The Pacific Garbage Patch, Everyone’s Responsibility … Protocol. By way of the above comparator, this paper will highlight the tension between universality and coactivity in public

SANTAMARIA (DO NOT DELETE) 9/18/2017 8:27 AM

[189]

ANDRÉ M. SANTAMARIA, ESQ.*

The Pacific Garbage Patch, Everyone’s

Responsibility but Nobody’s Problem: A

Critical Analysis of Public International Law

Regimes as They Relate to the Growing Toxicity

of the Environment

Abstract ............................................................................................ 190 Introduction ...................................................................................... 190 I. Contextual Backdrop ............................................................. 192

A. The Pacific Garbage Patch ............................................. 192 B. A Glancing Overview of Past Attempts to Address

the Pacific Garbage Patch .............................................. 194 II. The Failings of Public International Law to Address the

Environment .......................................................................... 197 A. The Marquis Challenges Presented by State

Sovereignty .................................................................... 198 B. The Tension Between Universality and Coactivity ........ 201

III. A Solution Proffered: The Universality of UNCLOS III Combined with the Coactivity of the London Protocol ......... 204 A. Whether This Solution Could Be Extrapolated to

Apply to Other Regimes ................................................. 207 B. Environmental Realpolitik ............................................. 209

Conclusion ........................................................................................ 211

* Born in Toronto, Canada, André M. Santamaria obtained his J.D. as well as a Certificate in International and Comparative Law at the Florida Coastal School of Law (Class of December 2014). He is a lawyer, business person, and academic who argues in favor of Natural Law Theory as well as Realpolitik based approaches to International Law.


190 J. ENVTL. LAW AND LITIGATION [Vol. 32, 189

ABSTRACT

Using the Pacific Garbage Patch as a lens, this paper will discuss the difficulties faced by public international law regimes seeking to ameliorate the growing toxicity of the environment, particularly in the commons. First, this paper will expound upon the Garbage Patch so as to craft an understanding of the phenomenon. Subsequently, the focus will shift towards a discussion on the soft-law aspirational nature of UNCLOS III, the treaty most related to the Pacific Garbage Patch, and will juxtapose this with the hard-law concrete nature of the London Protocol. By way of the above comparator, this paper will highlight the tension between universality and coactivity in public international law regimes relating to the environment, and it will postulate that in order to address the growing toxicity of the environment, a new approach is needed.

A central theme in this paper is that universally accepted regimes, such as UNCLOS III, tend to be widely accepted while conferring no serious concrete obligations upon member states, frequently lack coactivity, and are aspirational frameworks at best. Conversely, coactive regimes, like the London Protocol, tend to be low-membership treaties. These regimes do confer meaningful obligations upon member states, but because those states are few in number, such regimes are typically unable to address transnational issues (generally), or the Pacific Garbage Patch (specifically).

During the discussion outlined above, this paper will explore several provisions contained within UNCLOS III, as well as several key principles contained within the London Protocol, namely the “reverse list” and the “precautionary principle.” Finally, it will be suggested that the London Protocol should be absorbed into UNCLOS III by way of the latter’s amendment process, thereby conferring concrete obligations upon all of UNCLOS III’s member states.

INTRODUCTION

Some issues are simple to decipher and to resolve; they have black and white camps, agreed upon facts outlining them, and clear and present solutions. Others, however, are less clear-cut; they have clouds of grey shrouding the facts, and solutions are harder to come by than the factual clarity they lack. Unfortunately, it is frequently the case that the most pressing challenges are also the least clear-cut. It is often true that only the annals of history accurately record them with


2017] The Pacific Garbage Patch, Everyone's Responsibility 191 but Nobody's Problem: A Critical Analysis of Public

International Law Regimes as They Relate to the Growing Toxicity of the Environment

past-due clarity, well after the challenge’s time has passed, and well after opportunity to resolve the issue has faded with the passage of time.

The environment poses such a problem; there is much debate about the science on which environmental issues are grounded, and partisan politics continue to shroud the issues by proffering the existence of one side’s facts versus the counter-facts presented by the other. Additionally, even were the facts unanimously accorded (although they are not presently on many environmental issues), the most significant environmental toxicity challenges present themselves in the form of disaccord about the origin of pollution, and therefore over who should bear the burden of remedying the situation. Many of these sorts of challenges also take place within zones referred to as “the commons.” These are areas under the jurisdiction of no single state, and therefore appear to be more removed and abstract than present and threatening. Consider climate change, space-borne man-made debris, or over fishing of endangered species, as varied examples of the above. There have been multiple attempts, often via public international law regimes, to create a universality in addressing these issues. However, the most universal of regimes are the least coactive; they frequently fail to achieve real change or to make serious enough headway towards resolving pressing and time-sensitive issues that will affect us all, whether we accept responsibility for their creation or not.

Considering the Pacific Garbage Patch as an exemplar of the failure of public international law to address the commons, this paper argues that a new more coactive approach is required to affect positive change in the environment, and that the combination of the universal nature of UNCLOS III with the coactivity of The London Protocol would serve that purpose. To demonstrate the veracity of its thesis, this paper will first examine the Pacific Garbage Patch, outlining the nature of the phenomenon. Subsequently, the discussion will provide an overview of previous attempts to address the Pacific Garbage Patch. Then, it will take a critical look at the failing of public international law to address environmental problems found within the commons. State sovereignty, as it relates to public international law regimes, and the tension between universality and coactivity found within such regimes, will then be considered as challenges to crafting an effective solution. Finally, the combination of the universality of



UNCLOS III and the coactivity of the London Protocol will be offered as a possible vehicle to address the Pacific Garbage Patch.

