CLAREMONT McKENNA COLLEGE UNQUENCHABLE THIRST: WATER CONFLICT BETWEEN MEXICO AND THE UNITED STATES SUBMITTED TO PROFESSOR CAMP, PROFESSOR PITNEY AND

Transcription

1 CLAREMONT McKENNA COLLEGE UNQUENCHABLE THIRST: WATER CONFLICT BETWEEN MEXICO AND THE UNITED STATES SUBMITTED TO PROFESSOR CAMP, PROFESSOR PITNEY AND DEAN GREGORY HESS BY ELVIA ZAZUETA LEON-QUINTERO FOR SENIOR THESIS SPRING 2008 April 24, 2008

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3 Table of Contents Introduction: There is no place more unstable than the basin of rivers that cross political borders Ch.1 The factors that unite us are enough to construct a solid pedestal of enduring friendship Chapter 2: Management of water resources certainly is one of the most frustrating kinds of management conceivable Treaty of Water Boundary Treaty of Equitable Distribution of the Waters of the Rio Grande Treaty of Rectification of the Rio Grande Analysis Chapter 3: Rivers are by nature capricious Chapter 4: A long established regime of cross border environmental management has been transformed International Border and Water Commission North American Free Trade Agreement Chapter Boundary Environment Cooperation Commission and the North American Development Bank Comisión Nacional del Agua The Mekong River Commission The Nile Basin Initiative Analysis Conclusion: Fierce competition for fresh water may well become a source of conflict and wars in the future Bibliography Acknowledgements Lasting peace will come from the careful, patient, practical solution of particular problems. 1 1 Declarations by Lyndon B. Johnson (President of the United States) the 25 of September 1964 in Ciudad Juárez, Chihuahua, El Paso, Texas, in relation to the project of El Chamizal and the Rio Grande. i

4 Introduction: There is no place more unstable than the basin of rivers that cross political borders. 1 Worldwide, 263 river basins cross political borders, and 40% of the world s population lives along these basins. 2 The water resources for northern Mexico and for the southwestern United States are among those river basins. Yet amid the many issues regarding relations between Mexico and the United States migration, drug trafficking, commerce water receives little media attention. It should get more. The scarcity of water and the joint jurisdiction over rivers make the topic of water issues and treaties between Mexico and the United States one of central importance. Even though water covers 70% of the earth s surface, only 2.5% of that water is fresh water. Two thirds of the fresh water is polar ice. 3 Scarcity of fresh water stifles development and corrodes health. 4 According to estimates, by 2025 up to two thirds of the world s population will be living under severe water shortages conditions. 5 Some say that water scarcity is the worst threat to food production, 6 and Scott Fields, contributor for the Environmental Health Perspectives journal, writes, Water has even been called the next oil over which future wars will be fought. 7 In the past, water scarcity has 1 Meredith A. Giordano and Aaron T. Wolf, "Compartiendo aguas: Manejo Post-Río de las aguas fronterizas internacionales", Foro de los Recursos Naturales 27:No. 2, Departamento de Información Pública de las Naciones Unidas, February, Ibid. 3 Marisol Anglés Hernandez, Los cursos de agua compartidos entre México y los Estados Unidos de América y la variable medio ambiental. Una aproximación, Anuario mexicano de derecho internacional VI (2006) Alexander Larius, Geoffrey D. Dabelko and Aaron T. Wolf, Water, Conflict and Cooperation, Policy Brief The United Nations and Environmental Security ECSP Report Issue 10, (2004) We are running out of water, The Ecologist 29, no (1991) 1. 6 Anglés, Scott Fields, Policy: World Water Forum Diluted, Environmental health perspectives 111, no. 10 (Aug. 2003) A518.

5 2 been an issue of national security, and countries used water to gain advantage in wars. Countries would plan to position their adversaries so they could not get drinking water. Countries would also poison water flowing toward their enemies. Countries that share bodies of water have shared jurisdiction over the water flow. 9 For political and military reasons countries have sometimes restricted access to shared water supplies to neighboring countries. 10 More often, however, disputes over water between countries lead to negotiation, 11 but even in those cases, there is still tension. 12 To ease such tension, countries that share bodies of water create commissions and treaties. 13 The first water treaty between states, perhaps the first treaty ever, took place in 2500 B.C. between Lagash and Umma, two Sumerian city-states attempting to share the water of the Tigris River. 14 There is a link between conflict related to water issues among nations and the following three issues: lack of access to adequate water supplies for the population in the area; a need for joint water management, which may foster conflict because of perceived unfairness in the allocation and use of the water by the different countries; and the loss of livelihood resulting from water shortages. 15 In an attempt to mediate the conflicts arising due to shared bodies of water, nations make treaties. Water flow, however, varies 8 8 Peter H. Gleick, Water and Conflict: Fresh Water Resources and International Security, International Security 18, no. 1 (Summer 1993) Haney Doerksen, Water, Politics, and Ideology: An overview of Water Resources Management, Public Administration Review 37, no. 5 (Sept-Oct, 1977) Gleick, Water and Conflict, Ibid, Larius et al, Falkenmark, Giordano and Wolf. 15 Larius et al, 61.

