Overlapping international disaster law approaches with international environmental law regimes to address latent ecological disaster.
INTRODUCTION I. SYNERGIES BETWEEN INTERNATIONAL DISASTER LAW AND INTERNATIONAL ENVIRONMENTAL LAW II. INTERNATIONAL AND REGIONAL LEGAL RESPONSES TO EXCESS NUTRIENTS AS A CASE STUDY OF A LATENT ECOLOGICAL DISASTER A. Pre-Global Programme of Action Agreements and Excess Nutrients 1. 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris Convention) and Protocol 2. Law of the Sea--Article 207 on Land-Based Pollution 3. Regional Cooperation Agreements on Land-based Source Pollution. B. Washington Declaration and Global Programme of Action on Excess Nutrients C. Post-Global Programme of Action Agreements and Excess Nutrients 1. Regional Protocols 2. OSPAR Convention Recommendations 3. Action Plans a. Baltic Sea Action Plan b. Black Sea Strategic Action Plan c. International and Regional Land-Based Pollution Reduction Schemes III. OVERLAPPING IDL AND IEL REGIMES TO ADDRESS LATENT ECOLOGICAL DISASTERS A. Reframing Land-Based Source Pollution Problems as Disaster Risk Reduction Priorities to Overcome Existing Bystander Effect B. Applying Disaster Risk Reduction Strategies to Respond to Excess Nutrients CONCLUSION
In 1598, Florio wrote in the Worlde of Wordes that disaster must be defined as "mischance" or "ill lucke." (1) And in 1875, Whitney wrote that "[disaster is etymologically a mishap due to a baleful stellar aspect." (2) Both of these references allude to "disaster" as something driven by external forces like fate or the stars. During most of human history, we have imagined "disaster" as something that happens to us simply by being in the wrong place at the wrong time. But these ideas perpetuate the illusion that we operate independently from our environment, rather than recognizing humans as active creators of our own environmental contexts. Florio and Whitney's concepts of "disaster" ignore the part that human systems play in creating "disasters"--some of which are short-lived, like tropical storms, and others, such as gradual toxic releases, that play out over the course of decades. As societies, we respond to immediate catastrophes like storms with disaster relief and with some effort to avoid future disasters through early warning systems; however, we overlook the impending signs of tipping points associated with latent ecological hazards.
This Article proceeds from the premise that ecological hazards and vulnerability are an inevitable part of life. (3) The existence of these hazards, however, need not culminate in disaster due to the failure to manage incremental risk. Disasters only happen when the vulnerability of a community to a hazard or risk exceeds the various capacities of a community to respond to a given hazard. (4) The disciplines of international environmental law (IEL) and international disaster law (IDL) were both created to provide socially mediated responses to hazards, vulnerability, and risks. However, these disciplines proceed down separate and distinct tracks in terms of how they respond to the preconditions for disaster. IEL takes a long-term view based on creating incremental and cooperative responses to environmental threats. IDL, on the other hand, focuses on targeted rapid risk reduction in order to avoid human suffering and property damage, including damage to environmental amenities. The two sets of practices rarely intersect.
This Article proposes that IEL has much to learn from the practices of IDL regarding building robust networks of practitioners capable of implementing contingency plans to reduce community vulnerability by systematically managing long-term hazards. More concretely, this Article will examine as a case study the growing global problem of ecological "dead zones" (discrete areas of low-oxygen concentration) where long-term drivers, such as unmanaged human agricultural activities and human waste disposal, are rapidly destroying living coastal resources, including fisheries. (5) This Article will compare the current legal approaches to managing the known hazard of excessive nutrients in watercourses, particularly marine waters, to an approach that would privilege rapid risk reduction when ecological thresholds are either being approached or have been exceeded. The Article concludes by suggesting that applying concepts of systematic disaster risk reduction to the implementation of international environmental legal regimes may enhance the effective domestic implementation of IEL. Understanding the danger of exceeding ecological thresholds demands greater systematic legal attention at both the regional and national levels. (6)
1. SYNERGIES BETWEEN INTERNATIONAL DISASTER LAW AND INTERNATIONAL ENVIRONMENTAL LAW
Public international law exists to address coordination challenges between sovereign states ranging from implementing global trade rules to managing natural resources from commons such as the high seas. Through treaty mechanisms and international institution building, States acknowledge that the ability to respond to specific crises often exceeds the capacity of any one state to act and requires actions by multiple states to address and resolve a known problem, such as the production and distribution of ozone-depleting substances. IEL and IDL are two of the youngest sub-disciplines of public international law designed to coordinate state responses to events that exceed the response capacity of any one state. Until recently, both sub-disciplines have been largely reactive. States have generally negotiated IEL frameworks to manage responses to national activities that have transboundary impacts on health and the environment, as reflected in the recent Minamata Convention on Mercury, the Montreal Protocol on Ozone Depleting Substances, or the Convention in Trade of Endangered Species. (7) Likewise, States have negotiated IDL frameworks, such as the Kyoto Customs Convention and the Tampere Telecommunications Convention, to respond to known coordination problems associated with disaster responses. (8)
Even though States negotiate both IEL and IDL agreements to address coordination solutions to address situations that exceed the capacity of any single state to act, IEL and IDL, as public international law sub-disciplines, have historically operated in separate governance tracks with little exchange of ideas between the two disciplines. At the international scale, IEL practitioners look to the United Nations Environmental Programme (UNEP) and to the secretariats of the various multilateral treaties for guidance. At the national scale, various ministries or departments of the environment, conservation, fisheries, or agriculture domesticate IEL obligations and principles. IDL practitioners rely upon very different institutions and look towards institutions such as the United Nations Human Rights Bodies, the international Federation of the Red Cross, the International Customs Organization, or the World Food Programme. Domestically, emergency management agencies implement IDL principles and law. As a result, while both disciplines strive to identify and manage a variety of hazards, ranging from depletion of endangered species to a lack of emergency supplies during an emergency, there is little cross-pollination of ideas between the disciplines of IDL and IEL. Institutionalized into separate regimes by states, IEL and IDL rarely overlap in practice, even though there may be opportunities for interactions between the regimes that can achieve positive outcomes for both environmental and disaster reduction objectives. (9) For example, there is increasing recognition of how restoring habitats such as mangrove forests can also provide disaster risk reduction by providing tropical storm barriers. Until quite recently, these types of win-win interactions between the disciplines of IEL and IDL, where environmental work is undertaken to enhance disaster risk outcomes, have been relatively uncommon.
One potential reason for the current lack of coordination between IDL and IEL practitioners is the concept of expected reaction time in each discipline. States have conceived of IDL as a legal regime designed to coordinate emergency response. Until the more recent policy efforts to mainstream disaster risk reduction, (10) IDL has focused almost all of its attention on coordinating international disaster relief efforts. (11) Obligations must be fulfilled within hours or days to comply with the objectives of much of existing IDL law, since policymakers measure the effectiveness of IDL in terms of alleviating immediate human suffering and protecting critical infrastructure necessary for disaster response. For the most part, disaster relief law, the most developed part of IDL, will not involve ongoing relationships between states because responses under IDL are to single crises such as an earthquake, a cyclone, or a nuclear disaster.
What this means in practice is that IDL practitioners remain focused on short-term objectives where experience with disaster management demonstrates a need for better coordination of early warning systems and better delivery of disaster relief to disaster sites. In many respects, until the recent emphasis on disaster risk reduction, IDL has been largely perceived as a technical discipline focused on eliminating barriers to disaster relief coordination and ensuring that delivery of disaster relief respects human rights. IDL practitioners have focused their resources on relief and recovery. The discipline has not addressed political decision-making that creates the conditions for a future disaster, such as decisions to deforest land to support agricultural activities. Because the anthropogenic causes of disaster have been considered outside the purview of IDL practitioners, little attention has been given to mainstreaming fundamental IEL principles such as the precautionary principle into IDL practice, even though this principle might form a basis for urging states to either take or avoid certain actions to avert long-term disaster. (12)
On the other hand, IEL works across longer time frames and focuses on building ongoing collaborative partnerships that typically last for years or decades and include regular conferences or meetings of the parties. IEL treaties tend to promote long-term investments in shared management schemes geared to change behavior by enhancing opportunities for coordination. (13) Even for phase-out regimes that select target years for ending production of certain ozone depleting substances, such as the Montreal Protocol, deadlines almost always contemplate time for transitioning between production methods. (14) Only recently, with legal tools such as the voluntary Aichi Targets negotiated under the Convention on Biological Diversity, have States expressed an urgency to achieve certain defined objectives by setting short time frames for achieving defined goals. (15) To some degree, the discipline of IEL, unlike IDL, has endeavored to influence political decision-making that contributes to the creation of conditions for disaster. As a result, IEL has become in some contexts a heavily contested discipline, contributing to additional implementation delays. (16)
Even though IDL and IEL currently operate in different temporal paradigms, an important question for public international law is whether opportunities exist for these disciplines to inform each other's practice and perhaps operate more self-consciously as "overlapping regimes" capable of synergistically reducing community exposures to disaster risks while also resolving complex environmental challenges in a timely manner. (17) Can aspects of existing IDL practice focused on immediate coordination improve outcomes for IEL practitioners who find themselves regularly stymied by a lack of political will that is often manifested in the under-implementation of treaty obligations?
Excess nutrients--particularly excess nitrogen and phosphorus--are known environmental hazards. The problem of excess nutrients offers an interesting case study of how applying concepts of disaster risk reduction to IEL regimes might enhance effective domestication of IEL obligations. The section that follows describes the existing international legal framework for managing land-based threats posed by excessive nutrients and this framework's failure over the course of several decades, to address the cumulative and sometimes transboundary issues of nutrient overloading.
While there exist numerous potentially compelling explanations for why IEL has failed to be effective in reducing nutrient overloading, such as the presence of powerful national agricultural lobbies that resist domestic regulation, two explanations for the ongoing failure to respond to the quiet crisis of land-based pollution highlight important divergences between the regimes of IDL and IEL. First, unlike a hypothetical explosion of a fertilizer factory that would trigger a national disaster response, there is a lack of perceived national urgency in addressing incremental increases in fertilizer use on crops. If anything, increases in agricultural fertilizer use have been embraced as a solution to underproduction on lands. (18) This translates into a larger political will issue, where political decision-makers consciously ignore the visible impact of excess nutrients on waterways in favor of satisfying immediate constituent demands such as delivering short-term food security. The short-term thinking associated with the harvest cycle or the quarterly business cycle ignores long-term silent threats. Second, there appears to be a "bystander effect": In the face of an incident, the more parties simultaneously observe the incident, the longer it will take for any one of the parties to react. (19) This institutional "bystander effect" may explain the recurring lack of decisive action to curb excess nutrient use in spite of the problem's acknowledgment at numerous governance levels. Parties observing phenomena such as coastal hypoxia and eutrophication may fail to act because they believe that a diffusion of responsibility limits their necessity to act, particularly when uncertainty exists regarding what suite of actions will effectively remedy the situation without imposing substantial costs on the part of the intervening party. Compounding the bystander effect, States may also succumb to "pluralistic ignorance," where they do not act because other states are not acting either. (20) In the final portion of this Article, it will be argued that applying existing IDL practices when implementing IEL obligations may overcome some of the inertia and response delay associated with the "bystander effect."
