AMIRA NOEUV

US-MEXICO TRANSBOUNDARY WATER-SHARING

& HUMAN RIGHTS VIOLATIONS

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Table of Content Abstract 3 Water as a Human Right 3-6 - International Recognition 3 - US Recognition 4 - Mexico Recognition 6 US and Mexico Transboundary Water Relations 6-8 - 1944 Water Treaty 8 Human Rights Violations 10-12 - Underrepresented Communities 10 - Immigrants 11 - Indigenous Groups 12 Violation in Context of the 1944 Water Treaty 12-14 Considerations for Policies 14-16 Citations 17-18

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Abstract Mexico and the United States share many water basins with most consideration given to the Colorado River and

the Rio Grande. One of the reasons transboundary water resource management is complicated is that Mexico and

the United States each have their own sets of acts pertaining to water allocations. Pollution from the rapid

industrial and agricultural developments, climate change, and population growth further complicate transboundary

water sharing between the US and Mexico. The primary legislation between the two countries is the Treaty for

the Utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande (“The 1944 Water

Treaty). The important issues neglected by the treaty, directly infringe on humans rights of socio-economically

underrepresented communities on both sides of the border, immigrants, and indigenous groups. While a few laws

have passed since to elaborate on specific circumstances, the treaty is still heavily relied on most. This paper

seeks to understand water as a human right both internationally and within the two states. It will then analyze the

binational water agreements, particularly the 1944 Water Treaty, to demonstrate the violations of human rights as

a result of their shortcomings. Successes of these treaties and governing bodies, such as the International

Boundary and Water Comission, are also addressed and taken into consideration for policy recommendations.

Water as a Human Right

The fundamental concept of human rights is to protect human life. Without water, there is no life; yet

there are no formal human rights laws for this essential basic need, which would provide the bases for

universal legalization, responsibility and accountability. International norms regarding access to clean

water and adequate sanitation are reflected in the public’s expectations that their governments are

responsible for ensuring these needs are met.

INTERNATIONAL RECOGNITION

The UN General Assembly and the Human Rights Council recognize the right for equitable access to

clean water and sanitation in 2010 and are pushing for countries’ support in adopting it as a human

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rights law. Currently, water is only considered as a “derivative” right eluded in several important

treaties and covenants such as the 1948 Universal Declaration of Human Rights (UDHR); the 1966

International Covenant on Economic, Social and Cultural Rights (ICESCR); 1966 the International

Covenant on Civil and Political Rights (ICCPR); the 1963 International Convention on the Elimination

of All Forms of Racial Discrimination; the 1979 Convention on the Elimination of All Forms of

Discrimination against Women; and the 1989 Convention on the Rights of the Child. These agreements

are to protect the rights to life by seeking to secure the freedom to enjoy a standard of living adequate

for one’s health and well-being. Though these agreements and covenents do not explicitly address water

concerns, the Office of the High Comissioner for Human Rights put forth the General Comment No. 15:

The Right to Water acknowledges the importance to adequately confront global water availability,

quality, and equitable access in order to fulfill international human rights laws such as the ones

mentiond (Arts. 11 and 12 of the Covenant).

UNITED STATES RECOGNITION

The United States hesitates to officially recognize the right to water. In its response to the General

Comment No. 15: The Right to Water, it stated that while it recognizes the water issues and supports the

goals of achieving universal access, it disagrees with formulating it under a the framework of

international human rights laws. It argues that the General Comment No. 15 is overgeneralizing the

right to water in the other human rights covenants and agreements when they actually lack of concrete

specifications; therefore, the loose interpretation of what these documents insinuate cannot be used as a

legal basis for water as a human rights (Views of the United States of America on Human Rights and

Access to Water).