6 3 from year to year, 16 and water is a hard resource to manipulate. As a result, there has been continuous conflict over water between countries since it becomes hard to meet the terms of treaties 17, especially when they provide for specific quotas of water that one country must transfer to the other. Furthermore, the need for water increases with population and development, creating a need for revision of past treaties. The perception of resource scarcity as a driver for international policy emerged in the late 1970s. With this approach came a series of new concerns for countries: 18 since those scare resources are under joint jurisdiction with another country, each country needed to make choices that not only affected its own internal politics but that also had international effects. Water clearly exemplifies the need to focus not only on the internal impact of actions concerning natural resources but also on the international effects they may have. When making water treaties, countries sharing water must take into account not only the water needed to survive, but also the water desired for other activities. The amount of water people desire usually exceeds what others think they need. 19 Often, more developed countries claim to need water for recreational purposes, such as for maintaining pools or fountains, while the least developed have a greater emphasis on agriculture. Both countries claim to need the water for legitimate purposes; however, the least developed nations often believe that the most developed nations squander water. An important consideration when signing a treaty is its equity, the balance of obligations and 16 Doerksen, C. Richard Bath, Resolving Water Disputes, Proceedings of the Academy of Political Science 34, no.1 Mexico-United States Relations (1981): Dennis Pirayes, Scarcity and International Politics: An Introduction, International Studies Quarterly 21, no.4 (Dec 1977) 564.

7 4 reasonable concessions on either side concerning needs and wants and, with that in mind, fairness of the allotted distribution. 20 The basins that cross the border between Mexico and the United States encompass all of the elements that lead to water conflict. Water in the semi-arid border is scarce and hard to control. Mexico and the United States share jurisdiction over the rivers at the border. There is a booming population on both sides of the border and not enough water resources, which leads to a lack of access to adequate water supplies. Inadequate infrastructure, especially on the Mexican side, intensifies the problems, since the lack of infrastructure prevents the delivery of potable water to everybody living at the border. Since there is joint jurisdiction and a need to share the water, there is a need to comanage the water supplies. Furthermore, cooperation is essential to ensure an adequate quality of the shared water. Finally, many people on either side of the border make their livelihood from agriculture. They may suffer from water shortages and poor water quality. The issue of water quality has been a point of contention between Mexico and the United States, since Mexico complained in the 1960s and 1970s of the salinity of the Colorado River, which was hurting the crops and thus the livelihood of Mexican farmers at the border. Mexico and the United States have participated in various treaties. These treaties have had mixed results, and often times have led to conflict and the need for the creation of new treaties or the revision of old ones. Mexico and the United States have different levels of development, so the notion of equity in said treaties is important. 19 Peter H. Gleick, Water in Crisis: Paths to Sustainable Water Use, Ecological Applications 8, no. 3 (Aug 1998) Gleick, Water in crisis 577.

8 5 Both nations have federal systems, which make water issues even more complex. Traditionally, the perception has been that foreign policy begins where domestic policy ends; however, the two merge with resources such as water. 21 Domestic considerations play a big role in shaping foreign policy even though they are not its driving force. 22 National interests collide with sub-national or local interests when developing foreign policy. 23 Cooperation ensures the survival of these policies when it comes to issues of joint jurisdiction, not only among countries, but also between states and the federal governments. The states along the U.S. Mexico border are very active in foreign policy, and American state governments do influence foreign policy debates. 24 As Mexico consolidates its democracy, the Congress is becoming more active; its influence on foreign policy has grown from the days of presidencialismo. Despite the need for state cooperation when dealing with water issues at the border, the negotiations require a nation-to-nation approach. 25 With this in mind, this paper will examine the effect of water issues on the binational relations between the United States and Mexico by identifying the influences that the different actors (federal governments and local governments) exert from each side of the border. This study argues that treaties aiming to foster the sharing of water have caused conflict between Mexico and the United States. This topic gives insight into a crucial aspect of binational relations that does not receive much media attention. Even though the issue of water does enter the mainstream media on either side of the border at different times, it goes largely unnoticed. Even when 21 Stephen P. Mumme, State Influence in Foreign Policy making: Water related Environmental Disputes along the United States Mexico Border, The Western Political Quarterly 38, no.4 (Dec 1985), Ibid. 23 Ibid. 24 Ibid, 621.

9 6 there is media attention on one side of the border, it does not always translate into media attention at the other side of the border. This tendency hinders joint action. Scholars tend to look at Mexico United States relations on a case-by-case basis, without the need to establish one central framework. 26 The reason for this lack of a framework is that most theories focus on national security issues, but in the Mexico United States case, the international relations deal with internal issues, and involve national politics and policy decisions. 27 Historically, scholars used a realist approach to describe the Mexico United States relationship. 28 In terms of water issues, a realist approach focuses on the actions of federal governments, and countries play a power game, trying to get the most for themselves. This theory applies to the initial years and treaties relating to water, while the United States followed the Harmon Doctrine. Chapter 2 addresses this period. The Harmon Doctrine, so called because it based on an opinion given by Attorney General Judson Harmon in 1895 regarding a controversy between Mexico and the United States because of a diversion of the Rio Grande by the United States, claims that countries have absolute sovereignty over water resources going through its territory. 29 By 1944, however, the United States was no longer relying on the Harmon Doctrine, because it was rejected amongst the states within the United States and it was clearly not a viable doctrine, 30 thus there was more inclusion of local governments and interests in deciding how to manage water issues. Hence, the realist framework no 25 Ibid, Suzanne L Fiederlein and Helen M. Ingram, Transversing Boundaries: A Public Policy Approach to the Analysis of Foreign Policy, The Western Political Quarterly 41, num. 4 (Dec, 1988) Ibid, Jorge I. Domínguez, Widening Scholarly Horizons: Theoretical Approaches for the Study of U.S.- Mexican Relations, Center for International Affairs (Dec. 1995) Stephen C. McCaffrey, The Law of International Watercourses: Non-Navigational Users (Oxford Univ. Press, 2001),