II. INTERNATIONAL AND REGIONAL LEGAL RESPONSES TO EXCESS NUTRIENTS AS A CASE STUDY OF A LATENT ECOLOGICAL DISASTER
It is axiomatic that one can have too much of a good thing. This is the case with the "greening" of world waterways through the largely unintentional release of chemical fertilizers and organic biomass. The agricultural industry is one of the primary sources of nutrient loading, particularly after the onset of the "the Green Revolution." During this time, the industry introduced large amounts of synthetic fertilizers consisting of nitrogen, phosphorus, and ammonia onto lands in order to increase yield for high-yield variety seeds. (21) However, the ongoing agricultural practice of applying large amounts of fertilizers poses a sizable disaster risk for certain coastal regions located in close proximity to agricultural fields such as the Gulf of Mexico. Annually, farmers and other industries in Cambodia, China, Malaysia, Thailand, and Vietnam deposit 600,000 tons of nitrogen into the rivers. (22) Due to the growing global population and the food supply necessary to feed it, UNEP estimates that by 2050 an estimated 2.4-2.7 fold increase in nitrogen and phosphorus-triggered eutrophication will have notable impacts on terrestrial, freshwater, and coastal ecosystems. (23) In the United States, a surge in the planting of com for ethanol to meet biofuel policy targets is anticipated to increase nitrogen pollution by over one third in the already impacted Mississippi River Basin by 2022. (24)
The possibility for a latent ecological disaster associated with excess nutrients has manifested in the increasing incidents of coastal hypoxia over the last three decades. Hypoxia results from a reduction in dissolved oxygen in the water to levels below 2 mg/L, which effectively "suffocates" marine life. (25) Some coastal areas of the globe have natural cycles of hypoxia, but the sharp increase in hypoxic events in shallow coastal and estuarine waters is now directly linked to anthropogenic nutrient loading into waters. (26) When algal blooms occur due to excess nutrients in coastal waters and the algae subsequently die, algae sink to the bottom and decompose. This process uses up dissolved oxygen in the water and then, in combination with the stratification of the water column, leads to a sustained deprivation of oxygen in the water column. (27) The lack of oxygen in an oxygen-limited habitat has "major consequences." (28) Researchers have identified between 400 and 550 "dead zones," and they argue that hypoxia is as great a threat to coastal fisheries as overfishing and habitat loss. (29) In addition to direct fish deaths attributed to hypoxia, fish exposed to hypoxic conditions have reduced reproduction rates, which has serious implications for major fishery areas exhibiting hypoxia, including the Baltic Sea, the Black Sea, the Gulf of Mexico, and the East China Sea. (30)
Researchers also identify excess local nutrients as a potential driver in regional coastal acidification. (31) While there are natural cycles of hypoxia in some regions, the primary source of the nutrients fueling the recent increase in hypoxia is from agricultural industry runoff. (32) Complicating matters, hypoxia driven by nutrient loading may also be exacerbating the already present impacts of ocean acidification. An experiment on bay scallops found that the combined stressors of low oxygen and acidification during early stages of scallop development were synergistically worse than would have been predicted by examining the impacts of each stressor independently. (33)
International and regional law have addressed the issue of excess nutrients in the context of land-based pollution agreements, and the remainder of this section of the chapter details a broad range of international and regional agreements negotiated over several decades to respond, in part, to the problems associated with excess nutrients. Two recurring themes are noteworthy. First, nutrient pollution is generally not regarded as a high-threat risk. In general, obligations to reduce nutrients tend to be unquantified, and there are few mechanisms, with the exception of some very recent agreements by the Baltic Sea States, for states to hold each other accountable for reducing nutrient loads. Second, only a handful of the agreements specifically address activities of the source industries that contribute the most to the problem of excess nutrients. The discussions of the conventions are organized below into three categories. The first set includes agreements concluded before the Global Programme of Action on Land-Based Pollution. The second category covers the Global Programme of Action. The third category covers recent regional efforts, such as the Baltic Sea Plan.
A. Pre-Global Programme of Action Agreements and Excess Nutrients
1. 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris Convention) and Protocol
Negotiated shortly after the Stockholm Convention on Human Development and the Environment in 1972, the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris Convention) and Protocol is one of the earliest documents to identify nutrient pollution problems. It called upon states in certain areas of the Atlantic Sea, Arctic Sea, Baltic Sea, and Mediterranean Sea to "pledge themselves to take all possible steps to prevent pollution of the sea, by which is meant the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as hazards to human health, harm to living resources and to marine ecosystems, [and] damage to amenities or interference with other legitimate uses of the sea." (34) While the treaty did not name specific land-based industries contributing to marine pollution, such as wastewater treatment plants or the agricultural industry, it did identify watercourses and coastal pipelines as potential conduits for pollution. (35) Parties to the treaty agreed "to limit strictly" the introduction of certain substances listed in Annex A including phosphorus. (36) In order to achieve these objectives, States "shall, as appropriate" design "specific regulations or standards governing the quality of the environment, discharges into the maritime area, such discharges into watercourses and emissions into the atmosphere as affect the maritime area, and the composition and use of substances and products" with time limits for achieving the elimination or reduction of pollution. (37) The Convention never specifically mentioned nitrogen pollution. Eventually, the parties to the Paris Convention replaced this Convention with the Convention for the Protection of the Marine Environment of the North-East Atlantic (OPSAR Convention). (38)
2. Law of the Sea--Article 207 on Land-Based Pollution
The drafters of the U.N. Convention on the Law of the Sea (UNCLOS) recognized the significance of the land-sea pollution linkage when they negotiated Article 207. (39) This Article, however, offers wide latitude for states to comply with the treaty obligation without providing much guidance beyond referring states to a body of international standards that largely did not exist at the time of the UNCLOS negotiations. Under UNCLOS, States "shall adopt laws and regulations to prevent, reduce and control pollution ... from land-based sources, including rivers, estuaries, pipelines and outfall structures" that take into account international practices and "take other measures as may be necessary" to address land-based pollution. (40) In addition to responding nationally, States "shall endeavor" to harmonize policies regionally and to establish "global and regional rules ... taking into account characteristic regional features, the economic capacity of developing states and their need for economic development." (41) Post-UNCLOS, States responded to the obligations to reduce land-based pollution largely by negotiating regional cooperation agreements.
3. Regional Cooperation Agreements on Land-based Source Pollution
Many of the regional cooperation agreements negotiated after UNCLOS and the Paris Convention are based on language and approaches drawn from the 1985 Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources, drafted under the auspices of UNEP. (42) For example, most of the regional land-based protocols offer some language about domesticating obligations to reduce land-based pollution and responding to pollution emergencies by either individually or jointly developing and promoting "national and international contingency plans for responding to incidents of pollution from land-based sources." (43) A number of Conventions and Protocols incorporated a "black list" of substances that must be eliminated and a "grey list" of substances that must be strictly limited or reduced; these lists replicate the annex-based approach developed in the Montreal Guidelines. (44) Nitrogen, as an excess nutrient, was typically not included in these lists. (45) Instead, a catch-all category for the grey list covers "substances which, though not producing toxic effects, may become harmful because of the concentrations or quantities in which they are discharged, or which are liable to reduce amenities seriously or to endanger human life or marine organisms or to impair other legitimate uses of the sea." (46)
UNEP administers a number of treaties, including the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (Athens Protocol). (47) The Athens Protocol was negotiated to cover "polluting discharges" including "run-off." (48) Protocol parties were expected to "strictly limit" phosphorus, as well as more broadly any "substances which have, directly or indirectly[,] an adverse effect on the oxygen content of the marine environment, especially those which may cause eutrophication." (49) Taking into account the "local ecological, geographical, and physical characteristics, the economic capacity of the Parties and their need for development, the level of existing pollution and the real absorptive capacity of the marine environment," parties were expected to negotiate shared standards and guidelines. (50) Specifically, as they became aware of pollutants, parties were expected to institute "the control and progressive replacement of products, installations and industrial and other processes causing significant pollution of the marine environment." (51) Other UNEP treaties, such as the Abidjan Convention for West and Central Africa, required parties to formulate protocols, measures, procedures, and standards in order to "prevent, reduce, combat and control pollution from all sources." (52) The Nairobi Convention for East Africa included largely the same general substantive obligations as the Abidjan Convention. (53)
In addition to the UNEP administered conventions, there are a number of regional agreements on land-pollution that are independently administered. Most of these agreements provide states with little guidance beyond a call to reduce pollution. For example, State parties to the Jeddah Convention bordering a semi-enclosed sea concluded a regional treaty similar to other general regional seas treaties that require states to reduce pollution with no discussion of nutrients. (54) Another group of States negotiated the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution in 1978, requiring them to create national standards, laws, and regulations to implement the Convention. (55) Subsequently, the Kuwait Convention parties negotiated a protocol for eliminating and reducing land-based source pollution and agreed to "progressively develop and adopt" a set of regional regulations to regulate land-based sources including agriculture. (56)
In South America, the Lima Convention illustrates a similar general effort to tackle marine pollution and also included the negotiation of a specific protocol to tackle land-based sources with an indirect reference to excessive nutrients. (57) The Protocol creates an obligation for states to "endeavour to formulate and progressively adopt, acting individually or jointly as appropriate, in co-operation with the Executive Secretariat or another competent international organization, as the case may be, rules, standards and common practices and procedures dealing with ... control of products ... causing significant pollution from land-based sources." (58) The Protocol further requires states to "endeavour progressively to reduce in their respective zones ... pollution from land-based sources caused by the substances," including "substances which have, directly or indirectly, an adverse effect on the oxygen content of the marine environment, especially those which may cause eutrophication." (59) Discharges of such substances are subject to "self-monitoring and control" by the national authorities. (60)
In Eastern Europe, parties negotiated both the Black Sea Convention and an annex-based Protocol requiring states to prevent and eliminate substances listed in Annex 1 and to reduce and eventually eliminate substances listed in Annex II. (61) Nutrients are listed in Annex II. (62) Parties also agreed to "take into consideration" the possibility of cooperating on reducing "the pollution load from agricultural and forest areas affecting the water quality of the marine environment of the Black Sea ... in order to comply with the accepted concentrations of substances and matter listed in Annexes I and II to this Protocol." (63) At the time the Protocol was concluded, no specific caps on quantitative concentrations of nutrients were negotiated. (64)
Finally, in the Baltic Sea region, home to the world's largest dead zone, (65) States negotiated the Convention for the Protection of the Baltic Sea Area (Helsinki Convention) in 1974, and then revised the treaty in 1992. (66) Parties further agreed to "co-operate in the development and adoption of specific programs, guidelines, standards or regulations concerning ... inputs to water and air, environmental quality, and products containing harmful substances and materials and the use thereof." (67) States listed nitrogen and phosphorus as priority substances for "preventative measures" because of their tendency to anthropogenically cause eutrophication. (68)
Each of these agreements relied upon its member states to implement domestically general pollution prevention measures with little specificity as to the content of the measures. As drafted, each of the protocols contributed in some part to additional delays in implementation by leaving negotiations for a future date on region-wide rules and standards. The early agreements were largely "agreements to agree," reflecting both a lack of urgency on the part of states to act as well as an unwillingness to be the first to act in a situation of diffuse responsibility. In part because of a lack of an effective strategy to constrain economic sectors, little measurable progress was made on reducing excess nutrients and coastal eutrophication incidents caused by excess nutrients across many of the regions that had concluded pollution reduction agreements.
