Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention

Abstract

Although the Kyoto Protocol has been viewed as a milestone in international climate change policy, its potential to stem the tide of environmental degradation may prove illusory on two fronts: first, the U.S. has declined to become a Party to the Protocol; and second, even full implementation by all industrialized States would only modestly affect atmospheric concentrations of greenhouse gas emissions. In this context, climate change litigation in national and international fora is emerging as an alternative means by which to hold States and private actors accountable for climate change damages. The United Nations Convention on the Law of the Sea (UNCLOS) is a promising instrument through which such action might be taken, given its broad definition of pollution to the marine environment and the dispute resolution mechanisms contained within its provisions. The paper outlines the history and content of UNCLOS, examines potential harms that could give rise to action under the Convention, and discusses the likely legal barriers to bringing and proving such claims. The failure of the world’s major greenhouse gas emitting nations to seriously address climate change has made litigation unavoidable. As such, UNCLOS may prove to be a primary battle- ground for climate change issues in the future.