10 7 longer applies. To understand the post 1944 era, one must include elements of different theories. Especially useful in analyzing water issues are some elements of institutionalism and of Robert Putnam s two-level-game theory. 31 In institutionalism, one must analyze how international institutions influence foreign relations. 32 These considerations are pertinent to this paper since the International Boundary Commission (IBC) and the International Boundary and Water Commission (IBWC) both fostered cooperation, and the North American Free Trade Agreement (NAFTA) currently plays a part in creating new conflicts. Chapters 3 and 4 will address this aspect of the relation. The two-levelgames theory says that when deciding international issues, governments must also consider their constituents views. The attention that federal governments in Mexico and the United States must give to the individual states and local governments in enacting foreign policy reflects this theory. This thesis will look at the conflicts resulting in treaties dealing with water. Although the treaties aim for a peaceful resolution of conflict, they have created new conflicts. The thesis will focus on the 1944 Treaty between Mexico and the United States, which is still in place. The first chapter will begin by describing the border and the context surrounding the states that share water at the border. This includes basic information about the extent of the border itself, the dimensions of the rivers in question and information on the demography of the border states. This information is important to provide general background and to understand better the underlying geographical and political factors that play into the resulting controversies. Chapter 2 will look at historical 30 McCaffrey, Ibid, 11 and Ibid, 11.

11 8 treaties and water issues between Mexico and the United States before This chapter will answer the following questions about the main treaties: What were the political, economic and environmental issues that led to and stemmed from the treaties? How did each of the players react to the treaties and the controversies that arose from them? What were the historical problems and patterns seen when dealing with water issues from both sides of the border? Did one country gain more than the other? Did both countries equally abide by the treaty? This chapter will also address problems under past treaties, the joint responses to these problems, and the effect on the relationship between Mexico and the United States. This analysis will help in the examination of why the treaties have led to more conflict and in the formulation of suggestions to improve the situation. The third chapter will concentrate on the Treaty of 1944, which remains in place. It will begin by sketching its main provisions and later amendments. It will also ask the same questions the second chapter asked of earlier treaties, but it will analyze any observable differences in the modus operandi when dealing with issues since The discussion will emphasize any changes that resulted from the creation of Mexican foreign policy since the late 1980s and the beginning of the strengthening of Mexico s democratization. Furthermore, this chapter will address the Minutes that the IBWC has issued and that add obligations beyond the Treaty of 1944 as well as the two treaties that dealt with issues not addressed in the 1944 agreement. The fourth chapter will review other influential bodies that participate in mediating between Mexico and the United States on water issues, as well as other important provisions. This chapter will look at and analyze the role played by the IBWC,

12 9 chapter 11 of NAFTA, the Boundary Environment Cooperation Commission and the North American Development Bank, and the Comisión Nacional del Agua. Furthermore, this chapter will also compare the IBWC to the Mekong Commission and the Nile Basin Initiative to compare practices in international river management and cooperation. Finally, the conclusion will look at the 1944 Treaty and determine its effectiveness. The conclusion will ask: Does the treaty prevent or create conflict? The thesis of this paper is that the treaties have led to more conflicts by highlighting underlying problems such as the unpredictability of water flow, and creating new ones, such as complaints about water quality flowing from one country to the other. After determining the extent to which the treaties have led to conflict, this paper will examine what the two nations must do to ease further conflict and promote cooperation. For example, should the two nations convene a new commission, draft a new treaty or make amendments to the existing treaty? This paper advocates the revision of the 1944 Treaty to include provisions for better water conservation including some national programs with local enforcement on each side of the border. To determine what corrections should be included in the reviewed 1944 Treaty, the paper will consider the following issues: increased water demands and needs of the areas using the water from the shared rivers and history of droughts in the area. Both countries should also review the amount of water allocated to each country from each river, and explore different systems of allocation, for example, using percentages instead of fixed quantities. But because of the specialized geological, sociological and technological knowledge needed in order to make an informed suggestion, the precise reallocation will be deferred to the necessary experts. This paper

13 10 suggests that the border states governors form a convention to aid the federal governments and the International Border and Water Commission in revising the 1944 Treaty. State participation in determining the outcome will ensure that there is cooperation at all pertinent levels.

