Two States, Equal Bargaining Power, One Polluter

 

Two States, Equal Bargaining Power, One Polluter

By Samir Halawi, Staff Contributor 

The International Boundary and Water Commission (“IBWC”) is a binational commission established by the 1944 Treaty between the U.S. and Mexico,[1] with the mission of “provid[ing] binational solutions to issues that arise during the application of United States – Mexico treaties regarding boundary demarcation, national ownership of waters, sanitation, water quality, and flood control in the border region.”[2] Pursuant to the 1944 Treaty, IBWC decisions are recorded in the form of “Minutes” that, following approval by the U.S. and Mexican governments, serve as binding international agreements between the U.S. and Mexico.[3] However, , these Minutes are unlikely to have a significant effect of remedying the environmental problems caused by Mexico’s city of Tijuana polluting the Tijuana River, which flows downstream to the U.S.

The IBWC’s most recent action to remedy continuous transboundary wastewater pollution from Tijuana’s failing sewer infrastructure into Tijuana River is Minute 320 passed on October 5, 2015, the “General Framework for Binational Cooperation on Transboundary Issues in the Tijuana River Basin.”[4] Minute 320 has been a failure and there is a strong argument that any subsequent Minutes would also fail under the current regime.

Minute 320 has been an abject failure because it derives its authority from the 1944 Treaty, which gives the States relatively equal negotiating power and obligatory responsibilities in the context of resolving transboundary disputes which is detrimental to the U.S. but causes very little comparative harm to Mexico.  The reason for this discrepancy is that with regards to the Tijuana River, Mexico is the upper riparian State and the U.S. is the lower riparian State. Therefore, any wastewater bypassed into the Tijuana River due to eroded or failed sewer pipes in Tijuana flows directly downstream to the U.S., polluting the Tijuana River Valley, valley ecosystems, and California border cities and beaches. This is becoming increasingly common place due to Tijuana’s rapidly increasing population stressing an already strained sewer infrastructure.[5]

Formulating a Minute that would impose greater obligations on Mexico is unlikely to be approved because Minutes must be approved by both States of the IBWC. It would not be logical for Mexico to approve and contend with a Minute that would impose greater obligations on itself given its roughly equal bargaining power granted in the 1944 Treaty. Following the most recent massive wastewater spill, of between 143 and 250 million gallons, into the Tijuana River,[6] pursuant to Minute 320, IBWC sent a water quality task force to Mexico to investigate and make recommendations.in effect unenforceable, good-faith promises to notify the U.S. of any future breaches along with cosmetic “fixes” that would be unlikely to create a different outcome in the event of a future breach by Mexico. Given this, one can assume that the Mexico Section of the IBWC refused to agree to more stringent measures of accountability to remedy the polluting.

It should be clear that good-faith alone will not be enough to get Mexico to cease polluting or to take on effective obligations that will lead to greater cooperation when it comes to preventing pollution from Mexico that overwhelmingly affects the U.S. The U.S. must take affirmative steps to adjust the bargaining power of the two parties when it comes agreements that relate to action from Mexico that directly harms the U.S with no corresponding harm to Mexico.

 

[1] Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, U.S.-Mex., Feb. 3, 1944, art. 2, T.S. No. 994.

[2] Water Commission Strategic Plan, supra note 4, at i.

[3] Id. at 1.

[4] International Boundary and Water Commission, United States and Mexico, Minute No. 320, General Framework for Binational Cooperation on Transboundary Issues in the Tijuana River Basin, (Oct. 5, 2015), available at https://www.ibwc.gov/Files/Minutes/Minute_320.pdf.

[5] Stephen Siciliano, Sewage from Mexico Tests Binational Framework, Water L. & Pol’y Monitor (BNA), March 16, 2017.

[6] Minute 320 Binational Tech. Team, Water Quality Workgroup, International Boundary and Water Commission United States and Mexico, Report of Transboundary Bypass Flows into the Tijuana River 1 (2017) [hereinafter Minute 320 Workgroup Report]; id.

[7] Minute 320 Workgroup Report, supra note 6, at 9.

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