I CONTEXTUAL BACKDROP

While many issues, like climate change, receive their due in terms of media attention and attempts at resolution, there is one issue that has gone largely ignored by the media and the partisan political processes that often drive public understanding of these issues. That issue is the so-called Pacific Garbage Patch.

A. The Pacific Garbage Patch

The planet is largely made up of water; in fact, there are approximately 326 million trillion gallons of water on our planet, covering approximately 70% of the surface.1 This becomes important because of the obvious significance of water to our planet, and to all forms of life found here, including human life.2 It stands to reason that if our water supply reaches an unsustainable level of toxicity, life on Earth would be irreversibly affected, and might even become impossible.3 One might view the Earth’s different sources of water as unconnected, but in reality, all of the planet’s water is connected either through underground aquifers, rivers, the oceans, or the atmosphere.4 Therefore, if the principal bodies of water, the oceans, become unsustainably toxic, the rest would follow.

Within the oceans there are cyclical patterns of water flow called “Gyres.”5 A gyre is a “circular ocean current[] formed by global wind patterns and forces created by Earth’s rotation.”6 Gyres circle huge areas in the middle of the ocean.7 “Unlike coastal zones, these central regions are relatively stable,” the ocean water does not circulate.8 This

1 HOW MUCH WATER IS THERE ON, IN, AND ABOVE THE EARTH?, U.S. GEOLOGICAL

SURVEY, http://water.usgs.gov/edu/earthhowmuch.html (last visited May 1, 2017). 2 See id. (If groundwater is critically important to life, it is reasonable to assume that all

water is important to life.). 3 See id. 4 WATER CYCLE, https://science.nasa.gov/earth-science/oceanography/ocean-earth

-system/ocean-water-cycle (last visited May 1, 2017). 5 OCEAN GYRE, NAT’L GEOGRAPHIC SOC’Y, http://www.nationalgeographic.org

/encyclopedia/ocean-gyre/ (last updated Oct. 4, 2014). 6 Id. 7 Id. 8 Id.




bears considering when discussing the Pacific Garbage Patch, because it has contributed to the collection of nearly a century’s worth of rubbish in the middle of the Pacific Ocean. That massive collection of garbage will not dissipate of its own accord; rather it will continue to grow and generate more and more toxicity in that ocean.9

The Pacific Garbage Patch is essentially a massive collection of floating and submerged trash stuck in a gyre in the middle of the Pacific Ocean.10 “It is estimated that about four-fifths of the . . . Garbage Patch comes from land. The United States, Mexico, Taiwan, Japan, and China are among its major contributors.”11 There has been no success, however, in crafting a solution to this growing issue because “international law fails to specifically address this crisis of mounting waste in the Pacific. As a result, assigning responsibility for the cleanup . . . has thus far proven impossible . . . given its location within international waters and the limited environmental prohibitions over land-based pollution of the ocean.”12

There are varying calculations, and therefore varying conclusions, as to the actual size of the Pacific Garbage Patch. No consensus exists as to its magnitude, or as to the area within the Pacific Ocean that it presently occupies.13 One of the principal difficulties in quantifying the Pacific Garbage Patch is that “it is hard to measure something that is hard to see. For a variety of reasons, the National Oceanic & Atmospheric Administration has not been able to take satellite photographs of the Pacific Garbage Patch.”14 Some sources estimate the Pacific Garbage Patch is the size of the American state of Texas, others the size of the continental United States. In either case, it is quite large.15 The Pacific Garbage Patch is largely made up of

9 Id. 10 Matthew Schroeder, Forgotten at Sea−an International Call to Combat Islands of

Plastic Waste in the Pacific Ocean, 16 SW. J. INT’L L. 265, 266−67 (2010). 11 Id. 12 Id. 13 Olga Goldberg, Biodegradable Plastics: A Stopgap Solution for the Intractable

Marine Debris Problem, 42 TEX. ENVTL. L.J. 307, 310 (2012). 14 Id. 15 Jessica R. Coulter, A Sea Change to Change the Sea: Stopping the Spread of the

Pacific Garbage Patch with Small-Scale Environmental Legislation, 51 WM. & MARY L. REV. 1959, 1960 (2010).



plastics, which is significant because “[r]educing the influx of plastic is important . . . sea animals often mistake plastics for food.”16 In fact,

86 percent of sea turtle species, 44 percent of sea bird species, and 43 percent of marine mammal species are prone to ingesting marine plastic. The aquatic plastic refuse has health implications for humans, as well. Plastics release chemical additives, pesticides, and other pollutants into the tissues of marine organisms and the ocean itself. These substances then find their way up the food chain into the human diet.17

It therefore seems clear that the Pacific Garbage Patch is not only a massive problem in terms of its sheer magnitude, but also because it has the potential to seriously and negatively affect human health.

B. A Glancing Overview of Past Attempts to Address the Pacific Garbage Patch

Much like any area of public international law, international environmental law has been, and continues to be, a work in progress. While there have been several arguably unsuccessful attempts to mitigate environmental damage, it is hard to point to one public international law regime that has truly been effective in addressing the environment. When compared to other areas of public international law—such as the laws or regimes governing war, territorial disputes, or the formation of economic or military alliances inter alia—international environmental law is very much in its infancy. This is evidenced by the fact that most public international law regimes governing the environment have only come into force within the last century, whereas there is ample evidence of millennia old attempts to craft laws regarding war and trade among nations.18 It would be unfair, therefore, to condemn international environmental regimes entirely, as they have not had the benefit of centuries of use and development, and few of them number among those treaties or regimes considered to have hardened into custom. There are, as with any general rule, exceptions to the notion that environmental treaties have been largely unsuccessful, some of which will be discussed later in this paper.

