Rio Grande Designs: Texans' NAFTA Water Claim Against Mexico

The North American Free Trade Agreement's Chapter 11 investor protections went beyond the traditional direct appropriation language to establish a new right for private foreign investors to claim compensation for government acts that are tantamount to direct appropriation. In 2004, a group of l...

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Bibliographic Details
Published in:Berkeley journal of international law 2007-05, Vol.25 (2), p.228
Main Authors: Paul Stanton Kibel, Schutz, Jonathan R
Format: Article
Language:English
Subjects:
Court decisions
International law
Litigation
North American Free Trade Agreement
Rivers
Water rights
Online Access:Get full text
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Summary:The North American Free Trade Agreement's Chapter 11 investor protections went beyond the traditional direct appropriation language to establish a new right for private foreign investors to claim compensation for government acts that are tantamount to direct appropriation. In 2004, a group of landowners and a water company from Texas' Rio Grande Valley in the US filed a notice of intent to submit a claim against Mexico under NAFTA's Chapter 11. The thrust of the Texans' claim is that Mexico failed to release the quantities of Rio Grande water required under the 1944 Rivers Treaty and that Mexico therefore must reimburse the Texans for economic damages resulting from this alleged improper withholding. 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, on a subsequent 2005 judicial decision in the US that greatly discredited the Tulare Lake holding.
ISSN:1085-5718