Proposed Mexican Strategies in the Case of U.S. Failure to Comply with the 1944 Water Treaty Due to Climate Change.

From the SelectedWorks of Arash Ebrahimi March 16, 2010 Proposed Mexican Strategies in the Case of U.S. Failure to Comply with the 1944 Water Treaty Due to Climate Change. Arash Ebrahimi, University of San Diego Available at: https://works.bepress.com/arash_ebrahimi/1/

Proposed Mexican Strategies in the Case of U.S. Failure to Comply with the 1944 Water Treaty Due to Climate Change. Arash Ebrahimi * Abstract Very soon freshwater will shift into international focus as the most important scarce natural resource needed by humans to ensure their survival. At the center of this focus are freshwater sources shared between neighboring countries. The Colorado River has served the needs of U.S. and Mexican citizens for centuries and its use is dictated by the terms of a treaty signed by both nations in 1944. Even the most unrealistically conservative estimates show the Colorado River will be deficient in meeting freshwater demand in less than 50 years. Mexico s anticipation of U.S. failure to comply with the terms of the treaty is essential. Few realistically effective options are available to Mexico in this scenario, but Mexico should enlist the support of the international community to hold the United States accountable to the treaty it signed: specifically Canada, a fellow neighbor to the U.S. who shares freshwater sources. It is imperative that Mexico and the United States act swiftly to resolve water rights issues before decreased freshwater becomes an international crisis. * The author received his Bachelor degree in Psychology from The University of Texas at Austin. He is pursuing his Juris Doctor at the University of San Diego School of Law. The author wishes to thank and acknowledge Professor Vargas from the University of San Diego School of Law for his support and guidance. 1

Table of Contents Section I History of Treaties and Water Rights Between the U.S. and Mexico...3 Colorado River Compact...4 Treaty of Guadalupe Hidalgo...5 1944 Mexican-American Water Treaty...7 Section II Climate Change...9 Share of Responsibilities for Climate Change...13 Population...14 Section III - Possible Mexican Strategies Responding to U.S. Failure to Comply with the 1944 Treaty..16 Vienna Convention on Consular Rights...16 Wellton Mohawk...19 Conclusion...27 2

Introduction By nature of their shared geography, the United States (U.S.) and Mexico have struggled to demarcate and share natural resources that border and run through each territory. These endeavors have often resulted in agreement to bilateral and international treaties, the fairness of which have been questioned. Competition for limited natural resources has informed the majority of the text of these agreements. There is no resource more basic and central to human survival than water. The Colorado River currently supplies 15 million Acre ft./year to seven U.S. states and 1.5 million Acre ft./year to Mexico. 2 The continued warming of Earth due to human activity is inhibiting the river s output to both parties. Water, perhaps the most important scarce resource in the early 21st century, is slowly coming into focus as a source of tension between the countries and territories that share it. Current estimates predict a severe shortage of water in North America in the relatively near future. 3 In fact, one study says there is a 50% chance that all reservoirs along the Colorado River will dry up by 2050. 4 As this resource becomes scarcer, the text of the treaties governing the use of it will become more important. Countries partied in these agreements, especially those who stand to lose the most, should pay attention to the legal recourse available to them in the case of a neighboring country s failure to comply with these agreements. Section I History of Treaties and Water Rights Between the U.S. and Mexico Understanding the bi-national agreements that currently govern the Colorado River and its scheduled deliveries to Mexico and the U.S. requires an understanding of the history of treaty 2 See infra note 21 3 See infra note 29 and 34. 4 See generally Balaji Rajagopalan, Water Supply Risk on the Colorado River: Can Management Mitigate?, Water Resour. Res., 45 American Geophysical Union University of Colorado. 3

negotiations and land acquisition between these two countries. In 1831, the Colorado River and the land that it flowed through was all a part of Mexican territory. Less than 15 years later, a series of conflicts and treaties dramatically changed the ownership of this plentiful water source and redrew the border line. While the treaty that defines the relationship between Mexico and the U.S. with regards to the Colorado River was not signed until 1944, prior U.S.-Mexico treaties inform much of this relationship and the subsequent terms of the treaty agreed to by both parties. Colorado River Compact The first U.S. legal agreement to govern the water of the Colorado River was signed in 1922 among seven U.S. states. The Colorado River compact divided the river basin into the Upper Division (including Colorado, New Mexico, Utah and Wyoming) and the Lower Division (Nevada, Arizona and California). 5 While not without controversy 6, this agreement governed relatively unchanged until 2007. 7 Over the course of seventy five-years, Arizona has litigated its concerns over the fairness of this compact through the United States Supreme Court 8 and even waited until 1944 to sign the agreement. 9 Arizona s concerns have ranged from apportionment of water to the constitutionality of the agreement itself. Arizona s struggle with the compact is a result of its geographic location to the river. The state is almost last in line for scheduled 5 Colorado River Compact, section II(b)-(c), August 19, 1922. 6 Arizona v. California, 292 U.S. 341. This is the first in a long line of U.S. Supreme Court cases in which Arizona disputes the terms of the 1922 agreement. 7 Western States to Share Colorado River Water (National Public Radio broadcast Dec. 14, 2007). 8 298 U.S. 558 (1936) Arizona wants set amount of water from Colorado River to be set by Supreme Court, and to limit the amount California is allowed. 373 U.S. 546 (1963) Question: How much water are each of the states of the Colorado River Compact entitled? 376 U.S. 340 (1964) Decree setting amounts of water for decision in 373 US 546. 383 U.S. 268 (1968) Decree adjustment 439 U.S. 419 (1979) Decree adjusting amounts of water for all parties to the case. 460 U.S. 605 (1983) Decree regarding unadjudicated Indian Tribes rights to certain Colorado River water. 466 U.S. 144 (1984) Decree Adjustment 531 U.S. 1 (2000) Adjustment of amount of water to be distributed to some of the parties 547 U.S. 150 (2006) Additional adjustments 9 Crystal Thompson, Central Arizona Project History, Jan. 14, 2007, http://www.cap-az.com/about-cap/history/ 4

