If the U.S. joins LOST, the U.S. would become environmental lawsuit target #1.

At today’s Senate Foreign Relations Committee hearing on the Law of the Sea Treaty (LOST), a false narrative was presented, and must be corrected.

Supporters of this American sovereignty eroding treaty insist that if the U.S. joins LOST it will not require the U.S. to enforce treaties to which the U.S. is not a party, such as the Kyoto Protocol on climate change, thus the U.S. will be exempted from environmental litigation.


The Chairman, unfortunately, at today’s hearing constructed this highly misleading “straw man” argument.  He is rebutting an argument that has never been made by those who oppose LOST.  

Neither I nor anyone else has argued that the U.S. would be subject to environmental lawsuits for environmental treaties the U.S. has not signed.  Rather, the real concern is that baseless and costly environmental lawsuits brought under LOST may be based on much broader areas of international law than just those treaties that the U.S. has not ratified, including internationally recognized norms and standards.

For example, Article 213 of UNCLOS, titled “Enforcement with respect to pollution from land-based sources” would require the U.S. to adopt laws and regulations to “implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.”

So, if another country thinks that the U.S. has failed to comply with Article 213 in regard to, say, internationally accepted standards on carbon emissions, that country may sue the U.S.—regardless of whether the U.S. is a party to the Kyoto treaty.  Other countries could also point to U.S. commitments in the U.N. Framework Convention on Climate Change (which the U.S. is a party to) or other universally accepted environmental standards such as the “no harm” rule as the basis of climate change lawsuits against the United States.  The U.S. would become environmental lawsuit target #1, and crippling costs to the U.S. economy would result.

The threat of baseless environmental lawsuits is very real, and no amount of straw man arguments can prove otherwise.  International environmentalists, academics, and lawyers have already made clear their intention to bring such lawsuits immediately against the U.S. should we join LOST.  We should take them at their word, and reject LOST.