16 Id. at 1962−63. 17 Id. 18 See generally Judith Gail Gardam, Proportionality and Force in International Law,

87 AM. J. INT’L L. 391 (1993) (explaining that views of necessity and proportionality have evolved over the centuries).




Typically, once a legal norm or principle gains sufficiently widespread practice among nations over time, and those nations practice said norm due to opinio juris, that norm or principle is considered crystallized into custom.19 Opinio juris is defined as the practice of a norm or principle by a government, due to the belief that this practice is legally required.20 While it is true that generally speaking, states are only bound by the obligations to which they have consented, international customary law provides us with a universally binding and applicable set of laws.21 It is widely agreed that the “Stockholm Declaration” has crystallized into custom through this process, but beyond this highly aspirational treaty, few environmental regimes have hardened into custom.22

There is no treaty of any importance specifically designed to address the Pacific Garbage Patch. Further, there is no international customary law that exists to compel states to either cease emitting land-based rubbish entirely, or clean the Garbage Patch.23 There is, however, a treaty that does relate to the use and management of the seas and might, if modified somewhat, provide a vehicle to achieve a solution to the Pacific Garbage Patch; that treaty is the United Nations Convention on the Law of the Sea.24 Like other Conventions, the United Nations Convention on the Law of the Sea, or UNCLOS, has enjoyed several incarnations, with the most recent, the third United Nations Conference on the Law of the Sea, called UNCLOS III, being crafted in the years leading up to 1982.25 It did not, however, enter into force until 1994 when it obtained its sixtieth signatory; it is, therefore, a rather new treaty.26

19 Malcolm N. Shaw, Customary International Law, LEGAL INFORMATION INSTITUTE (Mar. 31, 2014, 12:34 PM), http://www.law.cornell.edu/wex/customary_international_law.

20 Id. 21 Id. 22 Brian R. Popiel, From Customary Law to Environmental Impact Assessment: A New

Approach To Avoiding Transboundary Environmental Damage Between Canada and the United States, 22 B.C. ENVTL. AFF. L. REV. 447, 457 (1995).

23 See generally Jared R. Wigginton, Governing a Global Commons: Sharks in the High Seas, 25 VILL. ENVTL. L.J. 431, 456 (2014).

24 See generally id. at 437−41. 25 The United Nations Convention on the Law of the Sea (A historical perspective),

UNITED NATIONS, http://www.un.org/depts/los/convention_agreements/convention_histor ical_perspective.htm#Third Conference (last visited Mar. 7, 2017).

26 Id.



UNCLOS generally speaking, outlines the agreed upon rights and obligations of signatory states in their use of the oceans.27 It is clear, though, that UNCLOS III “is not a powerful tool for combating the Pacific Garbage Patch because it is essentially a ‘bare framework’ for protecting the marine environment.”28 UNCLOS III does not contain binding provisions to clean up rubbish floating in the seas, such as the Pacific Garbage Patch.29 For example, consider Article 207 of the treaty, which encourages signatory states to “adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources . . . .”30 Article 207 hardly confers more than a perfunctory obligation; signatories are merely encouraged to adopt laws aimed at preventing pollution of the marine environment, but no concrete means of doing so is outlined, and no minimum standard or timetable for such laws is imposed.31 There is nothing in Article 207 that actually compels a state to do anything concrete, and instead appears to be a highly aspirational article.32 Perhaps with even less coactivity, the treaty provides that “[l]aws, regulations, measures, rules, standards . . . shall include those designed to minimize, to the fullest extent possible, the release of toxic . . . substances . . . into the marine environment.”33

Another sterling example of the overly general and aspirational nature of UNCLOS III can be found in Article 192, which “merely enunciates a general obligation on the part of states to protect and preserve the marine environment.”34 In fact, Article 192 simply declares that “[s]tates have the obligation to protect and preserve the marine environment.”35 Considering the above articles, it seems that UNCLOS III “is more concerned with defining the jurisdictional

27 Jessica R. Coulter, A Sea Change to Change the Sea: Stopping the Spread of the Pacific Garbage Patch with Small-Scale Environmental Legislation, 51 WM. & MARY L. REV. 1959, 1966 (2010).

28 Id. at 1966−67. 29 Id. at 1967. 30 United Nations Convention on the Law of the Sea art. 207(1), Dec. 10, 1982, 1833

U.N.T.S. 481. 31 Coulter, supra note 27, at 1967. 32 Id. 33 United Nations Convention on the Law of the Sea, supra note 30, at art. 207(5). 34 Yvonne L. Tharpes, International Environmental Law: Turning the Tide on Marine

Pollution, 20 UNIV. MIAMI INTER-AM. L. REV. 579, 612 (1989). 35 United Nations Convention on the Law of the Sea, supra note 30, at art. 192.




rights and obligations of flag, coastal, and port states than it is in elaborate substantive standards.”36

Therefore, while UNCLOS III may contribute to the discussion by creating aspirational goals due to of its lack of coactivity, it fails to confer any meaningful obligation on any of the leading contributors of trash to the Garbage Patch (the United States, Mexico, Taiwan, Japan, and China).37 It would, after all, be next to impossible to determine whether a state was trying to honor its obligation to “craft laws to prevent pollution” or “protect its marine environment” as these are broad and amorphous obligations at best.