deliveries on the U.S. side of the border. While Mexico was not a party to this agreement, Arizona s unfair treatment under the original treaty and its incentive to find a political solution serves as a model that Mexico can follow to secure its water rights in the future. Treaty of Guadalupe Hidalgo The U.S. and Mexico share a complicated and oftentimes violent history regarding shared land and resources. The Treaty of Guadalupe Hidalgo was one of the first major bi-national treaties between the two countries. It ended the Mexican-American war in 1848 10 and set the tone for future dealings between the countries. This resulted in the Mexican loss of the Colorado River and every state that would eventually become a party to the Colorado River Compact. 11 The fairness of this treaty and U.S. policies in Mexico at the time were rejected by the Mexican people. While the Americans viewed the conflict as a war, Mexicans still refer to the incident as el Invasión Estadounidense de México, which translates to the American Invasion of Mexico. Under the threat of force, Mexico ceded over half of its pre-war territory under the terms of the treaty. 12 10 Treaty of Guadalupe Hidalgo, U.S.-Mex., art. I, Feb. 2, 1848 available at http://www.mexica.net/guadhida.php 11 Part of Colorado was already in possession by the United States 12 Treaty of Guadalupe Hidalgo, U.S.-Mex., art. V, Feb. 2, 1848 available at http://www.mexica.net/guadhida.php 5

The loss of Texas was particularly bitter and gives context to Mexico s perceived inequality of the treaty. The terms of the 1819 Adams-Onis Treaty resolved boundary disputes between Spain and the U.S., essentially through the U.S. cession of Texas to Spain 13 in return for Florida. 14 Although not an original party to this agreement, Mexico gained its independence from Spain less than three years after the signing of Adams-Onis and ratified it in 1831. At this point Mexico owned most of Texas, the Colorado River, and all of the land it touched. The Texas Revolution in 1835 and subsequent annexation by the United States in 1836 were the sparks that ignited the Mexican-American war. In less than 15 years, between Mexico s ratification of the Adams-Onis treaty and the end of the Mexican-American war, Mexico lost half of its territory including all of the Colorado River, and came to terms with the fact that it would not be able to compete with the U.S. military. The blatant disregard of the Aams-Onis treaty and the debilitating conditions of the Treaty of Guadalupe Hidalgo suggested that the United States 13 Adams-Onis Treaty, U.S.-Spain, art. III, Feb. 22 1819 available at http://www.tamu.edu/ccbn/dewitt/adamonis.htm 14 Id 6

was not interested in keeping fair diplomatic ties through bi-national treaties and agreements. It raises the question of whether the United States will continue to keep the promises they have made to Mexico. 1944 Mexican-American Water Treaty The International Boundary and Water Commission (IBWC) was formed in 1889 as a binational agency to administer the many boundary and water-rights treaties and agreements between the two nations. 15 The IBWC s formation is due in large part to the Treaty of Guadalupe Hidalgo which by its terms created an early form of the Commission by establishing temporary joint commissions to survey, map, and demarcate with ground landmarks the new U.S. Mexico boundary. 16 Immediately, the IBWC began working with the Colorado River by settling boundary disputes. After the end of the Mexican American war, border populations on both sides began expanding 17 and changing. This created new challenges for the Commission. The first water distribution treaty between the two countries was formed by utilizing resources provided by the Commission. The Convention of March 1, 1906 allocated an 89-mile international boundary reach of the Rio Grande from El Paso to Fort Quitman. 18 Mexico was allotted 60,000 Acre ft./year 19 to be given in accordance with a monthly schedule. The U.S. constructed the Elephant Butte Dam in its territory to facilitate these deliveries 20. The provisions in this Convention would eventually inform future water use relations between the two countries. In specific, the convention included a provision that in the case of extraordinary drought or serious accident to the irrigation system in the U.S., the amount of water delivered to the 15 http://www.ibwc.state.gov/about_us/history.html C.W. Ruth, History of the International Water and Boundary Commission, http://www.cap-az.com/aboutcap/history/ 16 Id 17 See graph on page 15 18 Convention of March 1, 1906, U.S.-Mex., art. I available at http://www.ibwc.state.gov/files/1906conv.pdf 19 Id 20 Convention of March 1, 1906, U.S.-Mex. art. III available at http://www.ibwc.state.gov/files/1906conv.pdf 7

