Border Waste Trade: U.S. and Mexico

          CASE NUMBER:         85 
          CASE MNEMONIC:      BORDER
          CASE NAME:          Border Waste Trade/US-Mexico

A.        IDENTIFICATION

1.        The  Issue

     One of the most critical and longstanding international
pollution issue facing the border lands is the discharge of
municipal sewage and industrial wastes into the rivers flowing
from Mexico to the United States.  All the communities on the
Mexican side of the border lack adequate municipal wastewater
collection and treatment systems.  Industrial effluents also
contribute to surface water pollution.  Many Mexican industries,
as well as Maquiladoras owned by U.S. companies have no on site
treatment facilities, and industrial wastes including toxic
substances are dumped, illegally of course, into river systems.

2.        Description

     The U.S.-Mexico border extends approximately 2,000 miles
from the Pacific Ocean in the west to the Gulf of Mexico in the
east. This region lies within the political jurisdiction of four
U.S. States and six Mexican States.  Along the border, there has
been the development of "twin cities" located along the border
between both countries.  Although this region belongs to the
jurisdiction of each individual state, these states share common
air and water resources.  Responsibility for resource management
falls within the political authority of two nations with
different legal systems, national objectives, and most
importantly, different priorities and levels of development.  The
major environmental problem is the shortage and poor quality of
surface and underground water, and the increasing levels of
pollution in urban areas.

     One of the most concentrated problems resides in the
pollution that is found in the ground and surface waters of the
border region.  When the surface waters are no longer sufficient
for a nation to develop, underground water reservoirs, commonly
called aquifers, are resorted to in order to satisfy needs. 
Nevertheless, the uncontrolled mining of groundwater creates
further problems for the future.  First, aquifers may become
irreversibly depleted if pumping exceeds the very slow rate of
natural replenishment by rainfall and percolation.  Moreover,
the increased mining of groundwater creates the risk of aquifer
contamination.

     Excessive over drafting of an aquifer lowers the water table
and allows highly saline surface waste waters from agricultural
and industrial activities to enter and infect the entire
underground water supply.  This situation has worsened as
aquifers are not self cleansing, but instead store contaminants
indefinitely.  Because cleaning and monitoring of underground
pollutants are difficult and expensive, aquifer contamination can
go undetected for years.  In addition, many of Maquiladora plants
have been illegally dumping the toxic waste generated by their
manufacturing process into the local communities' waters, but
officials in both countries have failed to track the sources,
amount and destination of these contaminated waters.  

     The Mexican government has promoted the development of the
border area through the Maquiladora program, initiated in 1965. 
This program allows foreign-owned business to set up
manufacturing plants in Mexico to produce for export.  The
exports go primarily to the United States.  These U.S. factories
are producing enormous amounts of dangerous toxic waste and
pollution.  Although the Mexican environmental regulations
provide that the hazardous waste generated in Mexico by the
Maquiladora plant must be returned to the raw material's country
of origin, not much is being done about it.  

     Many of these plants have been illegally dumping the toxic
waste generated by their manufacturing process into the local
communities' waters, but officials in both countries have failed
to track the sources, amount and destination of these
contaminated waters.  

     Both U.S. and Mexican environmental laws exist, but its
enforcement is still in very primitive stages along the border
area.  Tracking shipments of hazardous wastes across the border
poses unique challenges due to the following situations.  
     (1)  The difficulties in coordinating numerous agencies
     responsible for the regulation of the transported
     waste.
     (2)  The binational logistics of implementing and
     preparing a transboundary report.
     (3)  Uncertainty of the amount of hazardous waste
     generated by the Maquiladoras from U.S. raw materials.
     (4)  Uncertainty as the amount and type of hazardous
     waste transported and the location of the disposal
     site. 

     The disposal of hazardous waste is a problem itself;
however, a related but distinct problem is raised by the
preponderance of abandoned and illegal dump sites.  This is a
problem in both countries.  These sites may have an effect on
human health and the environment as contaminants migrate through
the soil and into the ground water.  By nature, the location of
these illegal  sites are unknown to the public.  The extent of
contamination resulting from illegal dumping is also unknown. 
Nevertheless, there have been reports on health effects on unborn
babies due to the mother's poisoning.  These cases are most
evident along the U.S.-Mexican border region.  