II THE FAILINGS OF PUBLIC INTERNATIONAL LAW TO ADDRESS THE

ENVIRONMENT

One might wonder as to why regimes like UNCLOS III are so aspirational and amorphous; it seems that these regimes exist only for lack of a more plausible alternative. This is not to suggest, as some critics of public international law might, that most states are not interested in addressing the growing toxicity of environment. Nor is this intended to suggest that states merely ratify treaties to enjoy the benefits of appearing to address the situation while not actually doing so. Rather, it lends credence to the notion that it is extremely difficult to obtain meaningful consensus amongst the multitude of states of the world as to what must be done and who should bear the burden of doing it, rather than as to whether something must be done. There appears to be two principal challenges to crafting a meaningful coactive regime that would actually create obligations for member states. Those two challenges are: (1) state sovereignty in the international realm, and (2) the tension between universality and coactivity in international regimes.

36 Tharpes, supra note 34, at 612. 37 Id.



A. The Marquis Challenges Presented by State Sovereignty

Sovereignty is the fundamental concept around which international law is organized.38 Indeed, “[o]f all the rights that can belong to a nation, sovereignty is doubtless the most precious.”39 Therefore, the importance of state sovereignty upon public international law cannot be overstated. The golden rule in public international law is almost a truism: states are only bound by that to which they consent to be bound.40 There are exceptions, of course, such as international custom, which is applicable to all states. Another way of stating the above, however, is to say that all internationally recognized states enjoy sovereignty, and all sovereigns, barring some narrow and uncommon exceptions, are the absolute masters of their sovereign territories and of the governance thereof.41 Therefore, it would be impossible to compel a sovereign state to engage in, or to refrain from engaging in, one or another course of action (such as dumping rubbish in the Pacific Ocean) without their consent to be bound to an obligation resulting from an international regime or treaty that they have ratified.42

In his extensive treatment of the ongoing evolution of state sovereignty in international law, John A. Perkins stated that

[i]n the twentieth century, the process by which principles become binding international law has been defined on the basis that international law becomes binding on states by virtue of their consent, a position grounded in the premise that in a world of independent states, ultimate sovereignty resides in those states.43

38 Patricia A. McKeon, An International Criminal Court: Balancing the Principle of Sovereignty Against the Demands for International Justice, 12 ST. JOHN’S J. LEGAL

COMMENT. 535, 536 (1997) (citing Claudio Grossman & Daniel D. Bradlow, Are We Being Propelled Towards a People-Centered Transnational Legal Order?, 9 AM. U. J. INT’L L. & POL. 1, 1 (1993)).

39 Michael Ross Fowler & Julie Marie Bunck, LAW, POWER, AND THE SOVEREIGN

STATE: THE EVOLUTION AND APPLICATION OF THE CONCEPT OF SOVEREIGNTY 11 (1995).

40 Joshua A. Decker, Is the United States Bound by the Customary International Law of Torture? A Proposal for ATS Litigation in the War on Terror, 6 CHI. J. INT’L L. 803, 820 (2006).

41 Id. 42 See generally MALANCZUK, PETER, AKEHURST’S MODERN INTRODUCTION TO

INTERNATIONAL LAW 35 (Routledge 2002). 43 John A. Perkins, The Changing Foundations of International Law: From State

Consent to State Responsibility, 15 B.U. INT’L L.J. 433, 437 (1997).




Perkins goes on to state that:

[t]he theoretical imperative of state consent for any state to be bound has thus been acknowledged and supported by a troika of concepts: (a) a requirement that state practice manifesting consent is extensive and virtually uniform on the point established; (b) recognition that states that indicate their dissent while a principle is in the process of development shall not be bound; and (c) treating other states that remain silent as being bound by their implicit consent.44

The only exception to the general canonical view of state sovereignty as supreme in international law, is that once a practice, principle, norm, or series thereof, becomes binding custom, as “established by general practice based on opinio juris,”it also becomes applicable even to states that do not consent to it.45 Perkins goes on to cite several example—from the Nuremburg Tribunals case-law, human rights treaties, and environmental law regimes—where traditional notions of state sovereignty have been, or are being, challenged.46 Germaine to Perkins’s argument is the notion that:

[e]volving international environmental law challenges the premises of the traditional canon for the development of customary international law . . . [d]evelopments proceed through . . . incrementally negotiated steps . . . [n]evertheless, even as negotiations proceed formally in this manner, a parallel framework of substantive legal principles has come to be recognized as binding on all states.47

Perkins’ view of the evolution of notions of sovereignty might suggest that sovereignty is not as absolute as it once appeared to be Perkins cites, among other treaties and cases, the Stockholm Declaration as evidence that norms may be imposed upon unwilling states due to an evolution away from traditional notions of sovereignty.48 Some might point out, however, that the Stockholm Declaration is international customary law (because of its near-universal acceptance and widespread practice due to opinio juris), and yet it is completely unable to pierce the veil of state sovereignty.

44 Id. at 440. 45 Id. 46 Id. 47 Id. 48 Id.



Perhaps this is because it too is a soft-law, aspirational framework, and it would be next to impossible to determine noncompliance with its very soft-law provisions. These provisions more closely resemble universally binding suggestions rather than universally binding law. Perkins does admit, however, that “[t]he sovereignty of states has been and continues to be an essential principle of international law. Its core has been a principle of jurisdiction within the territory of the state. This was true, even when sovereignty was regarded in more absolute terms than it can be today.”49 While some scholars, like Perkins, offer alternative views on the actuality of state sovereignty in international law, it is nevertheless one of the core principles around which all international law is based.