Mexican Canal shall be diminished in the same proportion as the water delivered to lands under the irrigation system in the U.S. downstream of Elephant Butte Dam. 21 This language is used almost unchanged in a treaty that is in force today. At the time Arizona became a signatory to the Colorado River Compact, the IBWC developed the Treaty for the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande of 3 February 1944. 22 The text of this treaty, which governs all use of the Colorado River between the two countries, is the starting point for any water rights dispute over the river. It outlines the obligations and duties of each country with regards to the water source. 23 Most importantly, the original language of section 10 of the treaty (reproduced below) is the only language that outlines what will happen to scheduled deliveries to Mexico in the case of severe climate change. ARTICLE 10 Of the waters of the Colorado River, from any and all sources, there are allotted to Mexico: (a) (b) A guaranteed annual quantity of 1,500,000 acre-feet (1,850,234,000 cubic meters) to be delivered in accordance with the provisions of Article 15 of this Treaty. Any other quantities arriving at the Mexican points of diversion. In the event of extraordinary drought or serious accident to the irrigation system in the United States, thereby making it difficult for the United States to deliver the guaranteed quantity of 1,500,000 acre-feet (1,850,234,000 cubic meters) a year, the water allotted to Mexico under subparagraph (a) of this Article will be reduced in the same proportion as consumptive uses in the United States are reduced. 24 21 Convention of March 1, 1906, U.S.-Mex. art. III (emphasis added) available at http://www.ibwc.state.gov/files/1906conv.pdf 22 Utilization of Wwaters of the Colorado and Tijuana Rivers and of the Rio Grande, U.S.-Mex., Feb. 3, 1944 available at http://www.ibwc.state.gov/files/1944treaty.pdf 23 Id at Article IV and V 24 Id (emphasis added) 8

Because the 1944 treaty is the starting point for any dispute regarding water rights between the U.S. and Mexico, the language used in article 10(b) is Mexico s starting point when formulating a strategy to combat U.S. failure to comply with the provisions of the treaty due to climate change. Unfortunately, the text of the treaty itself is not very helpful and, in the likely event of U.S. non-compliance, Mexico and the U.S. can resort only to traditional concepts in international law. The competing Latin axioms rebus sic stantibus (things thus standing) and pacta sunt sevanda (promises must be kept) are the likely arguments on each side. Regardless of which phrase is most appealing, it is clear that human impact on the environment will soon diminish the once-plentiful freshwater source of the Colorado River. Section II Climate Change The guarding and allocation of natural resources on behalf of countries who share them is further complicated by climate change. While still a source of controversy 25, the fact that the climate has warmed and is continuing to warm in recent decades because of anthropogenic (human) green house gas concentrations has been endorsed by every national science academy that has issued a statement on climate change 26 and the science academies of all major industrialized countries. 27 The general consensus is that global warming is unequivocal, that it is at least partly caused by human activity, and that even a complete reduction of green house gas emissions will not stop the continued warming of Earth for centuries. 28 Regardless of cause, climate change has a series of detrimental effects on natural resources that humans depend on for their survival, resources like the Colorado River. 25 Maxwell T. Boykoff & Jules M. Boykoff, Balance as Bias: Global Warming and the US Prestige Press, 2004 Global Envtl. Change, Part A 14: 125 136. 26 See generally Climate Change 2001: Working Group I: The Scientific Basis, IPCC, January 2001. 27 Royal Society (2005). Joint science academies' statement: Global response to climate change. 9

Several scientific academies and groups have studied the effect of climate change on the Colorado River. Barnett and Pierce, climate scientists at the Scripps Institute of Oceanography, studied the effects of human-created climate change on the Colorado River. 29 The research team drew upon data from past scientific research that analyzed future decreased runoff as a result of human-induced climate change. 30 These studies, conducted between 1991 and 2007, indicate a range of 6%-45% decreased runoff. 31 The main focus of the Barnett and Pierce study was to analyze how this reduced runoff will affect future deliveries of the Colorado River. Their results bring no good news to Mexicans and Americans dependant on the river. They observed that [t]he bottom line is that these changes in the climate will likely reduce the flow of the Colorado River by 10 30%. Three separate runoff models, assuming zero, ten, and twenty percent runoff were used. The results (below) indicate if climate change reduces runoff by ten percent then scheduled deliveries will be missed 58% of the time by the year 2050. If runoff reduces twenty percent, then they will be missed 88% of the time. What is perhaps most disturbing about this study is that in a scenario assuming no decreased runoff due to climate change, scheduled deliveries will begin to fail forty percent of 29 Tim P. Barnett & David W. Pierce, Sustainable Water Deliveries from the Colorado River in a Changing Climate, 208 Scripps Institution of Oceanograph, 1. 30 Id at 2 31 Id 10

