Document Type

Article

Publication Date

2022

Abstract

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, or border factories, sprawl in a region twenty-five miles from the Pacific Ocean that abuts the U.S.-Mexico border. Tijuana’s population grew from 60,000 in 1950 to 2.2 million people, exacerbated by the addition of tens of thousands of displaced persons waiting in temporary shelters for asylum claims to be heard in the United States.

This Article looks at what has traditionally been the sole subject of international law and relations: sovereign States. The State remains the primary actor in international law, international relations, and along the U.S.-Mexico border, but it is not the only actor. This Article details the most important international agreements concerning the flow of waterways, the quality of water, and the respective responsibilities of the two countries. A complex legal regime comprised of treaties, Minutes, and operating procedures with States and non-state actors (NSAs) exists for the U.S.-Mexico border region. Part II of this Article highlights the diminishing role of State primacy in international law and international relations, and the rise of a new private institutional order where NSAs are increasingly part of the international legal system. Part III of this Article examines the way international law has recognized an expanded role of NSAs in transnational water pollution. Part III also explores the growing importance of international networks and the rise of human rights advocacy groups and transnational environmental non-governmental organizations ("NGOs") that monitor U.S. government legal obligations. Together with more nefarious NSAs such as anti-immigrant groups and drug trafficking organizations, these NSAs form the Border Industrial Complex that is proliferating at the U.S.-Mexico border. Part IV of this Article examines outsourcing State activities to private actors and the way this plays into the general trend toward hollowing out the State. Part V of this Article concludes with an exploration of the return of the State.

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