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Formal recognition of water as a human right would mean that international laws can hold a state

accountable for ensuring that they do not get violated and the US tends to shy away from universal

legalization of many things. In fact, all though it is a party of the ICESC and supports its water and

sanitation goals, it has not ratified it (Thor 324). Much of this has to do with the Constitution and its

perspective on civil and social rights. It views human rights as civil and political rights, where elements

spelled in the ICESC are not stated in the Constitution (Thor 319). Furthermore, the US political

structure delegates, water rights are more of a state’s prerogative than a federal one, which results in

varying legislations (Donahue & Klaver 8). For example, while the United States as whole does not

endorse the legality of water as a human right, California became the first state to legally do so. It

ratified the Assembly Bill No 685 Human Rights to Water in 2013, which reflects international

framework (UC Berkeley’s International Human Rights Law Clinic 6).

Nonetheless, the US demonstrates some federal commitment to addressing the challenges of water rights

abroad and domestically. Because of social expectations and norms, the US is made to ensure access to

safe drinking water and adequate sanitation for its citizens. Thus, the government passed the Clean

Water Act (1972) to address water pollution by “restor[ing] and maintain[ing] the chemical, physical,

and biological integrity of the Nation’s waters (Sec. 101, a)”. In addition to this primary federal law, the

government also passed the Safe Drinking Water Act (1974) to regulate public drinking water meeting

safety requirements (Sec 1412); and the Resource Conservation and Recovery Act (1976) to work with

states in “prohibiting future open dumping on the land…assuring that hazardous waste management

practices are conducted in a manner which protects human health and the environment… [and] requiring

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that hazardous waste be properly managed…(Sec. 1003, a).” Despite these federal laws and continual

support for promoting clean water and sanitation, it is curious that the US is reluctant to acknowledge

water as an human right law when one of its states is able to.

MEXICO RECOGNITION

Unlike its counterpart, Mexico was quick to amend its constitution in 2012 to reflect the UN’s

declaration of the human rights to water and sanitation access in 2010. Before the amendment, the

constitution already had specific references to water governance in accordance to international laws. In

fact, five of its principles are related to water resource management, with the majority of the principles

outlined in Article 27. It made distinctions between brackish water and freshwater resources as well as

regulations of groundwater. The constitution specified these different types of water resources as well

as surface water to be under federal law and ownership; but any that is outside of the constitutional

definition can be considered as private water resource (Diaz 490-491). In 1992, the National Water

Law was ratified to enforce the terms of Article 27 and established Comision Nacional Del Agua

(CONAGUA), which addressed the structure and functioning of water and sanitation systems. In 2004,

the law was revised to further decentralize and include civil society. Article 115 further states the

responsibility of municipalities of such services (UN-Water Country Brief: Mexico).

In 2012, the government amended Article 4 of its constitution with a new paragraph that established

water as a human right and that the state is responsible to protect it by ensuring the sanitation,

accessibility and equitable allocation. The Federal Revenue Law established a system of charges for

water sectors and wastewater discharges to be published annually. However, recent climate change,

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population growth and developmental growth challenged this responsibility because of the recent

demands and Mexico continues to struggle with equal allocation, maintaining power sewage systems,

providing potable water to many individuals. As of 2011, 13 million people still did not have drinking

water services in their communities. Disparities are not only among sparse rural communities but also

regionally. For example, only 31% of the state’s fresh water supply goes to the northern, central and

northwestern part of the country even though 77% of the population resides there and 87% of Mexico’s

GDP results from the industrialized region (IDEAS). Furthermore, enforcing many of these laws are

difficult due to underfunding (IDEAS 2). Nevertheless, in 2011, 2030 Water Agenda of Mexico was

created as a long-term plan to balance the supply and demand for water; mitigate strategies for clean

water resources; and provide universal access. Though Mexico continues to face many challenges to its

right to water agenda, acknowledging it through legislations is a step in the right direction.

US-Mexico Transboundary Water Relations

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The 1,954 miles Mexico-US border stretches across a vastly dry region and yet it shares many bodies of

water, including the Colorado River and the Rio Grande, which runs through several states on either

sides of the border before meeting the Gulf of California and the Gulf of Mexico respectively. Rapid

development over the years along the border resulted in urbanized sister cities, industrial and

agricultural expansion; thus, issues of climate change, population growth, and industrial and agricultural

pollution further complicate transboundary water sharing between the US and Mexico.

