Monday, February 11, 2008

New Attacks and Counterattacks in US-Mexico Water War

By Barnard R. Thompson

Without a mighty or sagacious hand to part the waters between the United States and Mexico, episodic conflicts continue over shared river water from the Rio Grande, the Río Bravo in Spanish, water that in principle is governed by the 1944 Water Treaty between the two countries.  And today the apportionments and delivery of Rio Grande water – and the treaty itself – are being judicially challenged by users in both the United States and Mexico.

The current disputes are both part, yet somewhat to the side, of the recurrent failures to supply treaty amounts of water and the resulting water debts.  Yet they are not directly related to interlinking anguish and present-day protests in Mexico over North American Free Trade Agreement (NAFTA) approved corn, beans and sugar imports; or concurrent U.S. complaints with regard to Mexican trucks being authorized to operate beyond commercially exempt zones on highways north of the border.

One major issue is the claim by Texas farmers and ranchers, who charge that Mexico shorted them of water from 1992 to 2002.

On the Mexican side, growers, farm organizations and representatives of state and local governments have filed suits that have reached the Supreme Court.  Basically their charges are that proposed advance payments of water, made by the Vicente Fox (and now Felipe Calderón) administrations, are unlawful and in violation of the Mexican Constitution.

Plus the constitutionality of the treaty itself is being questioned in Mexico.

The USA

According to an Associated Press report published in the Houston Chronicle (“Texas farmers take water war with Mexico to Canada,” February 5, 2008), Texas farmers, water districts and the state government are taking “their long-standing water war” case to a Canadian judge.  This with the Texans’ legal bills already at around US$500,000.00.

“In 2004, the farmers and ranchers sued Mexico for $500 million, arguing that their southern neighbor had shorted them on Rio Grande water from 1992 to 2002 in violation of a 1944 treaty.  In June, a tribunal operating under the North American Free Trade Agreement [NAFTA] decided it did not have jurisdiction, stalling the case before it got started,” the piece said.

“Most frustrating to the landowners was that the U.S. State Department had intervened at the last moment and sided with Mexico.”

Now however, concerned that Mexico might short them again, the farmers are taking a new approach.

“The farmers can sue Mexico under the NAFTA rules because they have property – in this case water – in Mexico that Mexico has appropriated,” the AP report says.  “NAFTA is the only way the farmers can seek redress, because the 1944 treaty between the United States and Mexico has no provisions for individuals suing a country.”

“They will ask a Canadian judge to decide March 25 whether the NAFTA tribunal erred and deprived the farmers of a fair hearing.  The case goes to Canada because both sides agreed in arbitration that if an issue arose they would go to a neutral location.”

Mexico

In 2005, complainants in the northeastern state of Tamaulipas challenged Mexican district court rulings that bilaterally agreed upon advance payments totaling 510 million cubic meters of water to the United States, by the Fox government, were legal.  Joined by the state government, and armed with a writ of protective injunction (an “amparo”), the growers and users have since taken their case to the Mexican Supreme Court where the prepayment issue is under review – along with a challenge against the constitutionality of the 1944 Water Treaty between the neighboring countries.

In a nutshell, the plaintiffs have charged that the proposed delivery of Mexican water far exceeds quantities specified in the binational treaty.

After initial success with their suit, a district court judge ruled that the complainants lack requisite legal standing for a writ of protective injunction.  On appeal the case went to a circuit court, with other interests joining in, and now the matter has reached the Supreme Court.

The Mexican Supreme Court decided to review the case and prior rulings in 2007, and to determine if the prepayment of water to the United States, by the federal government, is legal and constitutional?  In September the Court first addressed the writ issue, whereas on November 29 the entire matter – including the treaty questions – was given to Justice José de Jesús Gudiño Pelayo to write an opinion to be subsequently ruled on by all justices.

Justice Gudiño’s opinion is expected by year’s end, however with the latest actions initiated in Texas the Mexican deliberations well may find a faster track.

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Barnard Thompson, editor of MexiData.info, has spent 50 years in Mexico and Latin America, providing multinational clients with actionable intelligence; country and political risk reporting and analysis; and business, lobbying, and problem resolution services.