B. Washington Declaration and Global Programme of Action on Excess Nutrients
In spite of shared understandings that land-based pollution was a threat to the marine environment, as reflected in the numerous agreements described above, progress continued to be slow in harmonizing pollution prevention and reduction policies relevant to excess nutrients. In 1995, 108 states stated in the Washington Declaration "their commitment to protect and preserve the marine environment from the impacts of land-based activities" by "setting as their common goal sustained and effective action to deal with all land-based impacts upon the marine environment," including sewage and excess nutrients. (69) States called for a "Global Programme of Action" (GPA) and agreed to "developing or reviewing national action programmes within a few years on the basis of national priorities and strategies" and "taking immediate preventive and remedial action, wherever possible, using existing knowledge, resources, plans and processes." (70) In spite of the Declaration's language calling upon states to take "immediate preventive ... action," the reactions by states operating either independently or with regional partners have been slow due to limited financing and limited political will to engage the hydra-headed problem of land-based pollution. (71)
The "national programmes of action" provided for under the Washington Declaration are expected to identify problems, prioritize actions, select management objectives and strategies, review effectiveness of strategies, and provide for proper financing and enforcement. (72) Regarding sewage treatment, states should have proper management of sewage flows and implement, where possible, no-water or low-water solutions to avoid wastewater. (73) Regarding nutrient overloading, states are expected to implement "regulatory measures, economic instruments and voluntary agreements, to control anthropogenic sources of nutrients" affecting areas experiencing eutrophication by managing for sewage, employing "best environmental practice" in "agriculture and aquaculture," and "best environmental practice, best available techniques, and integrated pollution and prevent control in industrial operations." (74) The GPA further urges states in relation to excess nutrients to regionally establish "common criteria for the identification of existing and potential problem areas," identify areas where pollution is likely to be caused directly or indirectly, identify places for priority action, establish shared means for calculating nutrient inputs, and develop measures to reduce nutrient inputs particularly for the agricultural sector. (75)
The output of the GPA program has been sub-optimal. In 2006, states met at an intergovernmental meeting to review the implementation of the Global Programme of Action. (76) The conclusion of the review was to encourage "soft law" action plans for states that lack full-fledged cooperation with neighbors and binding protocols for states with a long history of cooperation. (77) The authors of the review report suggested that, in theory, protocols would have the advantage of providing "precise standards which states are to meet." (78) While this may be true for international protocols such as the Kyoto Protocol with negotiated carbon reduction targets, this has generally not been the case for the protocols drafted to address land-based pollutants. Of the protocols addressing land-based pollutants, only the Cartagena Protocol has specific targets associated with domestic wastewater. (79) As of 2015, the only regional instruments to provide specific public targets for nutrients are the North-east Atlantic Environmental Strategy for OSPAR and the Baltic Sea Action Plan described below.
C. Post-Global Programme of Action Agreements and Excess Nutrients
The GPA raised global political awareness about the impacts of excess nutrients. This new awareness has been subsequently reflected in a variety of protocol amendments, new protocols, recommendations, and action plans. With the exception of the latest initiatives under the OSPAR Convention, the Cartagena Protocol and the efforts of Baltic States to formulate an action plan, very few of the post-GPA legal changes include quantitative targets for nutrient reduction, binding regulations on industry sectors, or specific best practices for tackling excess nutrients.
1. Regional Protocols
After the publication of the GPA, a number of existing protocols were amended and new protocols were created to respond to the call in the GPA to reduce pollution from sewage treatment and nutrient overloading. For example, in the amended Athens Protocol on the Mediterranean the parties recognized that land-based sources could include non-point diffuse sources. (80) Parties to the Athens Protocol agreed to undertake the development of action plans that would address key polluting sectors, including the fertilizer production industry, agriculture, animal husbandry, aquaculture, disposal of sewage sludge, and the treatment and disposal of domestic wastewater. (81) The action plans were intended to cover a number of substances, including both "compounds of nitrogen and phosphorous and other substances which may cause eutrophication" and "non-toxic substances that have an adverse effect on the oxygen content of the marine environment." (82) No quantitative commitments on reduction have been concluded under the Protocol.
The parties to the Jeddah Convention adopted a protocol giving priority to gradual elimination of "toxic, persistent, and biological accumulating inputs." (83) Referring to the Global Programme of Action, the Jeddah Protocol parties agreed that substances that contribute to eutrophication should be included as priority land-based pollution sources. (84) The Protocol provides for the negotiation of "national and regional work programmes" with "timetables" for implementation that are reviewed on a regular basis. (85) States had adopted a broad regional action plan in 1982, but this plan has not been updated to reflect the subsequently negotiated protocol. (86)
The recent Nairobi Protocol on Land-Based Sources for East Africa recognizes "diffuse sources" as a category of land-based pollution. (87) Parties are expected to "prevent, reduce, mitigate, combat or eliminate, as appropriate, the pollution load from diffuse sources, in particular, agricultural activities affecting the marine and coastal environment, (88) as soon as possible, from the date of entry into force" of the Protocol, parties should designate substances and activities that should be quantitatively regulated as well as provide "control and progressive replacement" of products causing significant pollution in the marine environment. (89) Categories of priority substances include both "nitrogen and phosphorous compounds and other substances that may cause eutrophication." (90) Although the Protocol appears to be in force for ten states, there does not appear to be any publicly available action plan on land-based pollution with specific targets. (91)
In the Caribbean region, States negotiated the 1999 Protocol Concerning Pollution from Land-based Sources and Activities (Cartagena Protocol) to support the Cartagena Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region. (92) Excess nutrients from sewage and agriculture are the second most important pollutant source category in the Caribbean region. (93) Like the revised Athens Protocol, the Cartagena Protocol identified phosphorus and nitrogen as key pollutants, domestic sewage and agricultural non-point sources as priority sources to control, and the propensity of a substance to cause eutrophication as highly problematic. (94)
Unlike other protocols in effect, the Cartagena Protocol included Annexes implementing a schedule for specific regionally based effluent limitations on domestic wastewater plus specific plans to reduce agricultural non-point sources. (95) In 2015, five years after the Protocol went into effect, states are required to have a plan that estimates the loading of agricultural runoff into waterways, identifies human health impacts, and reviews the administrative framework for managing non-point source. (96) Parties are expected to evaluate "best management practices" and to reflect on their effectiveness. (97) Under the Protocol, a Scientific and Technical Committee is assigned the responsibility of reviewing on a regular basis the specific objectives set out in the Protocol Annexes and determining the effectiveness of the measures including the socio-economic impact of measures adopted to implement the Protocol. (98) This Committee is empowered to advise on priority management measures. (99)
2. OSPAR Convention Recommendations
Replacing the Paris Convention, the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) calls upon parties to harmonize their policies and, "where appropriate," adopt time limits for completing action programs and measures. (100) In spite of the GPA drawing specific attention to the problem in 1995, the only mention of nutrients is an indication that the Commission shall "draw up ... when appropriate, programmes and measures for the reduction of inputs of nutrients from urban, municipal, industrial, agricultural and other sources." (101) The OSPAR Commission has initiated a number of nutrient-reduction recommendations that are not binding on the parties; (102) the Commission has also undertaken a number of studies and reports to support a harmonized approach to monitoring and assessment across a number of nutrient producing sectors. (103)
With the exception of Luxembourg, which did not support the recommendations until 2003, most states agreed to implement the recommendation. However, as of 2006, the results were less than encouraging. (104) While a number of the states made progress on halving their use of phosphorus, only Denmark achieved a halving of its nitrogen use. (105) Only the industrial sector in OSPAR countries has achieved nitrogen and phosphorus reductions. (106) Most of the countries provided no reason for their failure to achieve the nutrient reduction targets except for the Netherlands and Norway, which cited delay in implementing measures associated with agriculture and wastewater. (107)
Fifteen years after the GPA, the OSPAR States articulated another Commission-wide environmental strategy regarding eutrophication. (108) Part of the motivation for the strategy was concern that "effects of climate change and ocean acidification are apparent throughout the OSPAR maritime area and that pressures on the marine environment from climate change and ocean acidification are set to grow." (109) States set for themselves the goal of eliminating problematic eutrophication by 2020. (110) Specifically, states agreed to pursue a "target-based" and "source-based" approach. (111) At the national level, the State parties indicated their intention to implement fully the Marine Strategy Framework Directive, the Water Framework Directive, the Integrated Pollution Prevention Control Directive, the Nitrates Directive, and the Urban Waste Water Treatment Directive. (112) Until new nutrient reduction targets are set, parties are expected to reduce nutrient inputs independently in eutrophication problem areas by 50% relative to input levels in 1985. (113)
3. Action Plans
One of the goals for the GPA was to catalyze concrete action by states. While many of the regions described above are still contemplating what additional agreements they intend to enter into in order to implement the various protocols, the Baltic Sea and the Black Sea States have concluded "action plans" that reflect a greater level of urgency to act on nutrient reduction. As will be suggested in Part III, these two plans reflect an important development in IEL to approach longstanding ecological problems with a risk management perspective. In their action plans, Both the Baltic Sea and Black Sea States seem to recognize the long-term ecological dangers of continued coordination delays.