     Often U.S. companies in Mexico have poor sanitation systems,
or they have shallow wells which can easily be contaminated by
inadequate waste disposal.  Improper disposal of hazardous waste
has been linked to elevated levels of toxic contaminants in
humans.  Illegal dumping of toxic waste on road sides or open
fields has resulted in explosions, fires, contamination of
underlying ground waters and generation of toxic vapors. 
Ordinary metals, isotopes, acids, organic compounds and solvents
that can destroy our environment are just a handful of substances
that have been proven to cause leukemia, cancer, and diseases of
the heart, liver and nervous system.

     The Border Environmental Cooperation Agreement is the latest
agreement in the long history of the U.S. Mexican attempts to
coordinate on border sanitation and water quality issues.  Prior
to this agreement, both states were signatories of the Water
Treaty of 1944, which created the International Boundary Water
Commission (see COLORADO and NEW and TIJUANA cases).  This major
treaty quantified each nation's share of the Tijuana, Rio Grande
and Colorado rivers.  However, due to the United States superior
bargaining position, it was able to dictate the actual terms of
the treaty.  This treaty was the first attempt by both
governments to recognize the importance of the resolution of
border sanitation problems.  Specifically, the treaty authorizes
the Commission to plan, build, and manage water works; to enter
into future agreements relating to international waters, and to
settle disputes between the nations involving treaty
interpretation.  This treaty, although fairly innovative and
creative, has many flaws; one such flaw is that the treaty only
focuses on waters along the Rio Grande and the Colorado and
Tijuana Rivers' basins.  

3.        Related Cases

     COLORADO case
     NEW case
     FLORIDO case
     BASMEX case

     Keyword Clusters

     (1): Trade Product            = WASTE
     (2): Bio-geography            = DRY 
     (3): Environmental Problem    = WATER

4.        Author: Ben Singer

B.        LEGAL Cluster

5.        Discourse and Status:  AGREEment and COMPlete


     Since most of the water contaminated by U.S. Maquiladoras in
the Mexican border region stays either in U.S. or Mexican
territories, cooperation is based only on these two countries.  

6.        Forum and Scope: NAFTA and REGION

7.        Decision Breadth: 3 (USA, CANADA, MEXICO)
     The Border Environmental Cooperation Agreement of 1983 is
the latest U.S.- Mexican agreement to address all forms of
pollution- air, land, and water.  It provides a wide mandate for
action on such new and emerging environmental issues implicated
by transport and disposal of hazardous waste, groundwater
contamination and industrial air pollution.  The agreement's
comprehensive scope also allows the notions to undertake
conjunctive management of surface and ground waters.  The border
plan is organized in four major sections.  It's scope is such
that some of the activities specified represent only the
beginning of a series of actions within a ten year program that 
will ultimately improve environmental conditions along the U.S.
Mexican border.  

8.        Legal Standing:  TREATY

     This an executive agreement, and not a formal treaty.  It is
effected through the actions of the President alone and thus it
does not require the approval and support of Congress as does a
formal treaty.  The success of its implementation depends on
continued political goodwill between national governments.  The
high level of executive attention given to this agreement
reflects the sense of urgency and priority that both nations
place on resolution of border pollution issues and may mobilize
other levels of government to address these issues substantively. 

     The Border Environmental Cooperation Agreement is basically
a structural framework for regular bilateral deliberation on more
substantive environmental problems.  However it does not provide
a solution to these disputes, but rather, engenders subsidiary
agreements in all the fields of environmental concern.  This was
the beginning of formal efforts by both governments to protect
and improve the environment in the border area.  Moreover, this
agreement has not remained in its original form.  It has suffered
many alterations and amendments, and is currently in its
definitive form as amended in 1992, and based on the original
border plan of 1983.  

C.        GEOGRAPHIC Cluster

9.        Geographic Locations

     The Plan expands the geographic scope of future trans-
boundary cooperation, and authorizes the nations to focus on
pollution sources outside the border area of the country if the
sources affect the border area of the other.  In general, the
parties are committed to proceed on two separate levels to reduce
or avoid potential adverse environmental impacts of the treaty. 

     a.   Geographic Domain : North America [NAMER]
     b.   Geographic Site   : Western North America [WNAMER]
     c.   Geographic Impact : NAFTA

10.       Sub-National Factors:  NO

11.       Type of Habitat:  DRY

D.        TRADE Cluster

12.       Type of measure: Regulatory Standard [REGSTD]

13.       Direct vs. Indirect Impacts: INDirect

     In the case of the Maquiladora industry, regulations are
suppose to directly limit the manufacturing output of each
industry.  However, because the lack of enforcement by the
authorities it may be argued that regulations do not have an
impact on the industry.   