Despite many contemporary notions of the evolution and weakening of the importance of state sovereignty in the international order, many continue to assert its preeminent position as chief among the multitude of principles that govern the international realm. Brad Roth, for example, states that “[s]overeignty . . . operates as a set of legal limitations on the establishment and enforcement of international norms. Though frequently counterintuitive, these legal limitations are supported by substantial moral and political considerations, and they should be overridden only in a limited range of cases.”50 Roth describes sovereignty in the international realm as “the reciprocal terms of the recognition that members of an international legal order confer on one another. Among the term’s primary implications is a presumptive duty, on the part of each of the entities bearing equal juridical status, to respect the outcome of political processes internal to the others.”51

Whether one prefers Perkins’ “evolution of sovereignty,” or Roth’s traditional explanation of sovereignty, there can be little doubt that state sovereignty is of paramount importance in the international realm. It is therefore, unlikely to be meaningfully pierced or usurped without force, be it severe diplomatic or economic pressure, or perhaps military force. Therefore, any international law based solution to the growing toxicity of the environment will likely need to be one which respects state sovereignty, as any other approach seems unrealistic at best.

49 Id. 50 Brad R. Roth, The Enduring Significance of State Sovereignty, 56 FLA. L. REV. 1017,

1023 (2004). 51 Id.




B. The Tension Between Universality and Coactivity

There is a clear need for broad acceptance by sovereign states of an environmental regime or treaty for it to be effective. If only a few states agree to honor any binding obligations that an environmental regime might confer, transnational problems, like the growing toxicity of the environment, are not likely to be resolved. Even if a handful of similarly minded sovereign states (for example, Canada, Great Britain, Australia, and New Zealand) craft a public international law regime that addresses the environment (or the Garbage Patch, specifically), and even if this regime conferred concrete obligations upon its member states, the regime would have little effect because many of the largest contributors to the problem would be entirely omitted from the process. A broadly accepted regime alone does not create a functional solution, as evidenced by UNCLOS III which has 157 signatories to date yet is only an aspirational framework.52

It seems logical to infer that the fewer member states a regime has, the more likely the regime is to achieve meaningful, concrete provisions. It will likely also confer effective obligations upon its member states to be coactive. On the other hand, the more signatories a regime has, the more it tends to resemble UNCLOS III and lack any meaningful coactivity.

In 1996, member states adopted the London Protocol, an additional Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.53 The London Protocol is a salient example of a low-membership treaty that confers significant and coactive obligations upon its member states. The aforesaid protocol establishes a regime which controls, and to some degree prevents, international marine pollution by prohibiting the dumping of certain hazardous materials into the oceans.54 The London Protocol contains a permitting scheme that requires member states to obtain a permit before dumping designated hazardous materials into

52 U.N. Division for Oceans Affairs and the Law of the Sea, Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements (Feb. 3, 2017), http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifica tions.htm.

53 Convention on the Prevention of Marine Pollution of Dumping of Waste and Other Matters, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 138.

54 Id.



the oceans.55 The London Protocol, which was designed to eventually replace the 1972 Convention, changes the direction of efforts aimed to address the regulation and use of the oceans as a dumping ground for rubbish.56 The Protocol creates a “reverse list” of items, the dumping of which is prohibited without a permit.57 The London Protocol favors the so-called “precautionary approach” by declaring that “appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.”58

To date, eighty-seven states have signed onto the Convention, but only forty-two to the London Protocol.59 China has only ratified the less coactive 1972 Convention, but not the London Protocol, and India has not signed any version of the Convention.60 The United States has been a signatory of the Convention since 1998 but has yet to ratify it.61 This again lends credence to the notion that the more coactive a regime becomes, the less universally accepted it will be.

If the London Protocol could gain the widespread universality enjoyed by UNCLOS III, it might actually achieve what both presently fail to do: meaningfully address the Pacific Garbage Patch. Neither UNCLOS III nor the London Protocol were specifically designed to address the Pacific Garbage Patch, but where both separately fail (the London Protocol being coactive, but too narrow in its membership, and UNCLOS III being universal in its membership, but highly aspirational), together they might achieve a truly effective solution.

There are, of course, several treaties that facially seem to challenge the universality versus coactivity paradigm proposed here. The Montreal Protocol of 1987 is one: “[a]t last count, 183 nations have

55 Id. 56 Id. 57 Convention on the Prevention of Marine Pollution of Dumping of Waste and Other

Matters, supra note 53, at annex I. 58 Id. at art. 3. 59 Convention on the Prevention of Marine Pollution of Dumping of Waste and Other

Matters, http://www.imo.org/About/Conventions/ListOfConventions/Pages/Convention-on -the-Prevention-of-Marine-Pollution-by-Dumping-of-Wastes-and-Other-Matter.aspx (last visited Sept. 28, 2014).

