2. 2
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
3. 3
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
4. 4
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).
5. 5
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
6. 6
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,
7. 7
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
8. 8
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
9. 9
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
10. 10
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,
11. 11
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
12. 12
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
13. 13
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
14. 14
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.
15. 15
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.
16. 16
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.
17. 17
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