Our article begins with an analysis of the historical context and key provisions in the 1944 Rivers Treaty between Mexico and the United States. Next, we explain the expropriation claims process established by NAFTA's Chapter 11 and describe the environmental controversy that has arisen over its implementation. We follow with an account of the Texans' NAFTA water claim against Mexico, including an analysis of this claim's relation to the Tulare Lake decision and parallel dispute resolution proceedings at the International and Boundary Waters Commission.
At the end of this review, our finding is that the Texans' NAFTA water claim against Mexico is not well-founded from either a legal or a public policy standpoint. This finding is based on a close reading of the operative language in the 1944 Rivers Treaty and NAFTA's Chapter 11; on differences between the domestic law context of the Tulare Lake case and the public international law context of the bi-national Rio Grande dispute; and finally, and on a subsequent 2005 judicial decision in the United States that greatly discredited the Tulare Lake holding.
25 Berkeley J. Int'l Law 228 (2007).