60 Id. 61 Id.




ratified the . . . Protocol.”62 It is undeniably a high-membership treaty, yet according to Cass Sunstein, and indeed to many observers of international law regimes governing the environment, it was a resounding success. Therefore, in defense of the universality versus coactivity paradigm, it would be prudent to consider the outlier in the field of environmental regimes; the success story among high-membership public international law regimes geared towards ameliorating the growing toxicity of the environment. Cass Sunstein’s in depth treatment of the Montreal Protocol lends us a useful lens through which to view the aforesaid. Contrasting the levels of success between the Montreal Protocol, clearly a high-membership treaty addressing the depletion of the Ozone Layer of the atmosphere, and the Kyoto Protocol, another high-membership treaty aimed at reducing the levels of greenhouse gas emissions world-wide, Sunstein concludes that the United States (as well as other industrialized nations) were markedly more committed to the former than the latter.63 In Sunstein’s view, the Kyoto Protocol should be considered a failure because “[s]ome of the ratifying nations, including China, have no obligations under the Protocol at all, despite their significant emissions of greenhouse gases.”64 In other words, according to Sunstein, Kyoto failed to meaningfully remedy climate change (in addition to the United States declining to participate) due to its lack of coactive provisions; it did not confer any meaningful obligations upon its many member states, particularly the worst contributors to the problem.65

The Montreal Protocol, on the other hand, is viewed as a success because “[n]ations are complying with their obligations; global emissions of ozone-depleting chemicals have been reduced by over 95%; and atmospheric concentrations of such chemicals have been declining since 1994.”66 While Sunstein offers a myriad of well-reasoned explanations for the willingness of industrialized nations to

62 Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 HARV. ENVTL. L. REV. 1, 7 (2007) (quoting Scott Barrett, ENVIRONMENT & STATECRAFT 239 (2005)).

63 See generally id. 64 Id. at 4. 65 Id. 66 Id. at 3 (quoting Scott Barrett, ENVIRONMENT & STATECRAFT 239 (2005)).



honor their obligations in the Montreal Protocol, these reasons, while complex, ultimately boil down to a cost-benefit analysis on the part of the industrialized nations. It was in their interests to honor the Montreal Protocol for economic reasons, while it was not so in the case of the Kyoto Protocol.67

The fact that Sunstein credits self-interest for signatory nations’ compliance bolsters the universality versus coactivity paradigm discussed here. In the majority of cases, as with UNCLOS III, it is not likely in the interests of the principal polluters of the Pacific Ocean to adhere to hard law (coactive) provisions if doing so will burden their economies. Furthermore, the success of the Montreal Protocol, if in fact due to vigorous participation of industrialized nations as Sunstein suggests, demonstrates that a treaty succeeds because it counts the most powerful and wealthy of nations among its member states. These members willed it to succeed, so therefore it is unlikely its success resulted from the strength of its provisions or its high membership. Rather, it is more likely it succeeded due to external political factors and the will of a few committed powerful states. If the United States, as well as other powerful and wealthy nations, applied diplomatic pressure to the membership of the Montreal Protocol in favor of its provisions and targets, they could have been the least coactive of soft law provisions and would still have been successful. Diplomatic pressure can be coercive when wielded by the prestigious and powerful, and could well have supplied the coactivity to an otherwise toothless treaty. Therefore, what on its face appears to belay the universality versus coactivity paradigm, upon closer review actually supports its plausibility.

III A SOLUTION PROFFERED: THE UNIVERSALITY OF UNCLOS III

COMBINED WITH THE COACTIVITY OF THE LONDON PROTOCOL

When discussing the protection of sharks in the commons from an American perspective, Jared Wigginton critiqued UNCLOS III as being overly aspirational and lacking hard law provisions.68 Wigginton’s position is that the current regimes governing the protection of sharks are inadequate as they are largely soft law approaches that fail to compel states to refrain from exploiting sharks

67 Id. at 7. 68 Wigginton, supra note 23, at 456.




in an unsustainable manner (and is therefore, using the syntax of this paper’s argument, not coactive).69 UNCLOS III’s gaps needed to be filled by using hard law provisions to better address the particular environmental concern (i.e., the protection of sharks on the high seas). Not dissimilarly, this paper seeks to achieve filling UNCLOS III’s “gaps” to halt the growth of the Pacific Garbage Patch. Here, however, it is not the crafting of new hard law provisions that will be needed; rather, it is the absorption of existing hard law provisions, those contained in the London Protocol, which is called for.

Having established the tension between universality and coactivity in the context of public international law relating to the environment, and having determined that UNCLOS III, while broadly accepted and therefore universal in nature, fails to confer any meaningful obligations upon its member states, the discussion now turns towards a possible solution. It is important to determine whether UNCLOS III could feasibly absorb the London Protocol so that together they might achieve what they separately fail to do, that is, to meaningfully ameliorate the growing toxicity of the environment, and specifically to halt the growth of the Pacific Garbage Patch.

As UNCLOS III is the higher membership treaty of the two discussed here, the smaller treaty (The London Protocol) should be absorbed, in order for the two to become effectively combined. It would be superfluous to discuss the London Protocol’s amendment procedures, as the proposal contained here is not so much a merger of the two treaties, as it is an incorporation by reference of the smaller. UNCLOS III contains two articles that discuss the process of amending the treaty: Articles 312 and 313.70 Article 312 provides that “[a]fter the expiry of a period of 10 years from the date of entry into force of this Convention, a State Party may . . . propose specific amendments to this Convention . . . and request the convening of a conference to consider such proposed amendments.”71 Article 312 goes on to state that “[i]f, within 12 months from the date of the circulation of the communication, not less than one half of the States

69 Id. 70 United Nations Convention on the Law of the Sea, supra note 30, at 133. 71 Id.



Parties reply favourably . . . the Secretary-General shall convene the [amendment] conference.”72