a. Baltic Sea Action Plan
The Baltic Sea is the "largest anthropogenically induced hypoxic area in the world." (114) In 2007, the State parties to the Helsinki Convention drafted the Baltic Sea Action Plan to specify regional goals with the objective of restoring good ecological health to the region by 2021. (115) On paper, the plan is excellent because it clearly delineates needs of various water bodies and state-by-state responsibilities--something lacking in most other regional plans. For example, the region designated as the "Baltic Proper" has received over the period of six years around 327,000 tons of nitrogen even though it can "absorb" a maximum of around 233,000 tons of nitrogen. States have agreed to reduce 94,000 tons of nitrogen with different provisional commitments for different states. (116) Unlike vague treaty language from the various conventions and protocols on land-based pollution, the Baltic Sea Action Plan provided that State parties would submit targeted national programs to the Helsinki Commission for assessment by 2010. (117) As of 2014, the targets for nutrient reductions had not yet been achieved. In fact, in the eutrophication study covering 2007-2012, the entire open Baltic Sea remained in a state of eutrophication. (118) Two additional areas that had been measured as meeting good water quality standards had become eutrophied. (119) The authors of the 2014 report observed that, even though nutrient input quantities had been reduced, the concentrations of nutrients in the waters had not declined. (120) More attention is needed to address open-sea nutrient loads. (121)
b. Black Sea Strategic Action Plan
In 1996, after the Global Programme for Action, the Black Sea States revisited the issue of land-based pollution and specifically recognized the challenge of eutrophication. (122) States agreed to develop a basin-wide strategy including a "progressive series of stepwise reductions of nutrient loads, until agreed Black Sea water quality objectives are met," which would also include revisiting the Danube Strategic Action Plan. (123) The 1996 Action Plan was revised in 2009. (124) Eutrophication from nutrients was recognized as one of the key transboundary issues, particularly nutrient overloading from Danube River and other rivers that are not as well monitored. (125) States set for themselves a "long-term ecosystem quality objective" to reduce eutrophication. (126) Through a set of short-term, mid-term, and long-term management objectives, the states agreed to examine various land-based sources generating nitrogen and phosphorus. (127) While reducing pollution from diffuse agricultural sources was listed as a high priority, the program only suggested that targets be set for the mid-term and long-term. (128) The plan proposed five to six years "to control specific farming practices with a high risk of causing nutrient losses" and ten or more years to bring compliance across the industry. (129) Other proposed actions, such as developing best available technology "for the design and operation of large-scale agro-industrial livestock production units, including pig and poultry farms," have equivalent timelines. (130) In principle, the strategic plan's targets are encouraging given the lack of quantification in so many of the other instruments already described. Progress has been made in reducing nutrients, but the Black Sea States are struggling to adapt to drivers from climate change that are perpetuating coastal hypoxia problems. (131)
c. International and Regional Land-Based Pollution Reduction Schemes
The Law of the Sea, several regional conventions, five protocols, and numerous action plans and strategies provide a formidable corpus of law regarding nutrient reduction. There is a shared understanding among most states that something needs to be done regarding nutrient deposition in regional waters. There is no shared sense of urgency across the various legal instruments. In some instances, the law appears to be perpetuating delay in taking action when there are no specifically set timetables or quantity targets. Parties seem content with revisiting agreements to make incremental changes. For example, when the Athens Protocol was re-negotiated in 1996, collective knowledge of the need for reducing nutrients and practices for addressing excess nutrients was generated as part of the 1995 GPA process. Yet, the Mediterranean Action Plan provided member states no specific guidance on nutrient reduction except for general observations regarding the need to regulate agricultural pollution. As of 1995, the Mediterranean States, which had already agreed to the reduce land-based marine pollution in 1980, were still undertaking commitments to collect information about pollution in the Mediterranean Sea, to share information about treatment of liquid and solid waste, and develop programs for pollution prevention. (132)
In 1999, the Mediterranean States agreed to a Strategic Action Programme to Address Pollution from Land-Based Sources (SAP), which provided some deadlines. (133) Regarding nutrients, the SAP provided that by 2005, states must have developed National Plans and Programmes for the environmentally sound management of sewage. (134) The SAP set additional goals to reduce by 2009, the inputs of biological biochemical oxygen demands, nutrients, and suspended solids. (135) Acknowledging that nutrients from intensive agriculture "represent a high proportion of the total anthropogenic load of nutrients to the coastal zone," the SAP sets a vague target for member states "to reduce nutrient inputs, from agriculture and aquaculture practices into areas where these inputs are likely to cause pollution." (136) States are expected to assess how much fertilizer is used, how much manure is produced, and to promote "ecological agriculture." (137) These vague strategies provide little guidance for individual states. The halting efforts in the Mediterranean to reduce nutrients, spanning thirty-five years, illustrates the default behavior of regional actors to delay implementation of difficult but necessary interventions, such as regulating nutrient applications in agricultural practices.
States understand the issue of excess nutrients as a long-term problem to be reduced and eventually eliminated. While states have named nitrogen and phosphorus as pollutants, it was not until the Baltic Sea Action Plan in 2007 that they set specific targets for nutrient reductions. Instead, states commit and recommit to addressing excess nutrients through the Washington Declaration, Montreal Declaration, and the most recent Manila Declaration. (138) The latest international effort is the formation of the Global Partnership on Nutrient Management, a platform for interaction between states, intergovernmental organizations, and the private industry, that intends to "estimate and map" at the watershed level the impact of nutrients. (139) The general lack of specific operational responses might be explained by political reluctance to change the status quo or a variation of the "bystander effect," in which individual states wait for more legal clarity on "best environmental practices" before directing state resources to address land-based pollution sources. In order to combat the "bystander effect," which operates as a default approach for many states, it is critical that states understand the risks associated with inertia. The failure to act in response to international obligations because other states are not acting does not obviate the need to address latent ecological disasters. The final section of this Article suggests that the legal response to chronic environmental problems such as excess nutrients should be addressed by applying disaster risk reduction practices to implementation of IEL obligations.
III. OVERLAPPING IDL AND IEL REGIMES TO ADDRESS LATENT ECOLOGICAL DISASTERS
Reducing excess nutrients is not an easy coordination problem. It involves multiple actors, including small and large factories, wastewater treatment plants, and small and large farmers. Some sectors like agriculture have not been historically subject to targeted regulatory regimes, and industry leaders respond with resistance when regulation is proposed. Efforts at incremental coordination across the globe to reduce nutrient applications through the various binding and non-binding law and policy frameworks detailed above have been uneven, leading to inadequate prevention and increases in the number and size of "dead zones" in coastal regions.
This last Part suggests that reframing how we approach IEL problems by thinking of them as IDL challenges may offer unexplored opportunities to bolster the effectiveness of existing IEL frameworks where little progress has been made towards achieving treaty objectives. IDL, in contrast to the current practices of IEL, offers the ability to deploy interventions more quickly to ensure that critical ecological thresholds are not exceeded. As noted in the introduction to this Article, the threat of potential ecological regime shifts raises substantial policy questions when nations are forced to grapple with new and potentially undesirable states. From a management perspective, it will be easier to manage a known threat, such as nutrient application, than to address an unknown consequence, such as a "dead zone," where restoration is no longer viable. The first Subpart describes why reframing certain IEL questions as IDL concerns may overcome existing IEL treaty regime inertia. The second Subpart explains how infusing disaster risk reduction thinking into IEL implementation might change existing state approaches to chronic IEL problems, such as nutrient overloading, where existing legal responses have yielded and continue to yield inadequate responses at the national level from responsible parties. Thinking about problems from a disaster risk calculus has the potential to change political conversations from sectoral disagreements about overregulation to more participatory dialogues about risk reduction planning.
A. Reframing Land-Based Source Pollution Problems as Disaster Risk Reduction Priorities to Overcome Existing Bystander Effect
Decades after recognizing the possibility of having too much of a good thing when it comes to chemical fertilizers and nutrients, states from both the Global North and Global South are struggling to engineer an effective legal response. If anything, a growing global population has made nutrient use even more prevalent as part of food security strategies to address the crisis of food quantity. The Food and Agriculture Organization observed that in 2014 the use of fertilizer in the globe increased by 2% from 2013 and is expected to grow at 1.8% per year from 2014 to 2018. (140) The challenge of enhancing terrestrial food sources has overshadowed the latent disaster of coastal food sources in spite of studies that coastal resources are in increasing peril. For example, scientists have observed that, as waters become increasingly saturated with nitrogen, the algal blooms are spreading, leading to the potential for increasing dead zones. In 2011, scientists concluded that today a unit of nitrogen in coastal waters will produce almost twice the quantity of algal bloom as it would have thirty to forty years ago. (141) Increases in hypoxia may trigger economic crises within coastal fisheries. (142) According to some researchers, we have already passed critical ecological thresholds associated with nutrient inputs. (143)
This Part of the Article suggests that approaching excess nutrients primarily as an IEL problem has failed to change behavior because the existing international instruments fail to compel states to make essential changes to land-based practices until threats have materialized. Response to excess nutrients under the OSPAR Convention reflects the propensity for delay by states in executing nutrient reduction strategies. In spite of states' awareness of "problem areas," it was not until 2004 that states developed guidelines for collecting data regarding harmonized reporting for nitrogen and phosphorus. By 2010, OSPAR States were still determining which areas were priority areas for reducing nutrients. (144) By 2015, individual OSPAR States, such as Germany and the Netherlands, had failed to reduce nitrogen inputs. In fact, the Netherlands apparently applies more than 200 kilograms of excess nitrogen per year to each hectare. (145) Because of threats from the European Commission for legal action due to violations of the Water Directive, Germany has developed new legislation that require a subset of farms to submit a strict nitrogen budget plan. (146) The catch is that the German nitrogen budgets will not need to be in effect until 2018. This delay, an obvious political compromise, suggests that the majority of the German parliamentarians do not regard the nutrient overloading as a particularly urgent problem. There are a number of potential explanations for the delay in regulating nutrient inputs, including the prioritization of terrestrial food production strategies, the challenge of regulating dispersed actors, the political power of the fertilizer industry, or the lack of full understanding by policymakers. The IEL strategy for incremental change over a long time frame has been ineffective.
How might one change the status quo and speed up global political and legal commitments to reduce nutrient overloading in a manner that seems operationally promising like the Baltic Sea Action Plan? One possibility would be to create opportunities for "overlapping regimes," as Oran Young proposed, where IEL and IDL would share key methodologies and approaches. (147) While the issue of nutrient overloading is definitely an environmental concern, as reflected in the treaties described above, it is also a concern for disaster risk reduction strategies whether states understand the connection between hazards and vulnerabilities.
Failure to continue to address excess nutrients will impact both sensitive habitats and, potentially, the food supply for communities dependent on coastal resources. Applying a robust disaster risk reduction framework to existing IEL land-based pollution law might eliminate the problem of a widespread "bystander effect," where parties continue to fail to act in part because of unstated assumptions regarding the diffusion of responsibility. The idea that IEL and IDL will operate as "overlapping regimes" is becoming increasingly probable with the intersecting goals of two major international policy initiatives: The Sendai Framework for Disaster Risk Reduction and the Sustainable Development Goals.