14 Ch.1 The factors that unite us are enough to construct a solid pedestal of enduring friendship. 1 The mile border between Mexico and the United States has always been a source of negotiations and disagreements. 2 The Rio Grande represents miles of the border and the Colorado River represents miles. The rest is land. 3 There are ten border states. Four are on the American side: California, Arizona, Texas and New Mexico. Six are on the Mexican side: Baja California Norte, Sonora, Chihuahua, Coahuila, Nuevo Leon and Tamaulipas. 4 These ten states together are larger than Western Europe. 5 There are 10.6 million people living at the border, 4.8 million on the Mexican side and 5.8 million on the American side. 6 The United States and Mexico share three rivers: the Tijuana River, the Rio Grande, and the Colorado River. 7 The main issues of contention involve the Colorado and the Rio Grande. Both flow through the United States and into Mexico where they empty into the ocean. The Tijuana River is miles long. It flows from the state of Baja California Norte (Mexico) to the San Diego Bay in California (United States). 8 Of the three rivers, the Tijuana River is the only one that the treaties between the two 1 Declarations by Adolfo López Mateos (President of Mexico) the 25 of September 1964 in Ciudad Juárez, Chihuahua, El Paso, Texas, in relation to the project of El Chamizal and the Rio Grande. 2 Oscar J. Martinez, Troublesome Border (Tucson: University of Arizona Press, 2006; revised edition), 7. 3 Leon C. Metz, Border The U.S.-Mexico Line (El Paso, Texas: Mangan Books, 1989), Official Length. 4 Marisol Anglés Hernandez, Los cursos de agua compartidos entre México y los Estados Unidos de América y la variable medio ambiental. Una aproximación, Anuario mexicano de derecho internacional VI (2006) Paul Ganster and David E. Lorey, The US-Mexican Border into the Twenty-First Century, 2 nd edition, ed.william H. Beazley and Judith Emell (US: Rowman and Littlefield Publisher Inc, 2008) 8. 6 Anglés, Martinez, Anglés, 103.

15 12 countries do not allocate in a structured manner. 9 Agriculture is the main use of the water of the Tijuana, because cities take their water from the Colorado. 10 The Rio Grande originates in the San Juan Mountains in Colorado. 11 It flows for miles and empties in the Gulf of Mexico, 12 near Matamoros, Tamaulipas and Brownsville, Texas. Its total surface is approximately mi 2 and its infiltrations are of approximately mi 2. It is the fifth longest river in North America. 13 The river basin and its tributaries extend through Colorado, New Mexico and Texas in the United States and through Chihuahua, Durango, Coahuila, Nuevo Leon and Tamaulipas in Mexico. The upper basin runs from Colorado to Fort Quitman in Texas and the lower basin runs from Fort Quitman to the Gulf of Mexico. The upper basin is mainly melted water from the Rocky Mountains. The lower basin has less water flow than the upper one until it meets the Rio Conchos in Ojinagua, Chihuahua, where it gains at least 70% more water volume. 14 Mexico irrigates about 1.1 million acres in the basin, while the United States irrigates about 993 acres. 15 The Colorado River empties in the Gulf of California (or it should, even though the flow has not been enough to empty into the Gulf in the past decades). The flow of the river depends largely on snowmelt from the mountains in Colorado, Wyoming and 9 Sandra Bustillos Duran, El agua en la frontera México-Estados Unidos, Araucaria, 1er Semestre, 5 Num. 11, Universidad de Sevilla, Sevilla, España, Ibid. 11 Comisión Internacional de Límites y Aguas (CILA), Cumbre Binacional del Rio Bravo,(Documento Base) 2005, Helga Hafterndorn, Water and International Conflict, Third World Quarterly 21, no.1 (Feb. 2000) D. Maidment, D. Mckinney, C. Patino, Water Availability model and Geodatabse Development for the Rio Grande Basin, (First International Symposium on Transboundary Water Management, Monterrey, Mexico on Nov, 2003) CILA, Maidment, 157.

16 13 Utah. 16 The Colorado River flows through Arizona, California, Nevada, Utah and Colorado in the United States, and Baja California in Mexico. The upper and lower basins make up the Colorado River. The upper basin gives water to Colorado, Wyoming, Utah, New Mexico and Arizona. The lower basin gives water to Arizona, Nevada, California and Mexico. 17 Approximately 85% of the river s annual flow originates in the upper basin (which makes up about 15% of the total basin area). 18 Each basin receives 75 MAF of water every ten years. 19 The lower basin flows through three different ecosystems: the Colorado Plateau, the Mojave Desert and the Sonoran Desert. All three of these ecosystems have arid weather. 20 The lower basin is most pertinent to this study since it is the one shared between the United States and Mexico. This is the driest part of Mexico. 21 The Colorado River used to be one of the most unpredictable and dangerous rivers (because of its constant floods) 22 ; however, after the construction of three dams - the Hoover Dam in 1935, the Morelos Dam in 1950, and the Glen Canyon Dam in it has become one of the world s most controllable rivers. 23 Since the construction of those dams, however, the flow of water and silt have diminished progressively up to the 16 Karen Hyun, Mark Lelloch, Sylvia Tognetti, Ecosystem Changes and Water Policy Choices: Four Scenarios for the Lower Colorado River Basin to 2050, report from Sonoran Institute Island Press (2007) Ibid, Ibid, Ibid, Ibid, José Luis Luegue Tamargo,. Precisiones sobre el Pago del Agua a Estados Unidos, (Press conference at the Auditorio of the Comisión Nacional del Agua, Mexico City, Mexico on Oct ) CONAGUA, Hyun, H. Stuart Burness, James P. Quirk, Water Law, Water Transfers and Economic Efficiency: The Colorado River, Journal of Law and Economics 23, no.1 (April, 1980), 112

