On June 14, 2012, the Senate Committee on Foreign Relations held hearings with senior military leaders and former government officials regarding the United Nations (U.N.) Convention on the Law of the Sea (CLOS).  These hearings presented critical evidence and discussions that nations which have ratified/acceded to UNCLOS should incorporate into decisions regarding whether or not to remain in UNCLOS and, if so, how the Convention may be amended in the future.  For the United States, the hearings clearly illustrated why a number of conservatives are concerned about this treaty.

During the hearings, Republican Senator James Risch from Idaho provided key points against UNCLOS.  Risch's first important point is that UNCLOS has -- to date -- failed to adequately resolve maritime disputes between China and its neighbors in the South China Sea, thereby illustrating that the Convention is not the successful means of maritime dispute resolution that its proponents hold it out to be.

A number of other important points were raised by Senators Risch, Jim DeMint (R-SC), and Mike Lee (R-UT), as well as by former Secretary of Defense Donald Rumsfeld (who testified in the "former government officials" session), such as the wealth distribution provisions of UNCLOS (which may serve as a disturbing precedent on how we approach space-based resources) and whether the royalty components of UNCLOS serve to create an effectively sovereign international body.

But Risch identified another potential fatal flaw with UNCLOS: is Article 222 an effective backdoor clause allowing international environmental agreements (including the Kyoto Protocol and its potential successors) to be enforced upon UNCLOS signatories?  A spirited discussion on this point ensued among Risch, Senator John Kerry (D-MA, and the chairman of the committee), and John Bellinger (a witness during the "former government officials" session and a former legal adviser to the White House and State Department in the administration of President George W. Bush).

Article 222 of UNCLOS reads as follows (emphasis added):

Article 222: Enforcement with respect to pollution from or through the atmosphere

States shall enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary 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 or through the atmosphere, in conformity with all relevant international rules and standards concerning the safety of air navigation.

The key phrase at issue reads as follows: "States ... shall adopt laws and regulations and take other measures necessary 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 or through the atmosphere."

The key word at issue is "applicable."

Bellinger and Kerry appeared to argue that while the Kyoto Protocol and similar existing/future international environmental agreements are of a nature to be captured by the meaning of UNCLOS Article 222, the U.S. under UNCLOS would not be bound to implement such other agreements.  It appeared that Risch rejected such an interpretation.  Bellinger noted that the word "applicable" has been defined in the context of other international agreements to have a meaning consistent with his position.

This author agrees with Sen. Risch.  Article 222 of UNCLOS is a major concern.  A plain standalone reading of Article 222 leads to the conclusion that signatories to UNCLOS are legally bound to implement any and all international environmental agreements that relate to atmospheric pollution (which clearly include any agreements related to greenhouse gases).  In order for implementation to occur, the country in question must first ratify/accede to the agreement.

Bellinger's and Kerry's counter-argument against such an interpretation does not make sense.  Why would such a provision need to be made in UNCLOS that tells UNCLOS participants that they must adhere to and implement other agreements they have already signed?  Would not the other agreements in question already contain such implementation language in their texts?  In other words, why would UNCLOS feel the need to speak on such external agreement implementations if Article 222 is to be interpreted as per what Bellinger and Kerry perceive?  Such an interpretation makes this portion of Article 222 redundant; it would be telling UNCLOS signatories they must implement other agreements they have already agreed to implement.

Consequently, a more reasonable interpretation of Article 222 is that it is intended to force UNCLOS participants to implement any and all other international agreements related to atmospheric pollution, whether the UNCLOS participants have already agreed to implement the other agreements or not. Article 222 thus serves as a "catch-all" clause acting to funnel the mandatory implementation of all other atmospheric pollution related international agreements through UNCLOS.

Kerry appeared to argue that Article 297 of UNCLOS negates these types of concerns.  One can find Article 297 in full here.

It is not clear how Article 297 negates the potentially troubling interpretation of Article 222 discussed above.  The concerns regarding Article 222 by Sen. Risch are valid and require a detailed examination of this and other potential backdoor provisions in UNCLOS.