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<br />000343 <br /> <br />DRAFT-Not for distribution <br /> <br />framework to formalize a process that will: "1) consider Colorado River delta restoration studies <br />prepared by government, scientific, academic and nongovernment organizations in the two <br />countries; 2) provide for development of additional studies through the binational technical task <br />force; and 3) formulate recommendations for cooperative projects concerning the Colorado River <br />delta in Mexico to be undertaken by the United States and Mexico. . . ." <br /> <br />The first step in creation of the interactive "framework" envisioned by Minute 306 was <br />an international symposium held on September 11 and 12,2001, in Mexicali, Mexico. The <br />symposium's purpose was primarily to establish an informational baseline. At the conclusion of <br />the symposium, the Mexican delegation to the IBWC adopted a statement (entitled "Courses of <br />Action Identified in the Symposium on the Colorado River Delta Held September 11 and 12, <br />2000) setting forth the basic Mexican positions regarding the environmental condition in the <br />Colorado River Delta. 14 <br /> <br />This paper has been prepared in order to collect and analyze legal authorities relevant to <br />the ongoing relationship between the United States and the Republic of Mexico related to surface <br />and ground water in the border area between the two nations in the vicinity of the Colorado <br />River Delta. It has not been prepared in order to recommend any particular course of action. <br />While the objective is to explore issues from a legal perspective, it is important to note that <br />matters of international relations are more than legal and that all the issues considered here have <br />social, political, economic and other dimensions which may dictate courses of action other than <br />those which legal analysis might identify. The lack of a legal linkage, and recurrent efforts to <br />create a political linkage, between the Rio Grande and the Colorado River exemplify these <br />different dimensions. The Colorado River issues arising under the 1944 Water Treaty have no <br />legal connection with the Rio Grande issues. Different provisions of the Treaty are involved. <br />The promise to deliver 1.5 million acre feet of Colorado River water, contained in Section X of <br />the Treaty, is not a quid pro quo for Mexico's promise to deliver water from Rio Grande <br />tributaries, contained in Section IV of the Treaty, but rather quid pro quo for quieting Mexican <br />claims to additional water from the Colorado River. <br /> <br />The issue addressed by this paper is; What legal rules and principles might mandate or <br />facilitate the provision of ecological water flows to the Colorado Delta? More particularly: Ifthe <br />environmental demand for ecological flows were to be addressed, by whom and under what <br />authority should they be addressed? <br /> <br />II. Status of Ecological Water Flows Under Recognized Levels oflnternational Legal <br />Authority <br /> <br />A. Treaties and Other Agreements <br /> <br />1. U.S. Treaty Powers and Application of the 1969 Vienna Convention <br /> <br />The U.S. Constitutional authorities for the creation of international law include the Treaty <br />Clause,15 the President's foreign relations power, 16 the President's executive power to make <br />agreements implementing treaties,17 Congress' Legislative power to enact laws implementing <br />treatiesl8 and the federal judiciary's power to interpret treaties and implement laws.19 Treaties <br /> <br />2 <br />