In March 2015, the international community committed itself, as part of an international disaster law policy, to achieving "[t]he substantial reduction of disaster risk and losses in lives, livelihoods and health and in the economic, physical, social, cultural and environmental assets of persons, businesses, communities and countries" by 2030. (148) Specifically, states agreed to "prevent new and reduce existing disaster risk" through a multi-disciplinary approach that will "prevent and reduce hazard exposure and vulnerability to disaster, increase preparedness for response and recovery, and thus strengthen resilience." (149) These commitments should apply not just to catastrophic, sudden disasters such as tsunamis and earthquakes but also to latent disasters that have ecological thresholds that have been or are threatened to be exceeded. An implicit recognition of latent ecological disasters is also found in the Sustainable Development Goals. For example, Goal 15 and its targets call upon states "to ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services," which include hazard-regulating ecosystem services. (150)
Continuing to address excess nutrients and their connection to hypoxia as primarily environmental issues, states will employ a measured approach to problem solving that will not compel rapid action. If Germany were to develop a plan to reduce the continued spread of the known Ebola virus or of some other pandemic, a multi-year time frame for nitrogen-reduction would be unimaginable. Even though states understand the risks inherent in the unchecked spread of disease, states have failed to internalize the magnitude of risks associated with certain industrial practices that threaten to cause ecosystem regime shifts.
States may address the hazard of nutrient application in a more urgent fashion than is currently reflected in the international and regional laws for addressing land-based pollution sources by approaching it as a disaster mitigation issue. The legal framing of the problem will influence the extent to which the "bystander effect" delays action. States may continue to fail approaching nutrient pollution problems because of a shared social norm not to act. State policymakers might consider taking action where no other state is taking action as unnecessarily altruistic in the face of competitive agricultural markets. Reframing the problem as a disaster risk reduction problem could change the calculus of whether an individual state will invest in nutrient reduction.
Psychologists suggest that, for individuals faced with a crisis where they have a binary choice to either intervene or ignore the problem, the default of the "bystander effect" can be overcome by changing the group norm to "we need to do something now." (151) What does this suggestion mean in the context of increasing dead zones across a region? If each nation were to approach the "dead zones" as a ticking ecological time bomb for both marine environments and the jobs that depend on those environments within their jurisdiction, then states might begin to prioritize nutrient management as a necessary political intervention regardless of how other states react to fulfilling their obligations under the land-based pollution reduction treaties. A key normative shift that international law can facilitate is recognizing recurring environmental issues like excess nutrients as unmanaged hazards and potential precursors for disasters such as the collapse of a community fishery.
B. Applying Disaster Risk Reduction Strategies to Respond to Excess Nutrients
Assuming that states take a robust approach to disaster risk reduction and include latent ecological disasters in their analysis of national disaster risks, how might states "do something now" in order to combat the bystander effect and reduce threats posed by excess nutrients to coastal communities and coastal habitats? One possibility is for states operating within their existing land-based pollution regional arrangements to commit to creating regional action plans that are designed to identify specific shared risks, harness existing national institutional capacity to respond to the risks, and provide some framework for ensuring national accountability for hazard and risk reduction from other regional members. While this Article is focused on long-term environmental problems like nutrient overloading, this model of reducing risks by developing regional action plans may also be appropriate for other environmental challenges such as biodiversity loss, chemical management, or climate mitigation, where little progress towards achieving treaty objectives has been achieved.
First, individual states or groups of states might undertake sub-regional level or possibly watershed level "rapid response assessments" (RRAs). These assessments would be a natural progression of the international RRAs. Over the course of the last half of a decade, UNEP has assigned teams of experts to draft RRAs to address discreet challenges, including environmental crimes, blue carbon, ocean acidification, and wastewater management. (152) The UNEP RRAs are significant for raising broader awareness among State parties, but they do not offer state-by-state recommendations and have not been updated to reflect related but new threats that arise. If states were to rely on groups of domestic multi-stakeholder experts to undertake RRAs in relation to individual environmental treaty commitments, then this could be the public foundation upon which to prioritize subsequent government disaster risk reduction actions that might include stricter regulations or removal of damaging product subsidies. (153) A domestic RRA might demonstrate how various hazards interact to create a set of risk conditions. The conclusions of an RRA might be publicly shared in the form of a vulnerability map to assist with national risk reduction planning. (154) Vulnerability reviews should not be limited to ecological vulnerability, but should also incorporate community vulnerability. (155)
Second, on the basis of vulnerability maps, states can define precautionary nutrient thresholds that are necessary to protect natural resources and avoid conditions that might trigger or increase a dead zone. Ideally, these nutrient thresholds would not just be aspirational, but would be incorporated into a national regulatory framework. For regions where thresholds have not yet been exceeded, the thresholds could operate as baselines for legal disaster prevention. Where thresholds have already been exceeded, a region can be identified as an ecological disaster hotspot requiring immediate agency coordination and action.
One model for agency coordination and action might be the coordination model found in existing contingency plans that address national responses to oil and hazardous substance spills. (156) The United States National Contingency Plan coordinates actions by federal, state, and local government through the creation and implementation of federal, regional, and area contingency plans. (157) If a model of coordinated contingency planning were to be applied to nutrient overloading events, then the threat of "dead zones" might be prioritized as a necessary national disaster risk reduction measure. A contingency planning team might include wastewater treatment plant operators, federal and state departments of agriculture, federal and state fishery managers, and federal and state environmental protection departments. This concept has been championed in part by the State of Washington's ocean acidification strategy, which proposes "Pollution Control Action Teams" that would include "representatives of local, state, tribal, and federal agencies working closely with landowners and other interested parties." (158) Ideally, a latent ecological disaster contingency team would include senior-level policymakers who have the legal authority to exercise certain emergency powers, such as truncated administrative review, in order to effectively manage emerging environmental risks, such as a dead zone.
Finally, states participating in regional agreements must set quantitative targets based on the precautionary thresholds that will reduce the risk of an ecological disaster. Without quantitative targets, the "bystander effect" becomes even more pronounced, as there is no easily verifiable standard against which to compare the progress of various actors. The weakness of most of the existing IEL instruments addressing excess nutrients as land-based pollution has been a lack of specific objectives beyond broad goals of preventing, reducing and controlling sources. While some regions have begun to assign quantitative targets through action plans such as the Baltic Sea Action Plan, this has only been a recent phenomenon. Particularly discouraging are the flexible deadlines to which some states have applied after setting quantitative targets. For example, the Hypoxia Task Force, with representatives from twelve states and several federal agencies, set for itself in 2009 a quantitative target to reduce the existing approximately 5000 square mile hypoxic zone in the Gulf of Mexico to 1900 square miles (5000 square kilometers) by 2015 by reducing total watershed nutrient loading. (159) In February 2015, the Hypoxia Task Force indicated that it would still attain the goal of reducing the dead zone to less than 1900 square miles but that it would extend the time of attainment from 2015 to 2035. (160) While seven years may have been unrealistic, extending the time frame for action by an additional twenty years in hopes of demonstrating success on the part of agency actors eliminates the urgency for active coordination despite the fact that "the dead zone in the Gulf of Mexico affects nationally important commercial and recreational fisheries and threatens the region's economy." (161) Meanwhile, the prediction for the summer of 2015 was for the Gulf of Mexico's hypoxic zone to grow to 5483 square miles, reflecting little to no progress. (162) Reframing the existing Gulf of Mexico challenge as a disaster risk reduction challenge rather than an environmental clean water issue might have led to a different outcome.
Employing some combination of these systematic planning approaches would signal a transition from the current IEL practice of diplomatically committing and re-committing to nutrient reduction as described in Part II to an IDL practice of defining and specifically assessing the extent of the problem, identifying specific risk thresholds, and preparing for contingencies based on risk thresholds. While state efforts to apply disaster risk reduction approaches to long-term environmental problems are still in their early stages, this bridge between IEL and IDL approaches is beginning to materialize in the form of a few regional state action plans. If these plans are to succeed, they should be incorporated into the disaster risk reduction efforts that states are already undertaking in preparation for severe weather events, oil pollution spills, and national security threats. The Baltic Sea States have recognized the need for overlapping regimes. In their 2015 adaptation document "Baltadapt Strategy," those States understand the need for "the coordination and integration of agricultural, risk management and environmental policy actions." (163)
An important part of disaster risk reduction is building active networks capable of adapting to changing conditions on the ground. In creating disaster risk reduction strategies for a community, states must work with the communities as they are with all of their resistance and potential dysfunctions. When a disaster strikes, the community must rely on itself to respond and create internal accountability. The same need to build a network of key actors applies to approaching environmental management as disaster risk problems. Until recently, this has not been a core practice for IEL, where treaties have not been specific about which groups of stakeholders should be consulted by the state and included in developing a response. Even today, where there are more efforts to build multi-stakeholder groups to address key issues such as biodiversity loss and climate change, some of these groups are still missing key actors whose activities are central to making progress towards resolving a long-term environmental crisis. For example, in the Global Partnership for Nutrient Management, a network formed to address excess nutrients, the partnership does not appear to include any farmers' organizations in its strategic leadership. (164) Applying an IDL approach to IEL issues makes sense because, in theory, it should highlight the urgency of managing certain otherwise neglected issues and should ensure that the right actors are at the decision-making table.
As a young legal field with its roots in the 1970s, IEL has raised awareness of shared challenges in managing critical resources such as the air, water, and land. Yet, one of the chronic challenges for the field has been ongoing delay in implementation of effective environmental measures. This reoccurring delay is well-illustrated by the case study of land-based pollution, where states have been negotiating agreements since the 1970s with few tangible results in the area of nutrient overloading. After thirty years of treaties and a sharp increase in the numbers of dead zones, the need is more urgent than ever for state action to curb trends that threaten to cross ecological thresholds and lead to regime shift.
Excess nutrients are not a trending topic that solicits much interest from the public. However, perpetuating the existing "green" revolution to meet food security demands may ultimately contribute to a "blue" death spiral for coastal fisheries. The threats are increasingly obvious in places such as the Gulf of Mexico and the Baltic Sea, where de-oxygenated waters are stressing increasingly fragile ecosystems. This continued release of excess nutrients will eventually exceed ecological thresholds--if it has not already--leading to irreversible threats to the viability of existing livelihoods, food resources, and ecosystems. What has been deemed largely an environmental management issue may soon threaten fundamental human rights including the right to food. Existing international, regional, and national law has been largely unresponsive to the growing threats of excess nutrient deposition.
Why has there been so little national or regional response in spite of a profusion of both information about excess nutrients and agreements to cooperate? This Article suggests that one of the coordination challenges has been the result of an international "bystander effect" whereby states fail to fully appreciate the nature of the pollution problem and then assume there will be a diffusion of responsibility to resolve the problem. Until very recently with the development of action plans that diffuse the responsibility among states, the strategy of reducing land-based pollution has been incremental and qualitatively undefined. As a result, initiation of action to prevent and control pollution across a region is unnecessarily delayed.