17 14 point of practically disappearing. 24 In most years, the Colorado River has less water flow than the total allotted to Mexico and the Western states. 25 The areas on both sides of the border that rely on water from the Colorado and The Rio Grande are semi-arid areas 26. They are prone to droughts, which makes the allocation of water between the countries problematic. Furthermore, water in these areas is limited because both countries have over-exploited supplies and there has been wasteful use, as well as excessive demand. 27 Over the last few decades, a growing population, extensive industrialization, inadequate infrastructure, and prolonged periods of drought on both basins have worsened water shortages. 28 On the Mexican side, the federal government has complete control of water supplies. Even despite the recent changes in Mexico s democracy, central power still prevails as the authority on water issues, which are seen in terms of national, rather than local, interest. 29 On the American side, the states have regulatory authority and are in charge of managing the water supplies; 30 in fact, water rights have traditionally been a part of states rights. 31 According to water relations expert Stephen Mumme, The political dynamics of solutions to transboundary water problems in the United States are forged in a classic distributive policy arena 32. In other words, government distributes 24 Hyun, Kathryn Brown, Water Scarcity: Forecasting the Future with Spotty Data, Science, New Series 297, no.5583 (Aug. 9, 2002), Hafterndom, Anglés, Stephen R. Viña, The United States-Mexico Dispute over the Waters of the Lower Rio Grande River, CRS report for Congress (March 21, 2005) Stephen P. Mumme, Revising the 1944 Water Treaty: Reflections on the Rio Grande Drought and other matters, Journal of the Southwest 45 i.4 (winter, 2003) CILA, Mumme, Revising the 1944 Water Treaty, Stephen P. Mumme, State Influence in Foreign Policy making: Water related Environmental Disputes along the United States Mexico Border, The Western Political Quarterly 38, no.4 (Dec 1985), 622

18 15 costs and benefits among large numbers of people. This deal exclusively with the local politics of each state and border city, but by definition, countries must deal with transboundary water issues in an international manner. 33 The overlap of federal politics and policy initiatives with local ones in the border area leads to problems and a greater need for cooperation. California and Texas each can effectively veto U.S. federal action if they are unhappy or feel harmed by negotiations with Mexico. 34 Local politics and individual states play an important role in the development of joint action regarding water issues. Even in Mexico, local governmental involvement in water issues has increased, and there are more demands by states for the federal government to consider their views before entering into agreements with the neighbor to the north. Historically, however, federalism in the United States has proven problematic because of the lack of a unified federal policy. In the United States today water policy follows a pragmatic federalist approach. Even though this approach emphasizes the need for collaboration among states, because of its history, it developed and remains highly fragmented, with multiple agencies managing narrow components of the different water issues that arise. 35 For example, there are different laws dealing with environmental, and conservation issues: there is no one unified policy. From the founding of the United States in 1776 to the beginning of Theodore Roosevelt s presidency in 1901, states were the main actors dealing with water issues. Beginning in 1902, the federal government began to play a bigger role, especially in management of water resources. This era was followed by a period of shared responsibility from Beginning with President 33 Ibid. 34 Mumme, Revising the 1944 Water Treaty, 650.

19 16 Reagan, the balance of power then shifted towards a greater control in the hands of states, including more responsibilities for the cost of managing water resources. 36 Greater collaboration among all levels of government, as well as a larger role and influence in matters dealing with conservation and the environment by environmentalist groups characterized the Clinton years. 37 Each of the actors plays a role in the outcome of binational water decisions. The border is the most rapidly developing area both in countries. 38 The northern part of Mexico, its most arid area, is also the most industrialized, thus increasing the need for water. 39 Development has meant increased population, which in turn has meant increased water consumptions. Population on the Mexican border grows 2.7% a year. By 2025, estimates predict that the population will reach 13.8 million people, up from 7 million in Furthermore, in Mexico, better infrastructure has also led to an increase in per capita consumption. 41 The population in the lower basin of the Colorado River is expected to grow by 60% between the year 2000 and 2030, an increase of more than 11 million people. Populations in Arizona and Nevada are expected to more than double in that time span. 42 The increase in population on both sides of the border will add to the pressure exerted on the rivers feeding the area. Most of the growth in population 35 Andrea K. Gerlak, Federalism and U.S. Water Policy: Lessons for the Twenty-First Century, Publius: The Journal of Federalism 36, no.2 (Dec 14, 2005) Ibid, Ibid, Martinez, Maidmen, CILA, Maria Rosa Garcia-Acevedo and Helen Ingram, Conflict in the Borderlands, NACLA Report on the Americas 38, issue 1 (Jul-Aug 2003) Hyun, 40.