Further adding to the challenges, the binational management of the water resources is multisectoral and

several state, federal and international laws governs water-sharing (Sanchez 128).

Though each side have their own set of acts pertaining to water allocation, the primary legislation

between the US and Mexico is the 1944 ratified Treaty for the Utilization of the Waters of the Colorado

and Tijuana Rivers and of the Rio Grande (referred to as “1944 Water Treaty” and “the treaty”

hereafter). While a few laws have passed since to address its shortcomings, the treaty is still heavily

relied on to regulate uses of the Colorado River and Rio Grande basins (CSIS 4).

1944 WATER TREATY

The 1944 Water Treaty sets terms for allocation and management of these rivers (less so for the Tijuana

Rivers) by establishing the annual distribution requirements between both countries (see Table 1). The

1944 Water Treaty also created the International Boundary and Water Commission, which is responsible

for implementing the conditions in the treaty and for settling water the international border water

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disputes (Art. 2). The treaty and the IBWC take a utilitarian approach to water management and

allocation in which total benefit and economic welfare takes precedence. While this approach could

enhance the value of water and therefore incentivize better conservation, it makes it difficult to deal with

intergenerational and demographic issues (Kowarsch 14-15). Even now, water is primarily regarded as a

commodity to develop its agricultural and industrial production and while it may aid economic

prosperity, it is encouraging an even greater population growth in a region that cannot meet the water

demands (Ingram 186). In fact, the exploitations and controversial allocations have caused a number of

localized conflicts such as the recent water dispute between Mexico and Texas when Mexico was unable

to meet the allocation requirement.

Allocates to Mexico Allots to US Amount of water equal to all of the waters reaching the main channel of the Rio Grande from the San Juan and Alamo Rivers, including the return flows from the lands irrigated from those two rivers

An amount equal to all of the waters reaching the main channel of the Rio Grande from the Pecos and Devils Rivers, Goodenough Spring and Alamito, Terlingua, San Felipe and Pinto Creeks

Two-thirds of the flow reaching the main channel of the Rio Grande from the Conchos, San Diego, San Rodrigo, Escondido and Salado Rivers, and the Las Vacas Arroyo, subject to the requirement that the remaining one-third shall not be less than an average of 350,000 acre-feet per year

One-third of the flow reaching the main channel of the river from the Conchos, San Diego, San Rodrigo, Escondido, and Salado Rivers and Las Vacas Arroyo, which shall not be less, as an average amount in cycles of five consecutive years, than 350,000 acre-feet annually

One-half of all other flows occurring in the main channel of the Rio Grande downstream from Fort Quitman

One-half of all other flows occurring in the main channel of the Rio Grande downstream from Fort Quitman.

A guaranteed annual quantity of 1,500,000 acre-feet of the waters of the Colorado River, to be delivered in accordance with schedules formulated in advance by Mexico; and any other quantities arriving at the Mexican points of diversion, but not to exceed 1,700,000 acre-feet per year…If Mexico is unable to provide the United States with the average annual 350,000 acre-feet from the Rio Grande designated under Article 4(B)(c) because of "extraordinary drought or serious accident," the Treaty allows Mexico to make up any water debt remaining at the end of one five-year cycle in the next five-year cycle.

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If "extraordinary drought or serious accident" prevents the United States from delivering the guaranteed 1,500,000 acre-feet of water to Mexico from the Colorado River, the water allotted to Mexico under Article 10 will be reduced in proportion to the reduction in United States consumptive uses.

Though the treaty is crucial for the two countries to cooperate on sharing the two main river basins, a

few aspects of the document are outdated. Additionally, although the bureaucratic IBWC plays the

Table 1. Main Features of the Rio Grande and Colorado River Allocation Between Mexico and the US Outlined in Articles 4 and 10 of the 1944 Water Treaty

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dominant role in US-Mexico water resources management, some have criticized it for taking a

considerable amount of time to add minutes to the treaty addressing current water situations and

demands. Several important issues are raised about the document; but most importantly, are the

omission of groundwater use and environmental sustainability, and categorizing ecological concerns as

low priority (). The neglect is not intentional, as it reflects international norms. Not much consideration

was given beyond access to clean water and apportion of surface waters. However, it is now apparent

that the unaddressed issues are correlated and have significant impact on both the quantity and quality of

water for both the United States and Mexico.