While it is not enough to label something as a disaster and expect behavioral changes, the international environmental law of land-based pollution reduction will benefit greatly from approaching nutrient reductions as a disaster risk reduction problem rather than as a multi-decade environmental management concern. Reframing and relabeling the problem may generate new institutional responses, including the introduction of discrete targets for reducing nutrient deposition for which states can be held accountable, specific reforms for industries contributing nutrients (e.g., requiring planting of cover crops (165) or berming for agricultural fields to prevent nutrient rich run-off), and deadlines for action. Framing pressing IEL challenges where international treaties have failed to deliver progress towards treaty objectives in the context of existing IDL principles and concepts such as risk reduction and prevention introduces a necessary degree of pragmatism and urgency to target land-based pollution stressors that continue to threaten coastal resources. Labeling the irreversible regime shifts associated with certain types of environmental problems, such as biodiversity loss and pollution, as disasters is an essential step in reconfiguring human relationships as relationships that rely on valuing the environment. (166)
Acting now to manage environmental risks that threaten regime shifts is not without financial costs. In a world of diminishing public financial resources, there will be tradeoffs between acting and maintaining a status quo. In the case of latent ecological disasters, states must consider not just the costs of reforming agricultural practices, but also the costs of failing to act for food security systems, states have had thirty years since the inception of global and regional efforts to manage excess nutrients in order to implement sectoral changes, and yet change has been marginal at best. To overcome the "bystander effect," states must understand the implications of regime shifts for future planning and incorporate ecological thresholds into their short-term risk planning. One means of doing this will be to build institutional responses within existing environmental and disaster response institutions that will create overlap between the existing IDL and IEL regimes by mainstreaming risk reduction practices into current environmental management and environmental treaty implementation.
As a species, humans are both risk-makers and risk-takers. The large investment in "Green Revolution" as a global food security strategy in the 1950s reflected willingness on the part of the international community to take a risk that technology could bridge the gap in food supply for many states. By taking this risk, states also created new risks in the form of the unintended consequences of excess nutrients contaminating watersheds. It is time for States to acknowledge that historical decisions about resource use, reinforced by existing economic structures, are creating highly risky situations. Adopting an IDL risk reduction approach to what have been regarded as generic JEL problems may empower States to decide that acting now to reform industry practices will prevent irreversible damage to coastal ecosystems for this and for future generations.
Anastasia Telesetsky, Professor, University of Idaho College of Law.
(1) Disaster, OXFORD ENGLISH DICTIONARY (2d ed. 2015).
(3) A hazard is a set of physical conditions that pose a threat to a socio-ecological system. High winds from a hurricane are an example of a hazard. Vulnerability is the sensitivity of a system to resist or adapt to a given hazard. Nick Brooks, Vulnerability, Risk and Adaptation: A Conceptual Framework 3-6 (Tyndall Ctr., Working Paper No. 38, 2003), http://www.tyndall.ac.uk/sites/default/files/wp38.pdf. For additional definitions of "hazard" and "vulnerability," see Katharina Marre, Components of Risk: A Comparative Glossary, in MEASURING Vulnerability to Natural Hazards 569, 569-618 (2013).
(4) See generally B. WISNER ET AL., At RISK: NATURAL HAZARDS, PEOPLE'S VULNERABILITY and Disasters 10-11 (2d ed. 2004).
(5) See Ryan Schuessler, We 're Totally Mismanaging the Mississippi River Basin--and It's Costing Us, WASH. Post (Oct. 16, 2015), https://www.washingtonpost.com/news/energy-environment /wp/2015/10/16/were-totally-mismanaging-the-mississippi-river-basin-and-its-costing-us/ (describing how oxygen levels continue to be depleted in the Mississippi Watershed due in part to nutrient runoff); Aarhus Univ., Oxygen Depletion in the Baltic Sea Is Ten Times Worse than a Century Ago, ScienceDaily (Mar. 31, 2014), http://www.sciencedaily.com/releases/2014/03/140331153616.htm (describing how Baltic Sea waters have become increasingly nutrient polluted, leading to substantial decreases in oxygen); Brian Palmer, Dead Zones: Devil in the Deep Blue Sea, Live SCI. (Aug. 9, 2014, 2:18 AM), http://www.livescience.com/47274-dead-zones-in-united-states.html (quoting hypoxia researcher Robert Diaz from the Virginia Institute of Marine Science as estimating the existence of 1000 dead zones in the world).
(6) In the past decade, ecologists have developed a body of literature focusing on the significance of ecological thresholds and resilience. This literature highlights the need for rapid responses to address certain environmental conditions that could lead to ecological regime shifts. See, e.g., Reinette Biggs et al., Turning Back from the Brink: Detecting an Impending Regime Shift in Time to Avert It, 106 PROC. Nat'l. Acad. SCI. 826, 826 (2009) (observing that, in systems where ecological drivers can only be managed gradually, management action is necessary far in advance to avoid a regime shift and noting that "[a]verting ecological regime shifts also depends on developing policy processes that enable society to respond more rapidly to information about impending regime shifts"); Carl Folke et al., Regime Shifts, Resilience and Biodiversity in Ecosystem Management, 35 ANN. REV. ECOLOGY, Evolution, & Systematic^ 557, 567-68 (2004) (describing how human activities have led to undesirable ecological regime shifts and loss of ecosystem services by threatening system resilience); W. Steffen et al., Planetary Boundaries: Guiding Human Development on a Changing Planet, 347 SCI. 736 (2015) (describing how measuring against thresholds defined as "planetary boundaries" will reduce the threat of regime shifts).
(7) Minamata Convention on Mercury, Oct. 10, 2013, http://treaties.un.org/doc/Treaties/2013/10/20131010%2011-16%20AM/CTC-XXVII-17.pdf; Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1550; Convention in Trade of Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 12 I.L.M. 1085.
(8) Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, June 18, 1998, 1439 U.N.T.S. 27; International Convention on the Simplification and Harmonization of Customs Procedures, May 18, 1973, T.I.A.S. 6633.
(9) See Oran Young, Sugaring Off: Enduring Insights from Long-Term Research on Environmental Governance, 13 INT'L Envtl. AGREEMENTS 87, 97 (2013) (describing four interactions within environmental governance regimes, including one interaction that he refers to as "overlapping regimes," where regimes are constituted separately and operate separately but share some common interests).
(10) Third U.N. World Conference, Sendai Framework for Disaster Risk Reduction 2015-2030, [paragraph] 16, U.N. Doc. A/CONF.224/CRP. 1 (Mar. 18, 2015).
(11) David Fisher, Law and Legal Issues in International Disaster Response: A Desk STUDY (2007), http://www.ifrc.org/PageFiles/125639/113600-idrl-deskstudy-en.pdf (describing legal issues including the declaration of an emergency by a government, customs procedures for goods and equipment, recognition of professional qualifications for relief providers, transport requirements, and effective coordination between international and domestic disaster relief providers).
(12) See, e.g., Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 ("Where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat."); United Nations Framework Convention on Climate Change, June 4, 1992, 31 I.L.M. 849 ("The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measure, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.").
(13) See, eg., Conference of the Parties (COP), CONVENTION ON BIOLOGICAL Diversity, https://www.cbd.int/cop/ (last visited Jan. 14, 2016) (summarizing major working themes from past Conference of Parties).
(14) Montreal Protocol on Substances that Deplete the Ozone Layer, supra note 7, art. 2A-2I (describing phase-out targets).
(15) Aichi Biodiversity Targets, CONVENTION ON BIOLOGICAL DIVERSITY, https://www.cbd.int/sp/targets/ (last visited Jan. 14, 2016) (providing a compilation of twenty targets concluded as part of the Strategic Plan for Biodiversity 2011-2020 with specific target deadlines to achieve environmental objectives). For example, by 2020, States are expected to bring pollution from "excess nutrients" to levels that are not detrimental to ecosystem function and biodiversity.
(16) See, e.g., Paris Climate Change Conference, United Nations Framework Convention on Climate Change, http://unfccc.int/meetings/items/6240.php (last visited Apr. 1, 2016) (illustrating that the implementation of the United Nations Convention on Climate Change has been the topic of political debate at twenty-one conferences of the treaty parties without clear resolution on how to achieve adequate and effective mitigation and adaptation).
(17) Young, supra note 9, at 97 (designating "overlapping regimes" as one potential interaction within regimes of environmental governance).
(18) Geeta Anand, Green Industry in India Wilts as Subsidies Backfire, Wall STREET J. (Feb. 22, 2010, 12:01 AM), http://www.wsj.corn/articles/SB10001424052748703615904575052921612723844. ("As the soil's fertility has declined, farmers under pressure to increase output have spread even more urea on their land.").
(19) B. Latane & J.M. Darley, Bystander "Apathy", 57 Am. Scientist 244 (1969) (describing an experiment where participants in the study filled out questionnaires while smoke began to fill the room. If participants were alone, 75% reported the smoke to the experimenters. If two other participants were in the room, only 38% reported the smoke. If two plants placed by the experimenters observed the smoke and then ignored it, only 10% of the participants reported the smoke.). See generally J.M. Darley & B. Latane, The Unresponsive Bystander: Why Doesn't He Help? (1970); J.M. Darley & B. Latane, Bystander Intervention in Emergencies: Diffusion of Responsibility, 8 J. Personality & Soc. Psychol. 377 (1968).
(20) R.B. Cialdini, Influence: Science and Practice 114 (2001) (describing pluralistic ignorance among individuals who wait for the reaction of others before acting).
(21) G. S. Khush, Green Revolution: Preparing for the 21st Century, 42 GENOME 646, 648 (1999) (observing that as part of the ongoing "Green Revolution" "[w]orldwide fertilizer use increased rapidly from 14 million tons in 1950 to 140 million tons in 1990, or a 10-fold increase").
(22) UNEP/GPA, The State of the Marine Environment: Trends and Processes 21 (2006).
(23) Id. at 33.
(24) David Biello, Fertilizer Runoff Overwhelms Streams and Rivers--Creating Fast 'Dead Zones', SCI. Am. (Mar. 14, 2009), http://www.scientificamerican.com/article/fertilizer-runoff-overwhelmsstreams/.
(25) Hypoxia Definitions, USGS, http://toxics.usgs.gov/definitions/hypoxia.htrnl (last updated Aug. 4, 2015).
(26) Hypoxia 101, EPA, http://www.epa.gov/ms-htf/hypoxia-101 (last updated Sept. 25, 2015).
(27) Robert Diaz, Nancy Rabelais, & Denise Breitburg, Agriculture's Impact on Aquaculture: Hypoxia and Eutrophication in Marine Waters 13 (2012).
(29) Robert Diaz & Rutger Rosenberg, An Assessment of Coastal Hypoxia and Eutrophication in U.S. Waters: Spreading Dead Zones and Consequences for Marine Ecosystems, 321 SCI. 926 (2008); Dan Charles, Fertilized World, NAT'L GEOGRAPHIC, May 2013, http://ngtn.nationalgeographic.com/2013/05/fertilized-world/charles-text (noting that excess nitrogen has damaged China's coastal fisheries); see also Melodi Smith & Jason Hanna, Gulf of Mexico 'Dead Zone' is the Size of Connecticut, CNN (Aug. 5, 2014, 5:08 PM), http://www.cnn.com/2014/08/05/tech/gulf-of-mexico-dead-zone/ (quoting Nancy Rabelais of the Louisiana Universities Marine Consortium, who has identified 550 dead zones).
