Should Trees Have Standing? by Christopher D. Stone;

Author:Christopher D. Stone;
Language: eng
Format: epub
Publisher: Oxford University Press USA
Published: 2010-06-15T00:00:00+00:00

(1) Invasion of Territories

Speaking realistically, international law does not enter the picture until something a nation does—releasing a radioactive cloud, for example—sweeps across its boundaries and damages a neighboring country. In those circumstances it is generally agreed—at least it is universally verbalized—that the injured neighbor has grounds for diplomatic and legal remedies. In the 1940s the United States successfully sued Canada over sulfur fumes from a Canadian lead smelter that were wafting across the boundary into the state of Washington.6 The United States once even acquiesced to a Mexican diplomatic demand that we eliminate offensive transboundary odors that were blowing south from a U.S. stockyard.7 Such results in the transboundary context are frankly rare; but relief is at least a theoretical option that would-be polluters have to consider in the design of factories, etc.

When, however, fumes blow across a frontier, not into a neighboring nation, but up into the commons region of higher atmosphere, or out across the sea, however many soft declarations may denounce it,8 resort to law becomes appreciably more problematic. In a typical nation-to-nation transboundary conflict, such as the United States–Canada case referred to, one can assume there are officials of the injured state on hand at the site of the harm to inspect the damage and determine where it is coming from. In that dispute, the fumes could be characterized as an “invasion” (however modest) of U.S. sovereignty, the sort of thing international law has customarily sought to mend.

By contrast, when the open sea or the atmosphere is degraded, who is on hand to keep watch? Are significant loadings of heavy metals working their way into the deep seas and seabed? If so, are the levels dangerous—are they insinuating their way into the food cycle?—and who is responsible for cleaning them up? To answer these questions, even to gather the relevant facts in a scientifically and internationally credible way, goes beyond any single nation’s ordinary motivation and competence; it practically necessitates a multinational coordinated effort.

Even then, if the appropriate institution could be established, and the monitors could identify substantial and worrisome changes in the environment and pin down their source, there would remain judicial obstacles of legal interest and standing. If someone should come onto your yard and steal your pet turtle from your pond, you would have a suit because it would be a trespass and injury to your property. But if some nation’s fleet of fishing vessels, sweeping the high seas with nets, obliterates scores of rare sea turtles or dolphins, customary international law (that is, international law as it stands absent some specially tailored treaty) is unlikely to grant a remedy to any nation that objects.9 Who can prove that the destroyed creature would have been captured by the objecting nation? On the high seas, because the turtles are no one’s, it is unclear that anyone has the legal interest the law requires to complain. Besides, what is the market value (the law would want to know) of turtles and dolphins and such?

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