Human Rights Violations

International norms acknowledge the need to approach water rights in terms of its equitable, sustainable

and ethical values, which the 1944 Water Treaty neglects because it was more concerned about the

quality of surface water for economic reasons. The treaty’s perspective of water as primarily a

commodity affects the lives and wellbeing of more than 70 million Americans and Mexicans,

particularly along the sister cities of the US-Mexico border. The important issues neglected by the

treaty, directly infringe on humans rights of socio-economically underrepresented communities on both

sides of the border, immigrants, and indigenous groups.

UNDERREPRESENTED COMMUNITIES

Despite the rapid population growth along the semi-arid border, many communities, such as makeshift

colonias, are barely settled and have weak water and sanitation infrastructures due to poverty. Residents

are subjected to hazardous water supplies, which inadequate sewage systems allow animal waste,

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fertilizers and chemicals from nearby industrial plants and agricultural sectors, to seep in and pollute

drinking water (Chen). In many Mexican communities along the border, only about 64-72% of residents

have potable water. Having to purchase bottled water or filtered water from private sources add to their

economic burden (Liverman 611-613). This is also similar in poor, agricultural communities on the US

side where there are virtually no regulations or monitoring of contaminated water systems. Evidently,

data shows that many people from these communities have acute infectious health problems, most

notably, gastrointestinal complications (French). These consequences affect people’s health and violate

several international human right laws.

IMMIGRANTS

The combination of negotiators valuing water as a commodity and the asymmetrical power that allowed

the US to dictate the provisions to the treaty put Mexico at a greater disadvantage

(http://www1.american.edu/ted/border.htm). In addition to the severe drought, the disproportionality of

water distribution to Mexico directly affects cities and rural farmers. Some people predict that the

resulting economic stress will force the most vulnerable people to illegally migrate to the US (Yang).

Even for those who try to cross the border face water inequalities. The federal government’s

conservation efforts at the Arizona’s Cabeza Prieta National Wildlife Refuge, located at border, permits

preservation of supplementary water for preserving the land and for the park’s animals. However,

current refugee policies prohibit transporting drinkable water for undocumented immigrants.

Furthermore, there are various water sites throughout Cabeza Prieta; but they are only reserved for park

visitors (Meierotto 402). Such cases dehumanize people and violate international laws on against

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discrimination and inequitable access to drinking water.

INDIGENOUS GROUPS

There are nearly 100 distinct tribal nations and communities on both sides of the border and along the

major rivers. Regardless, they were excluded from the decision-making process of the 1944 Water

Treaty and are severely affected by the mismanagement of water resources. Tribes such as the

Kumeyaay along California and Baja California, compete for water diverted from the Tijuana Rivers

and the Colorado River to support irrigation or other economic growth projects such as the wineries in

Valle de Guadalupe (Wilken-Roberson 57). All of the tribal settlements along the border do not have

adequate water systems. Instead, they rely on rudimentary hand-dug water collection basins that usually

have no lids to protect it from contamination and evaporation (Wilken-Robertson 56). Additionally,

lack of waste management and pollution resulted in the indigenous communities of San Antonio Necua

reporting that the water tasting like manure and urine due to the absence of wastewater treatment

(Wilken-Roberson 172). The Yaqui tribe on the Mexican side of the border faces a depleted riverbank,

severely dried watersheds, and agrichemical contamination to their aquifers because Mexico divert

significant amounts of water from the Colorado River to Hermosillo city (Chen). The water crisis is a

great threat to the indigenous groups who are historically underrepresented and live below poverty line.

