Phoenix golf courses vs. The Treaty of Guadalupe Hidalgo
August 12, 2019 9:49 AM   Subscribe

Because of intensive human use, the Colorado River no longer reaches the sea. However, Article 6 of the Treaty of Guadalupe Hidalgo states that US citizens shall, "in all time," have the right to travel on the Colorado River to and from US lands. Has Article 6 of the treaty ever been tested in court as a means of restoring (a portion of) the natural flow of the Colorado River?

The relevant part of the treaty states that "The vessels and citizens of the United States shall, in all time, have a free and uninterrupted passage by the Gulf of California, and by the river Colorado below its confluence with the Gila, to and from their possessions situated north of the boundary line defined in the preceding article; it being understood that this passage is to be by navigating the Gulf of California and the river Colorado, and not by land, without the express consent of the Mexican Government."
posted by compartment to Law & Government (5 answers total) 1 user marked this as a favorite
 
I think you'd have a lot of difficulty using a pre-Civil War treaty to enforce a particular route or state on a river, especially when there are so many things that might contribute to the river's demise. In any case, according to Wikipedia, the "Treaty of Mesilla, which concluded the Gadsden purchase of 1854, had significant implications for the treaty of Guadalupe Hidalgo. Article II of the treaty annulled article XI of the treaty of Guadalupe Hidalgo, and article IV further annulled articles VI and VII of Guadalupe Hidalgo."
posted by ubiquity at 10:04 AM on August 12 [2 favorites]


The "free passage to the Gulf of California" clause was explicitly reaffirmed in the Treaty of Mesilla, though:
The vessels, and citizens of the United States shall, in all time, have free and uninterrupted passage through the Gulf of California, to and from their possessions situated north of the boundary line of the two countries. It being understood that this passage is to be by navigating the Gulf of California and the river Colorado, and not by land, without the express consent of the Mexican government; and precisely the same provisions, stipulations, and restrictions, in all respects, are hereby agreed upon and adopted, and shall be scrupulously observed and enforced by the two contracting governments in reference to the Rio Colorado, so far and for such distance as the middle of that river is made their common boundary line by the first article of this treaty.
posted by Johnny Assay at 10:34 AM on August 12 [1 favorite]


My very superficial answer is that individual people rarely have standing to enforce treaty rights, and also that any guarantees were made to the US government, so if the US government otherwise permits use of the river that interferes with those rights, that's the US government's business.
posted by praemunire at 10:59 AM on August 12 [1 favorite]


The Treaty of Guadalupe Hidalgo and the Treaty of Mesilla were, in effect, repeatedly revised through a series of numerous subsequent conventions and treaties between the United States and Mexico. This sequence of treaties is summarized on the website of the International Boundary and Water Commission (see also their history page) and on Wikipedia. That commission was itself established by one of these treaties, the 1889 convention on the Rio Grande and the Rio Colorado, due to "the difficulties occasioned by reason of the changes which take place in the bed of the Rio Grande and that of the Colorado river".

A later treaty, in 1944, authorized the construction of dams on the Rio Grande, and specified the allocation of water from the Colorado River between the two countries. The opening proclamation motivates the treaty by "taking into account the fact that Articles VI and VII of the Treaty of ... Guadalupe Hidalgo ... and Article IV of the [Treaty of Mesilla] regulate the use of the waters of the Rio Grande ... and the Colorado River for purposes of navigation only; [and] considering that the utilization of these waters for other purposes is desirable in the interest of both countries".

Most recently, a 1970 treaty further clarified the situation, and specified conditions under which the two countries could restore the flow of Colorado River if disrupted.

Most of these treaties and conventions were much more concerned with clarifying the exact location of the border rather than with clarifying the freedom-of-navigation provisions of the earlier treaties, although the 1944 treaty does briefly mention the latter. Even at the time the 1848 and 1853 treaties were written, it seems like quite a stretch to imagine that their intent could have ever been construed to encompass a cause of action to reverse decades of gradual change; and certainly the later treaties and conventions seem even more clearly to rule out such a theory.

(I am not a historian nor a lawyer. The above is amateur online research because I was curious.)
posted by Syllepsis at 12:02 AM on August 14 [1 favorite]


Thanks to everyone for all the answers. After searching more, I can't find anything to suggest that this approach has ever been tested in court.

Regarding the issue of standing to enforce treaty rights, I found a couple articles on the subject here and here (there may be better or more current sources; this is just from a cursory search). But that may be beside the point; even if you did have standing, I think the 1944 treaty obligates the US to provide enough water to Mexico that the Colorado would be navigable to the sea if Mexico did not use that water for other purposes. US courts would perhaps say, in essence, "We're sending enough water, take it up with Mexico if they don't leave enough for your boat."

One more quick note on standing: The Treaty of Guadalupe Hidalgo and the Treaty of Mesilla both provide navigation rights explicitly to US citizens (as opposed to the US government), so perhaps that means something. Or not. I am not a lawyer. I am just a person who wants to take a boat trip to the Sea of Cortez.
posted by compartment at 1:22 PM on August 15


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