Overlapping international disaster law approaches with international environmental law regimes to address latent ecological disaster.

• Author: Telesetsky, Anastasia

International Disaster Law (IDL) and International Environmental Law (IEL) have developed as two separate subsets of public international law. IDL has until recently focused largely on developing effective disaster relief laws, while IEL has focused on addressing long-term transboundary environmental crises. This Article argues that the connection between the two legal regimes has been undervalued. Using the ecological case study of excess nutrients (e.g., nitrogen and phosphorus), this Article posits that almost forty years of international legal efforts have failed to reverse the current trend of increasing coastal "dead zones" due to the existence of a form of "bystander effect" whereby nations wait for other nations to react first. To avoid this bystander effect, this Article suggests that the implementation of IEL obligations would benefit from taking an IDL approach by reframing land-based pollution as a disaster risk reduction priority and by applying disaster risk reduction approaches to the problem. While there will continue to be great demand for disaster relief activities, investing in legal approaches that reduce community vulnerability to long-term ecological hazards may avoid future ecological disasters.

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 INTRODUCTION

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...