Violations in the Context of the 1944 Water Treaty

The 1944 Water Treaty’s absence and vagueness on the equitable, sustainable and ethical allocation of

water due to its focus on economic interests, allows loose interpretation that created instances that

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violated international standards by diverting water and affecting the quality of the water supplies. “ First,

while the 1944 Water Treaty represents a bilateral shift towards acceptance of limited territorial

sovereignty as a principle of international law, it did not categorically embrace the principle of equitable

apportionment as had the U.S. Supreme Court in domestic interstate rivers disputes, nor did it expressly

invoke anything beyond customary international law as legal precept (Mumme 11).” This allows room

for Mexico and the US to interpret the treaty, which they did on issues of water quality and groundwater

extractions.

The salinity crisis of the Colorado River was because of the vagueness of Articles 10 and 11 of the

treaty. It did not elaborate on the quality of allocated water resources, which resulted the US to pursue

dam building projects that released brackish water down the river and permanently damaged Mexicali

Valley’s agricultural production. The US argued that its only responsibility was to meet the allocation

quota. This interpretation went against international laws and practices regarding environmental

pollution and Mexico threatened to take the case to international courts. A decade later in 1973, Minute

242 was signed, requiring the US to deliver water of equal quality. In return, Mexico has to control its

groundwater mining in the Yuma area to protect US water supplies. Unfortunately, this did not extend

beyond the Colorado River and salinity is still an issue in other areas like the All-American Canal

(WWF). These issues demonstrate that while necessary, pollution of water supplies has to rely on other

international laws besides customary ones (Sinclair 118).

Historically, international laws primarily deals with surface water and often neglects groundwater

extraction and exploitation. This aspect is also reflected in the 1944 Water Treaty and in fact, there are

still no minutes addressing this, which is “crucial if the Treaty is going to remain a viable instrument for

allocating and managing shared water resources (Umoff 95).” In 2004, Mexico claimed that US’s

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irregular assessment and monitoring of its project’s negative effects on groundwater, which Mexico

increasingly relies on. However, many people on both sides of the border rely on groundwater

extraction, especially in the Albuquerque Basin where all residents rely on it for drinking water.

Similarly, water from underground aquifers account for 40% in Arizona, 60% in Texas and the Mexicali

Valley to meet their water needs (Umoff 95). Groundwater reservoirs absorb contamination and

cleaning them is extremely expensive and often undetected because the cost contributes to the inability

in monitoring them all. Additionally, it is possible that depleted aquifers will never recover especially

given the climate change in the region (Sinclair 92). Thus, this raises the question of equitable

groundwater use and the importance of binational commitment in managing it.

Considerations for Policies

Due to the multifaceted characteristic of water governance, it extremely complicated for upstream and

downstream riparians to agree on its implementations. This is even more complex in the context of

transboundary sharing of water resources because discussing allocations is hardly without contentions.

The 1944 Water Treaty and the IBWC’s obligations to implement the conditions will continue to govern

how water is managed between the US and Mexico. Dissolving either would not resolve inequitable

access to water resources, low maintenance and monitoring of water quality, and unsustainable

practices. It is not also to say that efforts have been made by both countries to reverse the problems. A

number of agreements have been enacted since the 1944 Water Treaty to the issues above.

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La Paz Agreement (1983) Agreement between the US and Mexico to cooperate on protecting and improving the environment in the border areas by coordinating national legislations and bilateral treaties in efforts to protect air, land and water pollution.

Minute 261 (1979) Recommendations on further progress to achieving a permanent solution for border sanitation problems.

NAFTA North America Free Trade Agreement between Mexico, the United States and Canada (1993)

Environmental concerns were raised in regards to the increased economic integration between Mexico and the US resulted in “side agreements” that addressed lack of wastewater treatment and drinking systems especially in regards to pollution from maquiladora plants and proper tracking and accounting

Minute 294 (1995) Consideration on the need to support communities on the US-Mexico border area with facilities planning programs to develop their wastewater treatment infrastructures as a solution to its sanitation problems.