14.       Relation of Trade Measure to Resource Impact

     a.  Directly Related     : YES  MANUFactures
     b.  Indirectly Related   : NO
     c.  Not Related:         : NO
     d.  Process Related      : YES  Pollution Land [POLL]

15.       Trade Product Identification:  MANY

     Product Type: chemical waste, carcinogens, computer solvent
     products.

16.       Economic Data

     Information on how much toxic dumping goes on in the border
region is limited.  The economic impact is unknown because the
dumping is done illegally.  In addition, not until recently did
the Mexican government begin to track and collect data on this
issue.

17.       Impact of Measure on Trade Competitiveness: MEDium

     The impact of trade restriction is limited.  The Mexican
government does not implement trade restrictions on products that
are manufactured in the Maquiladora plants.  There are no
restrictions on trade that are applied on the basis of how much
toxic waste a company may be dumping into the environment.  In
addition, one of the basic rules of a Maquiladora is that it is
allowed to import intermediate materials duty free as long as a
percentage of the final product is exported.  The Maquiladora
program permits 100 percent foreign investment and allows the
temporary importation of equipment, components and inputs into
Mexico on a duty free basis.  It would be contradictory to these
policies to impose trade restrictions based on toxic dumping.  

18.       Industry Sector: MANUFactures

     Toxic waste is not the main product but a by-product of an
industry.  In the case of the Maquiladora industry is will entail
the manufacture of parts for durable goods.  

19.       Exporters and Importers: USA and MEXICO

     This is a bilateral issue where there is not really an
importer and an exporter but both parties play a major role.  

E.        ENVIRONMENTAL Cluster

20.       Environmental Problem Type: WATER

21.       Name, Type, and Diversity of Species 

     Name:          Many
     Type:          Many
     Diversity:     4,569 higher plants per
                    10,000 km/sq (Mexico)

     A number of cases along the border have been reported to
both the Mexican and U.S. governments regarding birth defects
along this area.  Although not directly proven, it is believed
that pregnant women are poisoned through drinking local water
thus their blood stream will have a serious effect on the born
child. 

22.       Resource Impact and Effect: HIGH and REGULatory

23.       Urgency of Problem: HIGH

24.       Substitutes: RECYCling

F.        OTHER Factors

25.       Culture:  NO

26.       Trans-Boundary Issues: YES

     The major trans-boundary issue is the shortage and poor
quality of both underground and surface water.  Moreover, the
increasing level of pollution on both sides of the U.S. - Mexico
Border. 

27.       Human Rights: YES

     One of the most fundamental rights of a human being is to be
able to live in a healthy environment.  The conditions under
which these individuals along the border are live, are by any
standards violating this basic human right.  Unfortunately, these
people are of a low economic background and do not have political
power are sometimes seen as indispensable.  Moreover,  since
there is little scientific documented data attributing health
hazards with the Maquiladora projects  and emissions, we hear
little about this controversial topic.   

28.       Relevant Literature

Baker, Mark A.  "Debt-Equity Swaps and Mexican Law: The Interplay
     Between Law and Regulation."  Northwestern Journal of
     International Law and Business, Fall, 1988.
Burton, Eve.  "Debt for Development:  A New Opportunity for Non-
     Profit, Commercial Banks and Developing States."  Harvard
     International Law Journal, Winter, 1990.
McKeith, Melissa Hathaway.  Environmental Provisions Affecting
     Business on the U.S.- Mexican Border; The Bureau of
     National Affairs, Inc., International Environment
     Reporter Current Report; Vol. 15, No. 8, pg. 245, April
     22, 1992.
Our Common Future, Towards Sustainable Development, World
     Commission on Environment and Development.  Oxford
     Press, 1990.
Sinclair., Mark A., "The Environment Cooperation Agreement
     between Mexico and the United States: A Response to the
     Pollution Problems of the Borderlands." Cornell
     International Law Journal, Winter, 1986.  

                          References