UNCLOS III entered into force in 1994, it was required that a ten-year period pass before amendments could be executed per the amendment procedures of the treaty.73 As of the writing of this paper, twenty-three years have elapsed since that time. Therefore, the necessary time has elapsed and the amendment procedure set out in Article 312 could be initiated to incorporate the London Protocol’s principles into UNCLOS by reference. Article 313, which contains a simplified amendment procedure, provides in relevant part that “[a] State Party may . . . propose an amendment to this Convention . . . to be adopted by the simplified procedure set forth in this article without convening a conference.”74 Article 313 goes on to state that “[i]f, within a period of 12 months from the date of the circulation . . . a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. . . .”75

Pragmatically speaking, it is highly unlikely that absolute consensus could be reached among UNCLOS III’s 157 signatories regarding the incorporation of the London Protocol by reference. Therefore, Article 313’s simplified amendment process seems an unlikely vehicle for such an endeavor as it requires that no member state object to the proposal.76 The more likely vehicle seems to be the amendment process found in Article 312. While Article 312 requires one half of UNCLOS III signatories to reply favorably in order to initiate an amendment conference, it is not an unfathomable possibility.77 By logical inference, it can be surmised that if seventy-nine favorable votes could be obtained from signatories, Article 312 would allow for an amendment conference to be convened. Recalling that the London Protocol already has forty-two signatories, almost all of whom are already members of UNCLOS III, such a move would not necessitate persuading seventy-nine heretofore un-persuaded nations. This is because the London Protocol signatories are also UNCLOS III member states, and, barring any major political wind

72 Id. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id.




change in their domestic political scenes, they would most likely find themselves in the favorable vote column.

Therefore, this paper proposes that the best way to address the ongoing growth of the Pacific Garbage Patch, would be for an UNCLOS III member state to propose convening an amendment conference per Article 312, with the goal of adopting the London Protocol’s principles by reference into UNCLOS III; specifically the London Protocol’s “reverse list” (banning dumping of items contained thereupon without the obtaining of a permit) and the “precautionary principle” it espouses. If successful, it would confer the concrete obligations contained in the London Protocol on all of UNCLOS III’s very broad membership. While this would not necessarily result in the cleaning up and removal of the rubbish comprising the Pacific Garbage Patch, it would go a long way towards ceasing its growth by preventing further dumping.

Generally speaking, the growing toxicity of the environment will be difficult to clean while it continues to expand. Therefore, its growth must be stopped before its size can be reduced. Halting the Pacific Garbage Patch’s growth would be a logical first step towards ameliorating the situation, and while it might not solve the problem in its entirety, the Pacific Garbage Patch is a problem of such magnitude and size it will likely not be solved with a single action or plan. Rather, it will require a series of initiatives designed towards its resolution. Nevertheless, the aforementioned solution offers a salient first-step in the right direction. If the London Protocol is successfully absorbed by reference into UNCLOS III, the tide of rubbish being dumped into the Pacific Ocean, and ultimately finding its way into the Pacific Garbage Patch, would effectively be slowed, if not entirely stopped.

A. Whether This Solution Could Be Extrapolated to Apply to Other Regimes

If we assume that the solution emerging from this discussion, ameliorating the universality versus coactivity paradigm achieved by way of the absorption of the London Protocol’s principles by UNCLOS, would function in the instance of the Pacific Garbage Patch, it becomes prudent to address whether such an avenue might exist for the resolution of other similarly situated issues. Considering



the breadth and variance of treaties and regimes in the international realm, and the myriad of disparate challenges that they address, it is evident that the specific solution proffered here (an Article 312 amendment to UNCLOS) might not serve as a blueprint in crafting a broadly applicable solution to the universality versus coactivity paradigm.

While the above could be viewed as a challenge to the approach discussed here, upon further analysis, it appears to support the notion that this approach could serve to craft a general tactic that might help to shift the focus of the efforts of internationalists seeking to resolve the growing toxicity of the environment. At present, the focus of environmental stakeholders (or parties interested in the resolution of the growing toxicity of the environment) revolves around crafting new multilateral agreements, not the exploitation of presently existing agreements to achieve new ends. In other words, rather than altering or re-tooling the functional mandates and effects of presently existing regimes, the focus of internationalists has been to expend time, money, and political capital, to create new treaties or regimes (which will likely fall victim to the universality versus coactivity paradigm).

Therefore, while the specific solution offered here to address the growing toxicity of the Pacific Garbage Patch might not be applicable elsewhere, the focus it employs almost certainly could be utilized as a general lens through which to view public international law regimes moving forward. Additionally, it could signal a tactical shift in the environmental theater of operations. Instead of expending resources on regimes destined to fail due to the universality versus coactivity paradigm, it is preferable to focus on seeking out mechanisms in existing high-membership, low-coactivity treaties, by which low-membership, high-coactivity treaty provisions or principles might be absorbed from the latter into the former. Most treaties have amendment processes built into them, and if we assume that these processes are achievable, this becomes a salient tactical approach for internationalists to pursue.

