Executive Authority, Adaptive Treaty Interpretation, and the International Boundary and Water Commission, U.S.-Mexico
Robert John McCarthy
affiliation not provided to SSRN
May 12, 2011
Water Law Review, Spring 2011
Conceived as a nineteenth century outpost of Manifest Destiny to demarcate and guard expanded U.S. borders against erosion by meandering rivers; re-engineered in the mid-twentieth century in order to impound and develop the boundary waters; its friends and critics alike say the International Boundary and Water Commission, U.S.-Mexico (IBWC) has become an anachronism, left behind by twenty-first century social, environmental and political issues that it is unwilling or unable to address. Four decades of scholarly criticism consistently portray the U.S. Section of the IBWC as secretive, beholden to regional agricultural interests, indifferent to disappearing water sources, apathetic about associated ecological crises, abusive to its employees, lacking essential diplomatic and professional skills, unresponsive to the needs of a growing border population, and hamstrung by a too-timid reading of treaty language. This article offers alarming new evidence concerning these and even more troubling allegations of gross mismanagement and impending ecological disaster. Yet rather than embrace a crescendo of calls for abolition of the US-IBWC, the author argues that long-neglected constitutional, statutory and treaty authorities provide the key to its salvation. Castigating the U.S. State Department for its pusillanimous refusal to live up to its statutory responsibility for oversight of the U.S. Section, the author urges exercise of dormant Presidential powers to strip the agency of all but diplomatic duties and to assign responsibility for border river management to more competent agencies. Simultaneously, the author delineates treaty, statutory and constitutional authority for adaptive treaty interpretation, to enable the IBWC to address issues such as transboundary aquifer management and cataclysmic climate change.
Number of Pages in PDF File: 124
Keywords: Transboundary, Water, Treaty
JEL Classification: K32, K33Accepted Paper Series
Date posted: May 15, 2011
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