20 17 and in development has occurred in twin-cities, 43 that straddle the border, such as El Paso in Texas, and Ciudad Juarez in Chihuahua. The population growth rate in twin-cities is double that of the national rates in both countries. Along the Mexico-United States border, a developing country abuts a developed country. Conflict arises from this gap in development. 45 The needs of developing countries are different from those of developed countries. In this case, since the rivers flow from the developed to the developing nation the developing nation feels robbed of water that would permit it to develop further. This is most visible at the local level, where citizens and local governments find the designated allocation of water between the countries unfair. If water demand on the Mexican side, follows the current trend, it will increase 7.4% between 2000 and 2025, while the availability per capita will decrease by 50%. 46 Likewise, the developed country has needs that it feels have higher priority than those of the developing nation. Climate change aggravates the situation. As measured by the Hoover Dam, the amount of water flowing through the basin of the Colorado River has decreased in the last decades. Since melted water makes up most of the flow, warmer winters result in less melted ice to increase the flow of the Colorado River. This change results in less water available for the semi-arid areas in both nations. 47 This chapter has reviewed the characteristics that make the border not only a complicated region, but also one prone to conflict, especially over issues relating to Christopher Brown, Transboundary Water Resource Issues on the U.S.-Mexico Border: Challenges and Opportunities in the 21 st Century, Hors Série Vertigo, Ibid. 45 Hafterndom, CILA, 30.

21 18 water. The arid weather of the border states and the large number of people that rely on the same two rivers for water stretch the water supply thin and bring about international conflict. Those who are downstream inevitably feel that those above them have abused the water supply, while those who are upstream believe they have the right the water. This difference is sharper in an arid climate that is prone to droughts and yet is growing fast. These issues alone would cause conflict between two states in the same country, but along the United States-Mexico border this is exacerbated by the need to deal not only with multiple local authorities, but also with two different federal governments. These circumstances create a need to consider the international ramifications of decisions. Also unique to this situation is the differences in development between one country and the other. This difference raises the question of what is fair between a developed nation that has a large need for water supplies because it is developed, and a developing nation that has a large need for water because it is striving to develop. All these issues have played a part in affecting the outcomes of treaties, as well as creating new controversies that state and federal governments must address. The following chapters will analyze the most important treaties and controversies dealing with water at the border. 47 Luegue, 14.

22 Chapter 2: Management of water resources certainly is one of the most frustrating kinds of management conceivable. 1 Transnational problems arising from shared bodies of water involve multiple players and levels of government that are making water policy. Local governments influence foreign relations and the outcome of negotiations in binational treaties through their local water policies, since it is ultimately those state governments who carry out the terms of treaties. 2 This chapter will analyze treaties between Mexico and the United States. It will also look at how these treaties have shaped relations regarding water issues between the countries. This chapter will focus on the main treaties and issues that preceded the 1944 Treaty. This chapter will also analyze how multiple levels of government have cooperated or blocked each other. Problems not only have to do with the use of the water, but with the location of the border. In 1848, the two countries signed the Treaty of Guadalupe Hidalgo, which ended the Mexican-American war and established the new boundary between the two countries. Both the Colorado River and the Rio Grande became part of the border, dividing the two countries. 3 At first, Mexico and the United States dealt with water issues regarding border problems separately from those involving water consumption. Over 1 Haney Doerksen, Water, Politics, and Ideology: An overview of Water Resources Management, Public Administration Review 37, no. 5 (Sept-Oct, 1977) Stephen P. Mumme, State Influence in Foreign Policy making: Water related Environmental Disputes along the United States Mexico Border, The Western Political Quarterly 38, no.4 (Dec 1985), Peace, Friendship, and limits settlement, 3 February 1848, Mexico-Treaty of Peace, Treaty between the United States of America and the Mexican Republic (Treaty of Guadalupe Hidalgo), 2, 3, 7.

23 20 time, the two became intertwined. 4 The first issues had to do with the physical border. Then as now, the Rio Grande changed its course frequently. In 1864, a violent flood attracted attention to El Chamizal, 5 an area of 600 acres that had shifted from the Mexican side to the American side. 6 The two countries tried to resolve the issue; however, because of the importance of the location of El Chamizal -- between El Paso in the United States and Ciudad Juarez in Mexico-- it was hard to reach an agreement. Disputes over private property in the area often escalated and involved both governments. 7 In 1882, there was an attempt to solve the issue through a convention whose purpose was to revise the boundary set in the Treaty of Guadalupe Hidalgo. The resulting treaty, however, did not resolve the issue, for it only called for putting up new monuments delineating the border. 8 In 1884, the countries signed a second treaty, which provided for a convention to lay down the rules for determining solutions to questions such as the one raised by El Chamizal. This Treaty said that the valid border was the one established in the Treaty of Guadalupe Hidalgo, regardless of the natural changes in the river and those that may result from man-made changes to the flow of the river and its banks. 9 As with the Treaty of 1882, this agreement was also unable to settle the dispute for it also did not contain anything that 4 James A. Sandos, International Water Control in the Lower Rio Grande Basin, Agricultural History 54, no.4 (Oct 1980), Jessup, Mumme, State Influence in Foreign Policy making, Jessup, Providing for an International Boundary Survey to Relocate the Existing Frontier Line Between the Two Countries West of the Rio Grande", Treaty between the United States of America and the United States of Mexico 29 July Touching the International Boundary Line where it follows the Bed of the Rio Colorado", Treaty between the United States of America and the United States of Mexico, 12 November 1884.