the time by 2060. Climate change is rapidly reducing a water source that is already in peril. Other groups have also studied the effects of climate change on the Colorado River. The United States Geological Survey (USGS), through the Glen Canyon Environmental Studies Program, collected water temperature data for the Colorado River from 1988 2005. 32 The data collected by USGS reinforce the findings of the Barnett and Pierce study. The study also shows that river water temperature rises the farther away it is from its source. 33 The study explains that these warmer river temperatures are coincident with lower reservoir elevations in Lake Powell. 34 As global the global temperature rises, so will the temperature of the Colorado River. Those affected the greatest will be Mexicans who are farthest downstream 32 Id at 2 33 Nicholas Voichick and Scott A. Wright, Water-Temperature Data for the Colorado River and Tributaries between Glen Canyon Dam and Spencer Canyon, Northern Arizona, 1988 2005, 2007 United States Geological Survey. 34 Id at 1 11

from the river source. These changes have affected the aquatic and terrestrial ecosystems, freshwater for consumption, as well as cultural and recreational resources on the River. The obvious concern over reduced runoff and deliveries of the Colorado River is that future generations will have less access to a resource that is pivotal to human survival. The problem of decreased access to water, however, affects more than human nutrition. As the USGS study points out, the Colorado River is a source of culture, food, recreation and freshwater. The Colorado River is also a source of energy and income. The River system includes several power plants which generate electricity as part of the Boulder Canyon Project. 35 Public entities are sold this power through the U.S. Department of Energy. 36 These hydro plants have a total generating capacity of 4,177,766 kilowatts (kw), and in 1996 produced 12,197,000,000 kilowatt hours (kwh) of energy. Revenues from power sales were $176,985,000 for 1996. 37 Future loss of revenue as a result of diminished runoff will have to be spread between both of the countries that depend on the River. The Colorado River is a water source that is already stressed. Due to the effects of global warming the River will continue to be stressed at a higher rate. A USGS study (graph below) shows that the Colorado River supply, minus consumptive use and losses, has resulted in roughly twenty-five million less Acre ft./year. 35 Boulder Canyon Project Act, H. R. 5773, 4(b) 36 Crystal Thompson, Glen Canyon statistics, available at http://www.crwua.org/coloradoriver/riveruses/index.cfm?action=power 37 Id 12

Share of Responsibilities for Climate Change If climate change suffices as extraordinary drought in light of the provision of the 1944 Water Treaty then part of the Mexican strategy to ensure continued dependence on the water source should include an analysis of the percentage share of responsibility for climate change for both countries. While no litmus yet exists to definitively measure a country s affect on globate climate change, some raw data suggest an estimated percentage share of responsibility. The Carbon Dioxide Information Analysis Center revealed in 2006 study that 20.2% of total global CO2 emissions came from the United States, while Mexico produced 1.6%. 38 Of the 210 countries studied, the United States ranked second (just below China) and Mexico ranked 12th. The top three carbon emitting countries (China, the U.S., and the European Union) accounted for over half of the global carbon emissions in 2006. 39 38 CDIAC, Global, Regional, and National Fossil Fuel CO2 Emissions, available at http://cdiac.esd.ornl.gov/trends/emis/em_cont.html 39 Audra Ang, China Overtakes U.S. as No. 1 Emitter of Carbon Dioxide, Sci-Tech Today, June 21, 2006. 13

Population Also Imperative to Mexico s strategy is a population growth analysis of both countries. Population growth has stressed the freshwater source. This growth has been large particularly in states that depend on the Colorado River. A study of the effects of population growth on the Colorado River basin found [p]opulation in Arizona, for instance, jumped from about 3.7 million in 1990 to over 5.1 million in 2000 a roughly 40 percent increase (this rate would double Arizona s population in less than 20 years). 40 Colorado saw a lower, although still significant, increase from 3.3 million in 1990 to roughly 4.3 million in 2000 (a thirty percent increase). 41 The U.S. population has more than doubled since the signing of the 1944 water treaty from 140 million to over 300 million. This analysis, however, cuts both ways. The Mexican population has almost quadrupled to over 100 million in the same amount of time. Even still, Mexico s four-fold increase in population size represents almost one third of the total U.S. population. Populations in both countries are continuing to grow. 40 Committee on the Scientific Bases of Colorado River Basin Water Management & National Research Council, Colorado River Basin Water Management: Evaluating and Adjusting to Hydroclimatic Variability 7 (The National Academic Press)(2007). 41 Id. 14

The UN predicts that the world's population will stabilize in 300 years to about nine billion people, with an average life expectancy of 95 years. 42 Population growth estimates 300 years in the future can be wildly inaccurate. 43 If the UN model proves to be predictive at all, both the U.S. and Mexico can expect at least a 30% increase in populations that will depend on the Colorado River. Population growth is stressing freshwater sources around the world. 44 As of 1998, over 166 million people in 18 countries were suffering from water scarcity. An additional 270 million were considered to be water stressed. 45 According to 1996 UN medium projection, the percentage of the world's population in countries experiencing water stress and scarcity will increase more than fivefold-from eight percent in 1995 to 42 percent in 2050. 46 While the studies on global water scarcity bring little comfort to Mexicans and Americans living along the Colorado River, the silver lining for Mexico is that those countries 42 Kas Roussy, World Population Will Stabilize at 9 Billion, UN Says, CBC News, Nov. 15, 2004. 43 Id. 44 Water, Easing Scarcity: Population and The Future of Renawable Water Supplies, Union of Concerned Scientists, 1998 available at http://www.sci.sdsu.edu/salton/popfreshwatersources.html 45 World Resources Institute 1996 46 Water, Easing Scarcity: Population and The Future of Renewable Water Supplies, Union of Concerned Scientists, 1998 available at http://www.sci.sdsu.edu/salton/popfreshwatersources.html 15