Minute 304 / Joint Grant Contribution Program for Drinking Water and Wastewater Infrastructure Projects for Communities in the United States-Mexico Border Area (2000)

Both countries contributing funds to create environmental alternatives for communities along the border, particularly on the Mexican side to protect human health by installing a mechanism for program coordinating, information sharing and agreement on funding priorities

US-Mexico Transboundary Aquifer Assessment Act (2006)

To conduct binational scientific research to systematically assess priority transboundary aquifers, which are essential water sources for many border communities; to also address water information needs of the semi-arid regions

Border 2020 Program (2012) Water goals build upon by the 2012 Border Environmental Program with an 8-year implementation plan to protect and restore watersheds and thereby improve access to clean and safe water; goal also to promote materials management, waste management and clean sites.

Nevertheless, serious considerations on revising aspects of the treaty and further considerations by the

IBWC and governments are crucial to its effectiveness for inevitable water issues now and in the future.

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Prioritization of environmental factors and groundwater use is crucial and the IBWC needs to consider

adding them as minutes to the 1944 Water Treaty because the pollution and contamination of water

resources and reckless withdrawals from aquifers, jeopardize the quality of the water and cause

irreversible damages. The ambiguity of the treaty has also allowed for the US to interpret

“extraordinary drought” in a way that deprives Mexico of necessary water (Birdsong 142). Malpractices

by either state will have consequences for both parties.

Additionally, in order to adhere to international human rights laws, the treaty and IBWC need to

consider equitable water use beyond economic gains and incorporate water ethics into policies. Many

citizens from both sides of the international border have no access to basic water needs because

prioritization of supplying economic developments. For instance, in the US, 80% of the Colorado River

is contributed to agricultural use (Birdsong 142). Public participation is one way that can help to

alleviate the situation. The IBWC needs to provide channels for citizens to be involved in the decision-

making of equitable water access (Armstrong et al. 12).

The IBWC has had successes in dealing with disputes and adding necessary minutes to the 1944 Water

Treaty throughout its history. Nevertheless, considerable attention is needed for monitoring and

assessing projects and the health of water resources, enforcing better practices, implementing a bottom-

up approach in implementing policies, and more. While there many challenges that needs to be

addressed in a timely manner, the flexibility of being able to amend terms, offers a somewhat optimistic

outlook on better management of transboundary water resources. Moreover, addressing and cooperating

on the water issues will help to strengthen US-Mexico relations in general.

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Mumme, Stephen P. "Revising the 1944 Water Treaty: Reflections on the Rio Grande Drought Crises and Other Matters." Journal of the Southwest 45.4 (2003): 649-70. JSTOR. Web. Mumme, Stephen. "The US-Mexico International Boundary and Water Commission in the Sustainable Development Era." (2001): 117-25. Web. "Reservation Water Rights." Mission 2012 : Clean Water. N.p., n.d. Web. 10 Dec. 2015. <http://web.mit.edu/12.000/www/m2012/finalwebsite/problem/waterrights.shtml>. "Resource Scarcity in Mexico: New Challenges and Threats to US Prosperity and Security." World Wildlife, n.d. Web. <http://assets.worldwildlife.org/publications/764/files/original/ipop_mexico_chapter_summary.pdf?1421880317>. Sinclair, Mark A. (1986) "8e Environmental Cooperation Agreement between Mexico and the United States: A Response to the Pollution Problems of the Borderlands," Cornell International Law Journal: Vol. 19: Iss. 1, Article 4. Umoff, Allie A. "An Analysis of the 1944 U.S.-Mexico Water Treaty: Its Past, Present, and Future." (n.d.): 69-98. UC Davis. Web. UN Water. "UN Water Country Brief: Mexico." (n.d.): n. pag. Http://www.unwater.org/fileadmin/user_upload/unwater_new/docs/Publications/MEX_pagebypage.pdf. Web. US Environmental Protection Agency. "Border 2020: US-Mexico Environmental Program." (2012): n. pag. Web. Wilken-Robertson, Michael. The U.S.-Mexican Border Environment: Tribal Environmental Issues of the Border Region. San Diego, CA: San Diego State UP, 2004. Print. Yang, Jo Shing. "TruthOut Archive." Illegal Mexican Immigrants or Water Refugees? N.p., 16 Nov. 2008. Web. 10 Dec. 2015. <http://truth-out.org/archive/component/k2/item/81071:illegal-mexican-immigrants-or-water-refugees>.