24 21 directly addressed the issue of El Chamizal. 10 Treaty of Water Boundary At a convention on May 1, 1889, Mexico and the United States created the International Boundary Commission (IBC). It was important that both nations took part in this organization. 11 This Commission was in charge of settling the differences arising at the border regarding the rivers; it had exclusive jurisdiction over disputes involving the Rio Grande and the Colorado. 12 It began its work two years later. 13 The IBC had one commissioner from each country and the solutions they agreed upon were binding if neither country spoke against it after one month. 14 In 1895, the IBC was in charge of dealing with the Chamizal controversy. But because it could not reach a resolution, it recommended a third, neutral commissioner to meet with the American and Mexican Commissioners. 15 Mexico opposed naming a private individual as the third commissioner. Rather, it preferred the third commissioner be another country because Mexico believed this would give more validity to the decision of the third commissioner. The United States, for the same reason, opposed the third commissioner being a country. The United States preferred being able to negotiate after a decision had been reached and this was more likely if the decision came from a private 10 Jessup, G. Frederick Reinhardt, Rectification of the Rio Grande in the El Paso Juarez Valley, The American Journal of International Law 31, no.1 (Jan1937), To facilitate the carrying out of the principles contained in the Treaty of November 12, 1884 and to avoid the difficulties occasioned by reason of the changes which take place in the beds of the Rio Grande and Colorado Rivers, Convention between the United States of America and the United States of Mexico, March, 1889, 2,3. 13 C. Richard Bath, Resolving Water Disputes, Proceedings of the Academy of Political Science 34, no.1 Mexico-United States Relations (1981): Jessup, Bath, 181.

25 22 individual. In 1907, Mexico proposed that the third commissioner be a representative from Canada, and eventually the United States agreed. 16 On June 15, 1911, the three commissioners decided that Mexico should receive most of the territory. The United States, however, refused to abide by this ruling for about 50 years, mainly because of local opposition in El Paso. 17 Both countries kept renovating the IBC until November 21, 1900, when they decided on extending it indefinitely. 18 Since its creation, the IBC (now the IBWC) has fostered solutions to many disputes. 19 In 1905, the two countries signed the Banco Treaty, which stipulated that because of the Rio Grande s constant shifts, territory that had moved from United States to Mexico and vice versa (known as bancos ) would be exchanged for other land in order to maintain the river as the boundary. This Treaty came about because of an observation by the IBC. The commission had noticed that this forming of bancos, where the river abandoned its own channel and separated off portions of land, was a typical change. 20 This exchanges of land had as limitation that the exchanged area should not be greater than 250 hectares, and have no more than 200 inhabitants. The Treaty also included a provision protecting private property rights in those exchanged territories and people could choose which nationality they wanted. 21 This Treaty was only a provisional solution, and in 1933, the two countries decided on a more permanent solution with the 16 Jessup, Bath, Marisol Anglés Hernandez, Los cursos de agua compartidos entre México y los Estados Unidos de América y la variable medio ambiental. Una aproximación, Anuario mexicano de derecho internacional VI (2006), Salvador Campos Icardo, Progress in Bilateral Relations, Proceedings of the Academy of Political Science 34, no. 1, Mexico-United States Relations (1981), Reinhardt, 46.

26 23 Treaty of In 1889, problems arose regarding the distribution of water of the Rio Grande basin. The United States had diverted water flowing to the Rio Grande on its side of the border, thus reducing the flow of water into Ciudad Juarez in Mexico. This reduction in flow hurt Ciudad Juarez since it was going through a drought and needed the water for agriculture. 22 In fact, the entire lower basin of the Rio Grande had less water because the consumption had increased in the upper basin. 23 In 1895, Mexico accused the United States of exploiting the Rio Bravo and thus reducing its water flow. 24 The United States replied to these claims by citing the Harmon Doctrine. This doctrine asserts absolute sovereignty of a country with respect to the water that flows through its territory. 25 It states that a country may use as much as it pleases of natural resources within its territory and change them as they please, even if those same resources also cross into other countries. 26 Since 1889, United States had been using the Harmon Doctrine to endorse its actions with respect to the Colorado River and the Rio Grande. In fact, the diversion of the upper Rio Grande in Colorado and New Mexico had caused the main stream of the Rio Grande to run dry at El Paso, adversely affecting the Juarez Valley and the land below it, 27 and slowly turning that territory back into a desert Ibid. 22 D. Maidment, D. Mckinney, C. Patino, Water Availability model and Geodatabse Development for the Rio Grande Basin, (First International Symposium on Transboundary Water Management, Monterrey, Mexico on Nov, 2003) Sandos, Helga Hafterndorn, Water and International Conflict, Third World Quarterly 21, no.1 (Feb. 2000) Maidment, Anglés, Hafterndom, Edwin J. Foscue, Irrigation in the Lower Rio Grande Valley of Texas, Geographical Review 23, no3. (Jul, 1933) Edwin J. Foscue, Review: The Upper Rio Grande Basin, Geographical Review 29, no.3 (July 1939) 521.