dealing with water stress are allies in their fight to maintain the Colorado River as a source of freshwater. This is one piece of a potential strategy in the case of U.S. failure to comply with the 1944 treaty. Section III - Possible Mexican Strategies Responding to U.S. Failure to Comply with the 1944 Treaty A call to action on behalf of Mexicans and the Mexican government presupposes the U.S. failure to comply with the terms of the 1944 treaty. This assumption is grounded in ecological research 47 as well as common sense. It is clear that the Colorado River cannot sustain its current payload without drastic change on the part of both countries, change which does not appear likely to occur. Assuming no global warming effects by humans, by 1960 the River will miss deliveries 40% 48 of the time. Perhaps the greatest strain on the river is the population growth on both sides of the border. Given the realities of climate change on the river, and the history between the two countries, Mexico would be foolish to assume that the U.S. will comply with the treaty. Full compliance seems impossible even if the U.S. wanted to. The theory that the U.S. will fail to comply with this bi-lateral treaty is also reinforced by the fact that the U.S. has failed to comply with other treaties and has previously treated Mexico unfairly regarding water. Vienna Convention on Consular Rights The Vienna Convention on Consular Rights (VCCR) is a multilateral treaty with 49 signatories 49, including Mexico and the United States, which codifies consular practices that developed through customary international law by enumerating the basic legal rights and duties 47 Supra note 29 48 Supra note 33 49 Vienna Convention on Consular Rights, preamble, Apr. 18, 1961. 16

of signatory States. 50 These rights and duties include the establishment and conduct of consular relations, by mutual consent and the privileges and immunities of consular officers and offices from the laws of the receiving State (the country where the foreign consular office has been established). 51 The United States became a signatory six years after the creation of the convention and is one of four countries that has yet to ratify it. Mexico signed in 1963 and ratified two years later, effectively incorporating the convention into Mexican law. At the time, the United States was also party to the Optional Protocol Concerning the Compulsory Settlement of Disputes, a part of the convention under which signatories agreed to accept the jurisdiction of the International Court of Justice (ICJ) to settle disputes between signatories to the Convention regarding the agreement s provisions. The convention and optional provision have both been a source of tension between the United States and Mexico. In 2006 a 5-4 Supreme Court decision involving a Mexican national, Moises Sanchez-Llamas, reviewed certain provisions of the VCCR. In Sanchez-Llamas the Court held that Article 36 of the VCCR, a provision which requires that foreign nationals who are arrested or detained be given notice without delay of their right to have their embassy or consulate notified of that arrest, did not apply to State courts. 52 Article 36 further complicates the tension between the United States and Mexico. In 2003, before the Sanchez-Llamas decision, Mexico brought suit against the United States in the ICJ for the failure to notify 51 Mexican nationals of their rights under Article 36. 53 The ICJ held in 2004 that the 51 nationals were entitled to review and reconsideration of their sentences. 54 The United States responded by 50 Id at ch. 1, sec 1, art. 5, 17. 51 Id at art. 2 52 Sanchez-Llamas v. Oregon, 548 U.S. 331, 335 (2006). 53 Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 at 18. 54 Id at 124 17

promptly withdrawing itself from the optional protocol set out in the VCCR. In tandem with this U.S.-Mexico tension, a U.S. case which would eventually hold that the 2004 ICJ ruling and parts of the VCCR are not applicable against the States was working its way up to the United States Supreme Court. 55 In 1997 Jose Medellin, one of the 51 nationals at issue in the ICJ ruling, was convicted of a brutal gang related rape and murder of two teenage girls. Medellín was personally responsible for strangling at least one of the girls with her own shoelace. 56 He confessed hours after his arrest and at times even boasted of his participation in the crime. As Mexico was taking the United States to court at the ICJ, Medellin appealed his case. Since he was not notified of his rights under Article 36, Medellin argued that the holding of the 2004 ICJ case entitled him to a review and reconsideration of his case. The Supreme Court of the United States denied relief to Medellin holding that the ICJ case did not constitute enforceable federal law that pre-empts state limitations on the filing of habeas corpus petitions. Medellin was executed several months after his case was decided by the Supreme Court. The U.S. defiance of the ICJ ruling which prompted a Mexican nationals execution, and failed compliance with an international treaty that the U.S. and Mexico were partied to, reinforces the assumption that the United States will eventually fail to deliver the waters promised to Mexico by breaking the 1944 treaty. The Medellin case illustrates a missed opportunity in regards to U.S.-Mexico foreign relations. Compliance on behalf of the United States with VCCR or the ICJ ruling would not have assured Medellin s release. While impossible to know for sure, a rapist and murderer who confessed to the crime would have had little hope of reversal even with the protections laid out in the Convention. At best, it seems that compliance with these agreements might have secured a life sentence for Medellin. Ironically, U.S. compliance with their 55 Medellín v. Texas, 128 S.Ct. 1346, 1351 (2008). 56 Id at 1354 18

