Environmental Engineering Reference
In-Depth Information
polluting activities according to its industrial policy. An activity permitted by
one state can, however, cause or be at risk of causing environmental harm in
the territory of another.
In relation to environmental protection, there are two main rights under
state sovereignty: a state can invoke territorial sovereignty to justify its irre-
sponsible environmental policy, or to defend itself against environmental harm
from another state. Paradoxically, the same principle justifi es pollution and
allows a state to fi ght against it. State A may not interfere with the environ-
mental protection of state B. On the other hand, if state B causes pollution in
state A, state A is entitled to invoke its territorial sovereignty: it can send a
'diplomatic note' to state B, stating that B is not at liberty to use the territory
of state A as its 'dumping ground'.
Two well-known cases of transboundary pollution come from the USA:
The Rio Grande fl ows from the state of Colorado and becomes the boundary
river between the USA (Texas) and Mexico before emptying into the Gulf of
Mexico. In 1894, Mexico sent a diplomatic note to the US Secretary of State
about a problem in the Mexican border towns: farmers on the US side had
diverted water from the river for irrigation, reducing the amount of water on the
Mexican side and severely impacting on farming.
Mexico sent another notifi cation to the US Secretary of State at the end of
1895. The State Department did not have a lawyer of its own at that time, so the
Secretary of State requested legal advice from the Attorney General as Mexico
had relied on its rights under international law.
Attorney General Judson Harmon's legal advice to the Secretary of State was
clear: every state enjoys absolute territorial sovereignty, in this case implying that
the USA may administer the river on its side of the border just as it wants to.
This legal advice became known as the Harmon doctrine: a state can operate in
its own territory just as it wants to, without regard for the interests (and alleged
rights) of other states.
Paradoxically, despite becoming an established doctrine, this piece of legal
advice did not in any way affect US actions when settling the dispute with
Mexico. Instead of relying on it in the negotiations, the USA referred to the
principles of equity.
In the 1920s, the USA was affected by transboundary pollution in the so-
called Trail Smelter case: a zinc smelter in Trail, Canada, 10 miles from the border
(between British Columbia and the state of Washington) was emitting sulphur
dioxide which was being carried to the US side, causing damage to the crops
and property.
US private entrepreneurs and citizens tried to sue the smelter company (the
Consolidated Mining and Smelting Company of Canada Ltd) under the US
legal system but the legal systems of the USA and Canada at the time made this
impossible. They therefore referred the matter to the USA to exercise diplo-
matic protection on behalf of its citizens by making it an international dispute
against Canada.
 
 
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