This tactic would not be without controversy, it would not be met with passive acceptance on the part of states unwilling to accept newly incorporated obligations, and it would likely cause those reticent objectors to protest its use. This must not, however, detract from a discussion regarding the viability of employing such a tactic. Consensus building is a long process, perhaps too long to be successful in addressing the time-sensitive growing toxicity of the environment. Also, while many areas of public international law have




enjoyed centuries of development, and are now able to rely on jus cogens and other customary international law of near-universal applicability, public international law governing the environment is in its infancy. If for no other reason than pragmatic functionality, the international law approach to the growing toxicity of the environment must become one that more closely resembles Realpolitik. Seeking out existing high-membership treaties that can address a given environmental issue (but are not currently used to address that issue), and analyzing their amendment processes to discover whether it is possible to incorporate new co-active principles or provisions into them, will signal a shift from an aspirational consensus-based approach to one born of pragmatic thought. It will raise the ends above the means and increase the likelihood of successfully addressing the growing toxicity of the environment, before the challenge’s time has passed, and before the opportunity to resolve the issue has faded.

B. Environmental Realpolitik

This discussion is not the first to suggest the incorporation of Realpolitik into a field other than International Relations. The term has been applied to many fields, both international and domestic, often in an effort to lend greater functionality and pragmatism to an endeavor. One example of a crafty piece of rhetorical innovation using Realpolitik can be found in Kim Lane Scheppele’s discussion on the protection and promotion of “social rights.”78 Realpolitik is not a term often associated with the domestic arena outside of partisan politics, much less so in a socio-economic arena such as that occupied by Scheppele’s “social rights.” If in fact Realpolitik can be adapted to fit such a dissimilar arena from that of its inception, then surely the same can be successfully achieved in the rhetoric, discourse, and tactics of the international environmental law realm.

In order to determine its salience as a tool for the promulgation of coactive international environmental law, this discussion must define the term as it may apply here. When speaking on the renaissance of Realpolitik as a useful tool in the realm of International Relations

78 See Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 82 TEX. L. REV. 1921 (2004).



during a lecture at the John W. Kluge centre, historian John Bew stated:

So the premise of my lecture today is to demonstrate that Realpolitik is back in fashion again . . . But I would suggest that Realpolitik was already undergoing a renaissance in Anglo-American political discourse before the events of the last few months . . . This time around however, Realpolitik has some new friends and I would say unlikely advocates . . . Thus far, I have used Realpolitik in a conventional sense, that is both positively and pejoratively, and interchangeably with a series of other evocative terms, Machiavellian, cold-blooded, self interested, realist, and realistic.79

Bew’s view on contemporary Realpolitik as an evolving concept, with new, atypical adherents (such as environmental activists), supports the present discussion of the viability of the theory as a lens through which to modernize salient and workable solutions to the growing toxicity of the environment. Bew went on to state that “[r]eal Realpolitik is more than this . . . [it] was an early attempt to answer a conundrum . . . at the heart of Anglo-American foreign policy . . . that is how to achieve Liberal enlightened goals in a world that does not follow Liberal enlightened rules . . . .”80

If Realpolitik was, at the time of its inception, useful in promoting “[L]iberal enlightened goals in a world that does not share them. . .” then surely it must be of similarly powerful use in promoting such goals now.81 The essence of the classical Liberal conundrum described by Bew applies perfectly to this situation of the growing toxicity of the environment. When democracy and the modern republic arose, and human rights and individual rights were minority positions held by a few enlightened states, Realpolitik provided a vehicle to coactively promote the dissemination of Liberal principles to an otherwise minded world. Now that environmental conservation has risen as a minority, enlightened aim, and since it is (like individual rights and democracy were during the time of classical Liberalism) the minority position held by a few noble states, Realpolitik could also promote the dissemination of such principles in an otherwise minded world. The incorporation by reference of key principles contained in the London Protocol into UNCLOS, by way of

79 Webcast transcript of John Bew, Real Realpolitik: A History, THE JOHN W. KLUGE

CENTER (Apr. 10, 2014), http://www.loc.gov/today/cyberlc/feature_wdesc.php?rec=6285. 80 Id. 81 Id.




an amendment convention, is but one example of this approach, but it does demonstrate the theory’s applicability to the arena of international environmental regimes as they relate to the growing toxicity of the environment.

CONCLUSION

While public international law is not a new phenomenon, it’s environmental subset, in historical terms, is rather novel. It would be unfair to label treaty-based efforts to ameliorate the growing toxicity of the environment as complete failures, if for no other reason than they have yet to accrue the benefit of time and evolution. They are but a step upon a long path. Without them, the next step could not be taken. Unfortunately, time continues to pass, and with its passage the condition of the environment continues to deteriorate. Ultimately, the eons long evolution enjoyed by other areas of public international law may be a luxury that international environmental law simply cannot afford to rely on. Therefore, it is the approach of this paper to postulate a solution to the universality versus coactivity paradigm, which utilizes the desirable elements of each to complement the faults of the other. While in the instance of UNCLOS III’s creation it may have been impossible to craft coactive provisions due to the lack of political will, that may no longer be the case today. By amending UNCLOS III, in effect by convincing a few dozen member states to agree to incorporate the London Protocol by reference, a new sort of treaty would be born of the two. This would entail a high-membership treaty with coactive provisions governing the amelioration of the growing toxicity of the environment. Unlike the Montreal Protocol, it will not rely upon the diplomatic coercion of a few industrialized states, and unlike Kyoto or UNCLOS III (in its present incarnation), it will not be a mere aspirational framework.

Such a step, in and of itself, will not heal the Pacific Ocean, nor will it remedy the toxicity of the environment, but it will significantly, if not completely, halt the growth of this toxicity. Although it may simply amount to just another step upon a long path, it would move the issue one step further towards an urgently needed solution.



The Pacific Garbage Patch, Everyone’s Responsibility … Protocol. By way of the above comparator, this paper will highlight the tension between universality and coactivity in public

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