international obligations would have showed international support of Medellin s conviction while still netting the same judgment for Medellin. Justice Breyer s dissent realized U.S. responsibility under the treaty when he penned I believe the treaty obligations, and hence the judgment [of the ICJ], resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would 'an act of the [federal] legislature. 57 Wellton Mohawk Mexican assumption of U.S. non compliance with the 1944 treaty is also supported by the bitter taste left in Mexico s mouth by previous dealings between the two countries regarding water. The Wellton Mohawk irrigation project is located in southwestern Arizona on the Lower Gila River, the final tributary of the Colorado River. 58 The area has been used off and on as an irrigation district since the middle of the 16th century. While it is an abundant source of water for irrigation, the salinity of the water has always posed a problem for those utilizing it. In 1951, the Wellton-Mohawk was created by the U.S. Bureau of Reclamation to oversee the irrigation of up to 75,000 acres in the Lower Gila valley, between the towns of Wellton and Mohawk. 59 The district contained roughly a quarter of a million Acre ft./year. 60 The U.S. eventually ran into the same salinity problems that others had. To deal with this problem a drainage system was built in 1963 on the area that emptied into the lower part of the Colorado River, just north of Mexico. 57 Id at 1376 58 History of the Wellton Mohawk Irrigation and Drainage District, available at http://www.welltonmohawk.org/history.html 59 Id 60 Id 19

The U.S. essentially re-routed its salt problem to Mexico without so much as a warning. As the 1944 treaty never addressed the quality of the water to be delivered 61, the United States took no action to correct this for almost a decade. In 1973, Mexican presidential candidate Luis Escheverria made the Wellton-Mohawk disaster a centerpiece of his campaign. 62 The election of Escheverria, Mexican threats to take the U.S. to the Hague, and some new geologic soundings indicating that Mexico might well become one of the biggest oil-producing nations in the world 63 convinced the U.S. to sign an agreement in the mid 70 s to correct the situation. The plan was to treat the water through a desalination plant in Yuma. The plant was completed almost two decades later and never went into operation. Mexico built an extension from a surface drain that was part of the plant and directed the return flow from the Wellton-Mohawk to the Pacific Ocean. 64 A. Mexico s Legal Options As discussed above, Mexico s options in the event of U.S. failure to comply with the 1944 treaty are outlined by the competing Latin axioms rebus sic stantibus (things thus standing) 61 Supra note 22 62 Marc Reisner,Things Fall Apart, available at http://www.aliciapatterson.org/apf0301/reisner/reisner.html 63 Id 64 Id 20

and pacta sunt sevanda (promises must be kept). In a likely scenario where the U.S. backs out of the treaty, Mexico has very few legal options available to continue depending on the water source. The best option is to hold the United States accountable to the promises they make through bilateral and international treaties and to do so by enlisting the support of the international community. Advantages The biggest advantage of the strategy to hold the U.S. accountable to the treaties they sign is that Mexico does not have to act alone. The United States is currently actively treatied with almost every nation in the world 65 and is engaged in seven bilateral treaties and five multilateral treaties concerning water. 66 While most concern fishing rights 67, bi-national agreements with Canada serve as a starting point for Mexico looking for allies and interested parties to hold the U.S. accountable to the 1944 treaty. Canada makes a good candidate not only because of their geographic location to the United States and Mexico, but also because the legal treatment of and bi-lateral agreements on water rights between the U.S. and Canada mirror those with Mexico. In 1909, 10 years after the creation of the IBWC, a U.S.-Canadian equivalent was created in the International Joint Commission (IJC). The IJC is created by the 1909 Boundary Waters Treaty signed by Canada and the United States. The commission is comprised of a six member panel: three are appointed by the President of the United States, with the advice and approval of the Senate, and three appointed by the Governor in Council of Canada, on the advice of the Prime Minister. With the help of 65 U.S. Department of State, Treaties in Force, available at http://www.state.gov/documents/organization/123746.pdf 66 Id 67 Id 21

experts from both sides of the borders, the Commission sets up boards and acts impartially to solve issues regarding water at the border. It is no surprise to find bi-national commissions on both sides of the U.S. border dedicated to resolving water disputes. These commissions recognize that each country has an effect on the other s water supply. Much of the IJC s work focuses on lakes used for recreation, power, freshwater, and irrigation water for farming. Both commissions serve an insular minority that has no say in today s water politics: future generations affected by the use of border waters. The IJC recognizes that the needs of the Commission s constituents change from time to time. The Commission explains that: In some cases the International Joint Commission plays the role of authorizing uses while protecting competing interests in accordance with rules set out by the two governments in the Treaty. For example, the Commission may be called upon to approve applications for dams or canals in these waters. If it approves a project, the Commission can set conditions limiting water levels and flows, for example to protect shore properties and wetlands and the interests of farmers, shippers and others. After the structure is built, the Commission may continue to play a role in how it is operated. 68 Disadvantages Mexico s best and most obvious ally in the struggle to maintain the Colorado River deliveries specified in the 1944 treaty is Canada. By nature of shared boundaries and resources 68 International Joint Commission Mission Statement, available at http://www.ijc.org/en/background/ijc_cmi_nature.htm 22

