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000343 DRAFT-Not for distribution 2001 Mexicali Symposium alleges (at paragraph 3) that the environmental media in the Colorado River Delta were not anticipated by the 1944 Water Treaty. It should be noted that the argument that a subject was uncontemplated at treaty time is distinguishable from the argument that there has been a fundamental change in circumstances since treaty time. The former argument creates no international legal rights under any circumstances for treaty revision; rather it supports at most only international political expectations for a change to a treaty. The latter argument could serve as a basis, under the Vienna Convention on the Law of Treaties, to suspend the operation of an existing treaty, except for the fact that the Mexican Water Treaty establishes an international boundary. Treaties which establish international boundaries are not subject to change under Article 62 of the Vienna Convention.7o The rebuttal available to the United States is that all the ecological problems alleged by Mexico relate to water supply, that the international allocation of supply is clearly addressed by the 1944 Water Treaty/l that Mexico must address all its water needs, including ecological needs, from the water supply it secured in that Treaty, and that the only way to alter that treaty allocation is through treaty amendment, which the U.S. opposes. Treaty amendment, sought by a coalition of environmental interests,72 would require Senatorial advice and consent.13 This argument, that express treaties require express amendment, is substantially buttressed by the decision of the International Court of Justice in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia),74 in which the court rejected Hungary's right to vitiate its treaty commitments because of new-found environmental concerns. The competing arguments at bottom raise questions ofinterpretation75 of the Treaty's purpose and intent. If its purpose and intent was that its allocation of water supplies was to stand as a complete proxy for each nation's responsibility to serve all its internal water needs, including those unforeseen, from the water allocations established by the Treaty, then Mexico has no legal argument. If, on the other hand, the Treaty's purpose and intent was that later discovered water use needs were not contemplated to be supplied within the water allocations established by the Treaty, Mexico would have the argument that water to serve such needs should be supplied under some new or additional agreement. The problem with this conclusion is that, since the Treaty allocation deals with all the water practically available in the Colorado River (unless the River is operating in a substantially surplus condition or water in storage in United States' reservoirs is regarded as extra water) any new or additional agreement would impliedly amend the existing Treaty, putting the two agreements in conflict unless full Senatorial advice and consent were obtained. A "minute" authorized under Article 25 of the Treaty, or any other executive or administrative action not dependent upon the treaty powers of the United States could not effectuate implied amendment of the Senate-approved Treaty, and would thus be ineffective if implied reallocation of water were intended. If the Delta's environmental issues were not contemplated by the 1944 Water Treaty, and thus should be treated independently, the United States could nevertheless have a treaty defense based on the 1944 Treaty. The Mexican Water Treaty provides that the United States and Mexico, respectively, are responsible for all claims arising within their respective territories from the construction, operation, or maintenance of the whole or part of the works authorized by the 7