”

The Facts:

  • LOST’s provisions and mandatory dispute resolution mechanisms would give environmental activists and like-minded governments (notably those in Europe) both grounds and venues to bring action against the United States for violating the Kyoto Protocol – even though America is not a party to that accord.

  • For example, LOST Article 194 requires states parties to “take…all measures consistent with this Convention that are necessary to prevent, reduce, and control pollution of the marine environment from any source.” This provision goes on to require that such measures address “all sources of pollution of the marine environment…including those from land-based sources, from or through the atmosphere, or by dumping….”

  • LOST Article 212 goes further, requiring parties to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere….” The sweeping nature of this commitment suggests that the associated implementing legislation will be enormously comprehensive, hugely costly to conform to and wildly controversial in this country.

  • Matters would be made vastly worse under LOST by the further requirements of the “Precautionary Principle” – a legal tenet that bars any initiative unless it can be proven to do no harm. As the International Seabed Authority’s Regulation 31 puts it: “In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach….”

    The prospect that U.S.-generated greenhouse gases will adversely affect the environment – the premise upon which Kyoto is based – could be used to justify action against many shore-based American companies, government entities and military activities (e.g., ballistic missile launches).

  • American opponents of the Kyoto Protocol should be under no illusion: U.S. accession to the Law of the Sea Treaty risks, at a minimum, embroiling this country in legal actions that could effectively require its compliance with the terms of that accord – even in the continued absence of Senate advice and consent to the latter’s ratification.

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