(30) R.S.S. Wu, Effects of Hypoxia on Fish Reproduction and Development, 27 FISH PHYSIOLOGY 79 (2009); Diaz & Rosenberg, supra note 29.
(31) Wash. State Blue Ribbon Panel on Ocean Acidification, Ocean Acidification from Knowledge to action (2012).
(32) Id. at 15 (noting that "The majority of hypoxic zones that have developed over the last 30 years are directly linked to agricultural nonpoint runoff"). While this Article is focused on the disaster risks associated with excess nutrient runoff and releases and the appropriate legal responses to these risks, it is noteworthy that airborne emissions from fossil fuel plants, including carbon dioxide, nitrogen oxides, and sulfur oxides, also exacerbate the problem of coastal hypoxia. Id. at 38.
(33) Christopher Gobler et al., Hypoxia and Acidification Have Additive and Synergistic Negative Effects on the Growth, Survival, and Metamorphosis of Early Life Stage Bivalves, 9 PLOS ONE 1 (2014), http://joumals.plos.org/plosone/article?id=10.1371/joumal.pone.0083648.
(34) Convention for the Prevention of Marine Pollution from Land-Based Sources art. 1, June 4, 1974, 13 I.L.M 352, 1546 U.N.T.S. 119 [hereinafter Paris Convention] (including Austria, Belgium, Denmark, France, Germany, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United Kingdom among participating states).
(35) Id. art. 3(c).
(36) Id. art. 4(2), Annex A (Part II) ("Among the substances that should be limited are strictly organic compounds of phosphorous and elemental phosphorous.").
(37) Id art. 4(3).
(38) Convention for the Protection of the Marine Environment of the North Atlantic, Sept. 22, 1992, 2354 U.N.T.S. 67, available at http://www2.unitar.org/cwm/publications/cbl/synergy/pdftcat3/convention_ospar/convention_ospar.pdf (Participating states include Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United Kingdom. The European Union is also a member.).
(39) United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S 13.
(40) Id. art. 7(1)-(2).
(41) Id. art. 207(3)-(4).
(42) Environment Programme 13/18/11 (May 24, 1985) [hereinafter Montreal Decision], http://www.pnuma.org/gobernanza/cd/Biblioteca/Derecho%20ambiental/28%20UNEPEnvLawGuide&PrincN07.pdf.
(43) Id. at Principle 14 and 16(a).
(44) Id. at Annex 11.
(45) See, e g., The Convention for the Protection of the Marine Environment of the Baltic Sea Area, Apr. 9, 1992, 13 I.L.M 546, 1507 U.N.T.S 167 [hereinafter Helsinki Convention], available at http://www.helcom.fi/Documents/About%20us/Convention%20and%20commitments/Helsinki%20Con vention/Helsinki%20Convention_July%202014.pdf; Protocol for the Protection of South-East Pacific Against Pollution from Land-based Sources, July 23, 1983 [hereinafter Quito Protocol], available at http://www2.unitar.org/cwm/publications/cbl/synergy/pdf/cat3/UNEP_regional_seas/convention_lima/ protocol_land.pdf.
(46) Montreal Decision, supra note 42, Annex II (2.6).
(47) The Athens Protocol is a protocol to the 1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution (renamed in 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean). Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, May 17, 1980, http://www.unep.ch/regionalseas/main/med/mlbsprot.html (Participating states include Albania, Algeria, Bosnia and Herzegovina, Croatia, Cyprus, Egypt, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Montenegro, Morocco, Slovenia, Spain, Syria, Tunisia, and Turkey. The European Union is also a member.).
(48) Id. art. 4(1).
(49) Id. at Annex II.
(50) Id. art. 7(2).
(51) Id. art. 7(1)(d).
(52) Convention for the Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region art. 4, Mar. 23, 1981, http://abidjanconvention.org/media/documents/publications/Abidjan%20Convention%20English.pdf (Participating states include Benin, Cameroon, Congo, Cote D'Ivoire, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mauritania, Nigeria, Senegal, Sierra Leone, South Africa, and Togo.).
(53) Convention for the Protection, Management, and Development of the Marine and Coastal Environment of the Eastern African Region and Related Protocols, June 21, 1985, http://www.unep.org/NairobiConvention/docs/English_Nairobi_Convention_Text.pdf (Participating states include Comoros, France, Kenya, Madagascar, Mauritius, Mozambique, Seychelles, Somalia, Tanzania and the Republic of South Africa).
(54) Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, Feb. 13, 1982, [hereinafter Jeddah Convention], http://www.persga.org/Documents/Doc_62_20090211112825.pdf (Participating states include Djibouti, Egypt, Jordan, Saudi Arabia, Somalia, Sudan, and Yemen).
(55) Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution art. 3(c), Apr. 24, 1978, http://www2.unitar.org/cwm/publications/cbl/synergy/pdf/cat3/UNEP_regional_seas/convention_kuwai t/convention.pdf (Participating states include Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates).
(56) Protocol for the Protection of the Marine Environment against Pollution from Land-Based Sources arts. IV, 1(8), Jan. 2, 1990, http://ropme.org/uploads/protocols/land_based_protocol.pdf.
(57) Convention for the Protection of the Marine Environment and Coastal Area of the Southeast Pacific, Nov. 12, 1981 [hereinafter Lima Convention], http://sedac.ciesin.org/entri/texts/marine.environment.coastal.south.east.pacific. 1981 .html (Participating states include Chile, Colombia, Ecuador and Peru.); Quito Protocol, supra note 45.
(58) Quito Protocol, supra note 45, art. VI (d).
(59) Id. art. V, Annex II.
(60) Id. art. V, Annex III(E)(1).
(61) Protocol on Protection of the Black Sea Marine Environment Against Pollution from Land Based Sources art. 4, Apr. 21, 1992, http://www.blacksea-commission.org/_convention-fulltext.asp (Participating states include Bulgaria, Romania, Russian Federation, Georgia, Turkey and Ukraine.).
(62) Id. at Annex II(6).
(63) Id. art. 6(4).
(64) Id. at Annex III.
(65) James Owen, World's Largest Dead Zone Suffocating Sea, NAT'L GEOGRAPHIC (Mar. 6, 2010), http://news.nationalgeographic.com/news/2010/02/100305-baltic-sea-algae-dead-zones-water/.
(66) Helsinki Convention, supra note 45 (Participating States include Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland, Russian Federation, and Sweden. The European Union also participates).
(67) Id. art. 6(2).
(68) Id. at Annex I (1.1) and (1.2).
(69) Washington Declaration on the Protection of the Marine Environment from Land-Based Activities, Nov. 1, 1995 [hereinafter Washington Declaration], http://unep.org/gpa/documents/meetings/Washington/WashingtonDeclaration.pdf.
(70) Id. [paragraph][paragraph] 2, 5.
(71) David VanderZwaag & Ann Powers, The Protection of the Marine Environment from Land-based Pollution and Activities: Gauging the Tides of Global and Regional Governance, Int'L J. Marine & Coastal L. 423, 452 (2008).
(72) Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, UNEP(OCA)LBA/IG.2/7 (Dec. 5, 1995), [paragraph] 18 (Adopted by 108 states and the European Union.)
(73) Id. [paragraph] 97.
(74) Id. [paragraph] 130.
(75) Id. [paragraph] 131.
(76) UNEP/GPA, Implementation of the GPA at Regional Level: The Role of Regional Seas Conventions and Their Protocols (2006).
(77) Id. at 29.
(79) Protocol Concerning Pollution from Land-based Sources and Activities to the Convention for the Protection and Development the Marine Environment of the Wider Caribbean Region, Oct. 6, 1999 [hereinafter Cartagena Protocol], available at http://cep.unep.org/repcar/lbs-protocol-en.pdf.
(80) Amended Mediterranean Sea Land-Based Pollution Protocol art. 1, Mar. 6, 1996, http://www.unep.ch/regionalseas/main/med/mlbspii.html.
(81) Id. at Annex 1(A)(2), (19H20), (22), (24), & (26).
(82) Id at Annex I(C)(13) & (17).
(83) The Protocol Concerning the Protection of the Environment from Land-Based Activities in in the Red Sea and Gulf of Aden art. 1, Sept. 25, 2005, http://www.persga.Org/Files//Publications/protocols/PERSGA_LBA_Protocol.pdf (not yet in force).
(84) Id. at Annex I.
(85) Id art. 5(2)-(3).
(86) The Action Plan for the Conservation of the Marine Environment and Coastal Areas in the Red Sea and Gulf of Aden, May 29, 1982, http://www.persga.org/Files//Common/Jeddah_Action_Plan.pdf.
(87) Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities art. I(v), Mar. 31, 2010, http://www.unep.org/NairobiConvention/docs/Final_Act_Protocol&Text_Protocol_Nairobi_Conventio n.pdf.
(88) Id. art. 6(1).
(89) Id. arts. II(1)(a) & (e).
(90) Id. at Annex II(A).
(91) As a UNEP administered convention, documents for the Nairobi Convention and Protocols are http://www.unep.org/NairobiConvention/about/index.asp. A general action plan associated with the Nairobi Convention was negotiated in 1982 but has not been updated.
(92) Cartagena Protocol, supra note 79, at Annex III.
(93) Nutrients, CARIBBEAN Env't PROGRAMME, http://www.cep.unep.org/publications-and-resources/ marine-and-coastal-issues-links/nutrients (last visited Dec. 18, 2015).
(94) Cartagena Protocol, supra note 79, at Annex 1(B), (C)(1)(1), & (C)(2)(e).
(95) Id. art. IV & Annex III-IV.
(96) Id. at Annex III(B)(1).
(97) Id. at Annex IV.
(98) Id. art. XIV(3)(b).
(99) Id. art. XIV(3)(f).
(100) Convention for the Protection of the Marine Environment of the North-East Atlantic arts. 2(1) & 2(3), Sept. 22, 1992 [hereinafter OPSAR], http://www.ospar.org/site/assets/files/1290/ospar_convention_e_updated_text_in_2007_no_revs.pdf.
(101) Id. at Annex I, art. 3.