with the United States, Mexico and Canada bookend the U.S. providing the United States with incentive to treat its brothers and sisters to the North and South respectfully. While turning to the IJC seems like Mexico s most reasonable option in the case of failed compliance with the Water treaty, there are many disadvantages. The weakness in this strategy is outlined by the environmental impacts of the Ground Coulee Dam and subsequent failure of the IJC to take action. The Grand Coulee Dam is a large hydroelectric gravity dam located on the Columbia River. It impounds Lake Roosevelt which backs up 150 miles (241 kilometers) to the Canadian border and is the largest electric power facility and cement structure in the U.S. It is so large that it exceeds the height of the Great Pyramid of Giza and contains enough concrete to build a fourfoot wide, four-inch deep sidewalk twice around the equator. 69 It has been called The mightiest thing ever built by a man, by Woody Guthrie, the folk singer whom the U.S. government hired in 1941 to write pro-dam propaganda. 70 The United States applied to the IJC for approval seven years after beginning construction on the Grand Coulee Dam. U.S. attitude towards the legitimacy of the commission is evidenced by the language of the approval application. Technically, the necessity for securing the approval of the Commission of the construction and operation of the project might reasonably be questioned, but nevertheless, in view of the possibility that operation of the control dams may at times moderately increase the levels or stages of the Columbia River at and for a short distance above the international boundary, the Government of the United States desires that the Commission give 69 U.S. Department of the Interior, Grand Coulee Factsheet, available at http://www.usbr.gov/pn/grandcoulee/pubs/factsheet.pdf 70 Woodie Guthrie, Roll on Columbia (Rounder Records 1941). 23

its approval to the project works and to the plan of operation which the Bureau of Reclamation proposes to adopt, in order that the matter may be beyond controversy. 71 To be clear, setting conditions limiting water levels and flows for the interests of farmers, shippers and others is exactly the type of responsibility the commission has. 72 Despite the flippant U.S. attitude towards the IJC, the Commission conducted three formal hearings after the United States applied to the IJC, the first of which took place less than a month before the first big generator at Grand Coulee would begin producing electricity. Many environmental concerns were raised during these hearings. Most importantly, of concern to many local citizens was the effect of the dam on local anadromous, ocean fish that breed in freshwater, populations. Of particular importance was the threat to salmon that spawn in those waters. Salmon had tremendous cultural and dietary significance to local indigenous populations of Ktunaxa-Kinbasket, Okanagan, Sinixt, Shuswap peoples. The Confederated Tribes of the Colville Reservation centered their lives on the Columbia River Salmon before construction of the dam. Tribal members would eat a pound and a quarter of salmon a day. The most sacred ceremonies of Indian life, along with the most intensive season of work, feasting and recreation, revolved around the summer migration of salmon. 73 Concerns about the salmon, and subsequently indigenous populations who depended on the fish for survival were never addressed in depth by the IJC. This was mainly because part of the Coulee Dam project incorporated plans to build hatcheries to replace the anticipated four percent loss in anadromous wildlife. The IJC, as expected, approved the Grand Coulee Dam 71 U.S. application to ICJ regarding Grand Coulee Dam. 72 Supra note 71. 73 Blaine Harden, The Grand Coulee: Savior for Whites, Disaster for Indians, available at http://www.aliciapatterson.org/apf1504/harden/harden.html 24

with a warning That in stocking the Grand Coulee reservoir with game fish, the Commission considers it advisable that the United States Government or the State of Washington take appropriate steps as to secure an equitable distribution thereof throughout the reservoir. Over 1,000 miles of spawning grounds 74 were removed, and the dam permanently blocked salmon migration to the north. This resulted in the loss of almost all anadromous fish on the Columbia River. This had profound impacts on the indigenous populations who depended on salmon for survival. The devastation of the Colville way of life is particularly poignant as they were one of the the last Indian groups in the United States whose lives, as of the 1930s, had not been fundamentally changed by whites. 75 Colville way of life was changed forever. 76 With the centerpiece of their economy destroyed, the Furthermore [i]nundation of the river valleys above the dam took much of the best reservation farm land, and forced half or more of the Colville tribe's population and a number of Spokane to move from their homes with minimal compensation. 77 IJC s inaction against the U.S. given the environmental impact of the dam project may leave little to be desired by Mexicans looking for an ally in the struggle to maintain water rights. The silver lining of the disastrous effects of this Canadian-U.S. water project is that the brunt of environmental and economic loss was on the U.S. side of the border. Given that the Coulee dam is the largest U.S. and fourth largest world producer of electricity in the world, the U.S had an incentive to economically deal with any environmental or human externality. For example, each member of the Colville Confederated Tribes received a federal reimbursement for almost $6,000 74 Dams of the Columbia Basin & Their Effects on the Native Fishery available at http://www.ccrh.org/comm/river/dams6.htm. 75 Id 76 Id 77 Id 25