27 24 Since the problems continued, the two countries held a convention on May 21, 1906: the convention for the Equitable Distribution of the Waters of the Rio Grande. 29 Out of this commission came the first water treaty to deal with the sharing of the rivers. Treaty of Equitable Distribution of the Waters of the Rio Grande The 1906 Treaty was an early attempt to solve international issues that arose because of the river s character as border. 30 This Treaty established a format for boundary definition to prevent more controversies such as El Chamizal. 31 Under the Treaty, the United States agreed to give to Mexico, free of charge, 60,000 acre-feet of water. Prior to this Treaty, the United States had been appropriating all of the water of the Rio Grande above El Paso. 32 The physical transfer of water took place at the Acequia Madre, or the Old Mexican Canal. 33 The water that the United States transferred to Mexico came out of the Elephant Butte Reservoir, 125 miles above the border, and the upper basin of the Rio Grande was the source of water. 34 The Treaty also established a monthly program for the distributions of water and stipulates that Mexico would receive less water than the amount allocated in the Treaty if the United States were to suffer from a severe drought or a serious accident in its irrigation systems. The quantity of water going to Mexico would decrease by the amount American farmers received to alleviate the problem. 35 The United States, however, was still under the Harmon Doctrine. The 29 Anglés, Stephen R. Viña, The United States-Mexico Dispute over the Waters of the Lower Rio Grande River, CRS report for Congress (March 21, 2005) Mumme, State Influence in Foreign Policy making, Foscuee, Review, CILA, Martin G. Glaeser, The Mexican Water Treaty: Part I, The Journal of Land & Public Utility Economics 22, No. 1. (Feb., 1946), CILA, 7.

28 25 United States viewed it as a concession of water to Mexico, and the Treaty itself stated that the United States was not recognizing any right by Mexico to the water by this concession. The Mexican authorities criticized the Treaty because it did not recognize a Mexican right to the water. 36 In exchange for the 60,000 acre-feet of water Mexico had to renounce all claims to the water of the Rio Grande between El Paso and Fort Quitman; the water below El Paso was still under joint jurisdiction. 37 Even though this quantity was not the amount Mexico thought it deserved, it was the best it could negotiate at the time. A problem that came with this Treaty was that there was no provision for future growth; in fact, on the Mexican, as population increased the water they received diminished. 38 Another problem was that neither country could adequately measure the water at that time because they did not have the technology. 39 It was not until 1938 that they could accurately gauge the water transfer. Fourteen out of the following 29 years showed that the deliveries of water had fallen short, so it is very likely that they also had fallen short for the years preceding From 1910 to 1920, Mexico did not deal with water border issues because of its Revolution. During this time, there was no recognized representative of Mexico in the IBC, which led to abuses by the United States. Texas took 70% of the water it used from water that belonged to Mexico. 41 President Woodrow Wilson did not recognize any government in Mexico as legitimate thus, without valid representation Mexico had to rely 36 Anglés, Foscue, Irrigation, Sandos, Ibid. 40 Ibid.

29 26 on the American section of the IBC to protect its interests. 42 Even though the IBC did try to protect Mexico s interests and have an adequate distribution of water, local power was stronger than the IBC and thus there were abuses. 43 The IBC tried to convince the federal government to intervene on behalf of Mexico, since the IBC thought that Mexico deserved 50% of the water of the Rio Grande and had research that showed that Texas was taking most of Mexico s rightful share. 44 The Federal Government could not enforce a more equitable distribution because of local power and the idea that the water belonged to the United States and thus there was not only no obligation to give Mexico a share of the water, but it would also economically hurt the American farmers. 45 Both countries unsuccessfully tried to control and limit the use of water. Mexico tried a more systematic control. Since according to Mexico s Constitution the water belongs to the federal government and it has the power to grant concessions, it had a system in which people who wanted to use the water had to petition the government. After determining whether the request was not excessive, the government would grant a contract that allowed the use of the water. 46 This system failed in practice since it was hard to control who used the water from rivers and thus people generally used the water without filing a petition, or would file after the fact. There was also no way of enforcing the contracts, especially if they had allowed for less than the requested amount. 47 On the American side, there was no national law controlling the water and no fully developed 41 Ibid, Ibid, Ibid, Ibid, Ibid, Ibid, 493, Ibid, 494.

30 27 international law either. 48 Traditionally, water rights in Texas had belonged to those who lived by the riverside. The owners of property by the river essentially also owned the water. 49 As population increased people that did not live next to the river also wanted access to the water. By 1889, the United States adopted the doctrine of prior appropriation, which meant that people could share the unclaimed parts of the river. Under this doctrine, Texans had to register with the state government to get rights to the water. In practice however, it fared no better than the Mexican attempt, and most water usage went undetected. 50 Treaty of Rectification of the Rio Grande In 1933, the United States and Mexico made a treaty to work on the rectification of the Rio Grande. 51 Rectification constituted building a straighter, artificial channel for the river to flow through in an attempt to control floods and create more stability to the border. 52 The floods of the Rio Grande tended to cause destruction. Since the Rio Grande carries a lot of silt, its riverbed kept growing, which increased the chances of flooding. 53 By the 1920 s many engineering studies were focusing on how to control the river. 54 The result was a report submitted by the Consulting Engineers and the two Commissioners for consideration on July 16, This report developed into the Minute 129 of the IBC, which included a comprehensive report on rectification of the river with engineering 48 Ibid, Ibid, Ibid, 496, Reinhardt, Ibid. 53 Ibid, 48.