(102) See generally OPSAR Agreements on Eutrophication, http://www.ospar.org/v_measures/browse.asp7meruF00260303030125_000002_000000 (providing numerous links to technical agreements on eutrophication monitoring negotiated over the course of a decade including Common Procedure for the Identification of the Eutrophication Status of the OSPAR Maritime Area; Revised Joint Assessment and Monitoring Program Eutrophication Monitoring Guideline: Nutrients; OSPAR's Standard Implementation Reporting and Assessment Procedure; OSPAR Harmonised Quantification and Reporting Procedures (HARPNUT) Guideline 1: Framework and approach of the harmonized quantification and reporting procedures for nutrients; OSPAR HARPNUT Guideline 2: Quantification and reporting of nitrogen and phosphorus discharges/losses from aquaculture plants; OSPAR HARPNUT Guideline 3: Quantification and reporting of nitrogen and phosphorus discharges from industrial plants; OSPAR HARPNUT Guideline 4: Quantification and reporting of nitrogen and phosphorus discharges from waste water treatment plants and sewerage; OSPAR HARPNUT Guideline 5: Quantification and reporting of nitrogen and phosphorus losses from households not connected to public sewerage; OSPAR HARPNUT Guideline 6: Quantification and Reporting of Nitrogen and Phosphorus Losses from Diffuse Anthropogenic Sources and Natural Background Losses); PARCOM Recommendation 89/4 on a Coordinated Programme for the Reduction of Nutrients, June 22, 1989, http://www.ospar.org/documents?d=32447; PARCOM Recommendation 88/2 on the Reduction in Inputs of Nutrients to the Paris Convention Area, June 17, 1988, http://www.ospar.org/documents?d=32444; PARCOM Recommendation 92/7 on the Reduction of Nutrient Inputs from Agriculture into Areas Where these inputs are Likely, Directly or Indirectly, to Cause Pollution, http://www.ospar.org/documents?d=32492.
(103) See, e.g., OPSAR Agreements on Eutrophication, supra note 102.
(104) Nutrients in the Convention Area, Assessment of Implementation of PARCOM, Recommendations 88/2, 89/4 and 92/7, http://www.ospar.org/documents/dbase/decrecs/implementation/pr92-7.pdf.
(105) Id. at 20 (Belgium, Germany, the Netherlands, Norway, Portugal, Sweden, and the United Kingdom failed to achieve reductions).
(108) The North-East Atlantic Environmental Strategy, 2010, http://www.ospar.org/site/assets/files/1413/10-03e_nea_environment_strategy.pdf.
(109) Id. at 1, [paragraph] 6.
(110) Id. at 12, [section] 1.2(b).
(111) Id at 12, [section] 2.1.
(112) Id. at 14, [section] 4.5(a).
(113) Id at 14, [section] 4.5(b).
(114) Jacob Carstensen, Jesper H. Andersen, Bo G. Gustafsson, & Daniel J. Conley, Deoxygenation of the Baltic Sea During the Last Century, 111 PROC. NAT'L Acad. SCI. 5628, 5628 (2014).
(115) Helcom Baltic Sea Action Plan, Nov. 15, 2007, available at http://www.helcom.fi/baltic-seaaction-plan/action-plan/.
(118) Helsinki Comm'n, Eutrophication status of the Baltic Sea 2007-2011--A Concise Thematic Assessment 23 (2014).
(120) Id. at 32.
(121) Ragnar Elmgren et at, Baltic Sea Management: Successes and Failures, 44 AMBIO 335, 338 (2015).
(122) Strategic Action Plan for the Rehabilitation and Protection of the Black Sea, Oct. 30, 1996, available at http://www.blacksea-commission.org/_bssap1996.asp.
(123) Id at III(A).
(124) Strategic Action Plan for the Environmental Protection and Rehabilitation of the Black Sea, Apr. 17, 2009, http://www.blacksea-commission.org/_bssap2009.asp.
(125) Id. at 2.1 (finding that "more than 80% of the river-borne inorganic nitrogen load and around 50% of the river-borne phosphate load enters the Sea").
(126) Id at 3.2.
(127) Id. at 3.3.
(128) Id at 3.3 (40).
(129) Id. at Annex III(40).
(130) Id. at Annex III(44).
(131) Sarah Zielinski, Ocean Dead Zones Are Getting Worse Globally Due to Climate Change, SMITHSONIAN (Nov. 10, 2014), http://www.smithsonianmag.com/science-nature/ocean-dead-zones-are -getting-worse-globally-due-climate-change-180953282/?no-ist.
(132) Action Plan for the Protection of the Marine Environment and the Sustainable Development of the Coastal Areas of the Mediterranean (1995), http://22.214.171.124/dbases/webdocs/BCP/MAPPhaseII_eng.pdf.
(133) UNEP, Strategic Action Programme to Address Pollution from Land-Based Activities (1999), http://126.96.36.199/acrobatfiles/MTSAcrobatfiles/mts119eng.pdf.
(134) Id at 8.
(135) Id. at 26 (The Strategy does not make clear whether reducing one of these three inputs such as sediments would suffice to meet the proposed target).
(136) Id. at 27.
(137) Id. at 28.
(138) Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, UNEP/GCSS.XII/INF/10 annex, Jan. 26, 2012; Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities, Nov. 30, 2001, Annex 2, in UNEP-GPA, Protecting Coastal and Marine Environments from Land-Based Activities: A Guide for National Action 78-80 (2006); Washington Declaration, supra note 69, at 2.
(139) See, e.g., UNEP-GEF, Global Nutrient Cycle Project, GPA, http://unep.org/gpa/gpnm/GEFProject.asp (last visited Dec. 19, 2015).
(140) Food & Agric. Org., World fertilizer Trends and outlook to 2018 ix (2015), available at http://www.fao.Org/3/a-i4324e.pdf (The Food and Argiculture Organization of the United Nations measured nitrogen, phosphate, and potash to calculate the global consumption usage.).
(141) J. Carstensen et al., Connecting the Dots: Responses of Coastal Ecosystems to Changing Nutrient Concentrations, 45 ENVTL. SCI. & TECH. 9122 (2011).
(142) See, e.g., Ling Huang, Martin Smith & J. Kevin Craig, Quantifying the Economic Effects of Hypoxia on a Fishery for Brown Shrimp, 2 Marine & COASTAL FISHERIES 232-48 (2010) (attributing 12.9% decrease in the brown shrimp harvest off North Carolina to hypoxic conditions between 1999 and 2005 with losses of $1,272,000 per year in the fisheries studied); Fisheries in the Dead Zone, NO A A Fisheries (July 29, 2013), http://www.fisheries.noaa.gov/stories/2013/07/7_26_13mapping_the_dead_zone.html (observing that the shrimp fishery in the Gulf of Mexico was worth $400 million in 2011 and that dead zones will impact the health of the fishery).
(143) The Nine Planetary Boundaries, STOCKHOLM Resilience Ctr. (Jan. 22, 2015), http://www.stockholmresilience.org/21/research/research-programmes/planetary-boundaries/planetary-boundaries/ about-the-research/the-nine-planetary-boundaries.html (finding that biochemical nitrogen and phosphorus flows are "beyond [a] zone of uncertainty" and reflect a situation of "high risk").
(144) See discussion of OSPAR supra Part II.
(145) Christian Schwagerl, With Too Much of a Good Thing, Europe Tacks Excess Nitrogen, YALE Env't 360 (Apr. 14, 2015), http://e360.yalc.edu/feature/withtoo_much_of_a_good_thing_europe_tackles_excess_nitrogen/2865/.
(147) Young, supra note 9.
(148) Sendai Framework, supra note 10.
(149) Id. [paragraph] 17.
(150) G.A. Res. A/69/L/85, at 25 (Aug. 12, 2015).
(151) Jason Marsh & Dacher Keltner, We Are All Bystanders, Greater Good SCI. Ctr. (Sept. 1, 2006), http://greatergood.berkeley.edu/article/item/we_are_all_bystanders/ (describing a study by psychologist Ervin Staub where an individual and a study confederate are working on a task. When a person appears to be injured in an adjacent room as evidenced by sounds of discomfort and the study confederate suggests that the sound of the injured person is a tape, only 25% of the study participants went next door to check. When the confederate suggested that perhaps the study participants and the study confederates should do something, 66% of the individuals reacted and went next door to check.).
(152) See generally Rapid Response Assessment Series, GRID-ARENDAL, http://www.grida.no/publications/rr/ (last visited Dec. 19, 2015).
(153) The fertilizer industry is subsidized in many states, which may contribute to poor decisions on applications leading to ecological damage. See, e.g., Anand, supra note 18.
(154) Thomas Okey, Selina Agbayani, & Hussein Alidina, Mapping Ecological Vulnerability to Recent Climate Change in Canada's Pacific Marine Ecosystems, 106 OCEAN & COASTAL MGMT. 35-48 (2015) (including mapping of the potential impact of acidification on habitats).
(155) Julia Ekstrom et al., Vulnerability and Adaptation of U.S. Shellfisheries to Ocean Acidification, 5 Nature CLIMATE CHANGE 207-14 (2015) (A recent report provides mapping of the US coastlines on the basis of which areas are most likely to experience unfavorable ecological and social acidification outcomes.).
(156) See, e.g., 40 C.F.R. [section] 300 (2015).
(157) 40 C.F.R. [section] 300.3(b)(2).
(158) Wash. State Blue Ribbon Panel on Ocean Acidification, supra note 31, at 47.
(159) Miss. Rjver/Gulf of Mex. watershed Nutrient Task force, Gulf Hypoxia Action Plan 2008, at 9 (2008), available at http://www.epa.gov/sites/production/files/2015 03/documents/2008_8_28_msbasin_ghap2008_update082608.pdf (including a footnote recognizing the "uncertainty" associated with setting the target and the need for adaptive management as recommended by the EPA Science Advisory Board).
(160) News Release, EPA, States Develop New Strategies to Reduce Nutrient Levels in Mississippi River, Gulf of Mexico (Feb. 2, 2015), http://yosemite.epa.gov/opa/admpress.nsfiWC1FEEC0BA93871DB85257DEA005F017F (The hypoxic zone for the Gulf of Mexico as of August 2014 was approximately 5052 square miles.); Smith & Hanna, supra note 29.
(161) News Release, NOAA & US Geological Survey, NOAA Partners Predict an Average "Dead Zone" (June 17, 2015), http://coastalscience.noaa.gov/news/coastal-pollution/noaa-partners-predict average-dead-zone-gulf-mexico/.
(163) LOTTA ANDERSSON, BALTADAPT STRATEGY FOR ADAPTATION TO CLIMATE CHANGE IN THE BALTIC Sea Region 28 (2013), available at http://www.cbss.org/wp-content/uploads/2015/06/BSR -Climate-adaptation-Strategy.pdf.
(164) See, e.g., GLOBAL PARTNERSHIP FOR NUTRIENT MANAGEMENT, PROCEEDINGS OF THE 3D Steering Committee Meeting 11 (2014), http://unep.org/gpa/documents/meetings/gpnm/steeringcommittee/ReportofGPNMSteeringComniitteeD ecember2014.pdf (noting "gaps in the membership" of the Global Partnership and suggesting inclusion of "global farmer networks").
(165) Charles, supra note 29 (describing research by Phil Robertson at Michigan State University, which concluded that approximately half of the fertilizer applied to a field using standard plowing and fertilizer recommendations was washed off the field versus losses of only about one-third of the fertilizer when small amounts of fertilizer were applied with a planting of a winter cover crop).
(166) See generally Folke et al., supra note 6.
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