to compensate for the land confiscated to construct the dam. 78 While it is difficult to put a price on environmental impact and loss of a way of life by indigenous people, it seems likely that the largest U.S. producer of electricity can pay that price regardless of cost. Canada, on the other hand, had no economic loss and thus no incentive to intervene in the project. In attempting to court Canada as a potential ally to prevent an environmental impact far greater than the Coulee dam, Mexico needs to appeal to Canada s sense of responsibility as well as their pocket book. B. Mexico s Other Options Mexico is a country that plays by international rules. While admirable, this limits foreign policy strategies against the United States. Thinking outside the box, Mexico has several other alternative strategies to pressure the United States into compliance with the 1944 treaty. Mexico has a resource that the United States relies on and whose economy might collapse in the short term without: migrant labor. It is estimated that 57% of the illegal migrant labor in the United States is from Mexico and that 24% are from other Latin American countries. 79 Mexican immigrants are a huge force on the U.S. economy. For example, illegal immigrants pay over $7 billion annually to social security. 80 Illegal immigration is currently a hot topic, and many would argue that any economic benefit the U.S. receives from illegal labor is outweighed by the cost. 81 This is a debate that is far from resolved, yet it is a bargaining chip that Mexico has at the table. Using exploitive labor to secure freshwater for survival is far from an ideal solution for Mexico. The fact that it has merits as a possible strategy shows how dire the situation is in Mexico. 78 The Colville Indian Tribes, available at http://www.u-s-history.com/pages/h1547.html 79 Pew Hispanic Center Report on Immigration, available at http://pewhispanic.org/files/reports/61.pdf 80 Eduardo Porter, Illegal Immigrants Are Bolstering Social Security With Billions, N.Y. Times, April 5, 2005. 81 See generally Federation on Immigration Reform 26

Mexico s final strategy is to wait and hope for the best. This strategy may not sound appetizing to many who depend on the Colorado River for water, but if other global environmental problems and their solutions are of any relevance it should not be brushed aside. The ozone layer serves as an example of human intervention in the 11th hour of an environmental tragedy. There was a time when the United States was criticized for its production and use of CFCs. Yet the United States passed the Clean Air Act Amendments of 1990. This incorporated the Montreal Protocol, an international treaty designed to protect the ozone layer, as a part of American law three years after the international community signed onto it. While the ozone layer is not back to pre-cfc levels, it is clear progress been made and that the hole will not lead to the global catastrophe that was once predicted. 82 Conclusion The depletion of freshwater sources is a problem that is continuing to get worse with global warming and human population growth acting as catalysts. It is imperative that Mexico begins formulating a strategy today in anticipation of U.S. failure to comply with the terms of the 82 Petra Hertichack, Ozone Layer is 'Getting Better', BBC News, August 2003 available at http://news.bbc.co.uk/cbbcnews/hi/sci_tech/newsid_3115000/3115707.stm 27

1944 Water Treaty. The treaty itself is a symbol of historic turmoil and unfair resource allocation between these two countries. Mexico is justified in assuming the United States will use the diminished runoff of the Colorado River, as a result of global warming, to withdraw from the 1944 treaty per Article 10, section B clause concerning severe drought. The assumption of U.S insensitivity towards Mexican water use and rights is informed by U.S.-Mexican history, U.S. non compliance with other international treaties like the VCCR, and the Wellton-Mohawk disaster. The best strategy available to Mexico is to enlist the support of the international community by targeting countries that are currently treatied with the United States regarding water use rights. Canada, as the likely first candidate, brings to the table many advantages. The structure of the IJC closely resembles that of the IWBC and Canada s geographic location is highly desirable. The IJC, however, has shown an unwillingness to stand up the United States without a viable economic or human interest in the water concerned. It is unlikely that the international community, including the United States, will be unwilling to help Mexico secure freshwater. This help, however, may not come in the form of the Colorado River. The studies suggest that the United States will be unable to provide promised water to Mexico, even if they so desired, in as little as 50 years. Aid from the United States can come in many other forms, the most promising of which is ocean water desalinization plants. This is a method which was attempted and was only partially successful at Wellton- Mohawk. Mexico is wise to expect the loss of the Colorado River but cannot afford to wait for the United States to cancel the treaty to do something about it. The conversation regarding diminished freshwater has to begin as soon as possible. While the United States may have a temporary advantage over Mexico regarding the use of the Colorado River as a freshwater source, global warming and human population growth do not discriminate based on nationality. 28

There may come a time in the very near future when the United States, with cupped and outstretched hands, turns to the rest of the world for water. The United States should ask itself if in the meantime it will continue to make decisions out of sync with the rest of the world (below) or will be willing to hold itself accountable to the promises it makes and work with other nations in the world to secure freshwater for everyone. 29

83 83 Participation in the Kyoto Protocol. Dark green indicates countries that have signed and ratified the treaty, grey is not yet decided and red is no intention to ratify. 30