Dispute Resolution and the Treaty of Guadalupe Hidalgo: Parallels and Possible Lessons for Dispute Resolution Under NAFTA (1998)

This article seeks to briefly discuss the experience of Mexicans and their Mexican-American heirs in litigating their rights under the Treaty of Guadalupe Hidalgo. It seeks to ask whether there may be any parallels and possible lessons to be learned from the litigation experience of Mexican claimants under the earlier Treaty for the NAFTA parties - especially Mexico - as the NAFTA parties engage in dispute resolution. Part II of this article sets out the background of the Treaty, including a brief review of the United States-Mexican War. It describes the terms of the Treaty and observes that Mexico had unequal bargaining power when it negotiated the Treaty with the United States. It describes how the Treaty sought to protect the rights of the former Mexican citizens in the conquered territories but was ultimately unable to do so. In seeking to litigate their rights under the Treaty, the dispute resolution process generally failed to protect Mexican claimants and their heirs. Through a variety of legal devices, the promises of the Treaty were devalued. In particular, implementing legislation undermined the property rights protections in the Treaty. It did so by, among other things, requiring Mexican claimants to assume the burden of proof in proving the validity of their titles and negotiate a maze of legal requirements in a foreign legal system and in a language that was foreign to them. The implementing legislation also established what might be viewed as alternative dispute resolution to resolve claims, e.g., the office of the surveyor general. These alternative tribunals sometimes created difficulties for the Mexican claimants. Similarly, the Treaty failed to protect full membership rights in American society to persons of Mexican ancestry. For all these reasons, the promises of the Treaty were minimized and devalued. Part III of the article explores parallels between the NAFTA dispute resolution process and the dispute settlement process of the Treaty of Guadalupe Hidalgo. In this regard it notes that just as with the earlier Treaty, Mexico negotiated the NAFTA from a very weak bargaining position. As a result, just as the United States had virtually dictated the terms of the Treaty of Guadalupe Hidalgo, the United States imposed conditions on Mexico in the NAFTA. In the dispute resolution context, Part III explains that this means that the United States imposed on Mexico, especially in the NAFTA Chapter 19 areas of antidumping and countervailing duties, procedural rules based on United States procedural law. By so doing, the NAFTA dispute resolution process may generate a number of difficulties for Mexico that parallel problems that Mexican claimants experienced in litigating their rights under the earlier Treaty. Among these are difficulties arising from language, the unique burdens that are experienced by one who must litigate in a foreign legal system, i.e., the NAFTA dispute resolution process which is based on Anglo-Saxon notions of procedure, and misunderstandings of Mexican law by North American panelists. In the course of the discussion, part III also points out that in constructing the NAFTA dispute settlement procedures, Mexico was treated in ways that parallel the dominant society's treatment of Mexican-Americans in the years since the Treaty of Guadalupe Hidalgo. Part III also explains that the NAFTA dispute resolution procedures may be viewed as alternative dispute resolution. It argues that Mexico will likely experience difficulties in the NAFTA alternative dispute resolution regime in light of its position as a relatively weak disputant. This generates another parallel: Mexican claimants experienced difficulties arising out of the alternative dispute resolution-like system established under the Treaty of Guadalupe Hidalgo. Given all of this, part III concludes that there is reason to think that the NAFTA dispute resolution process may put Mexico at a disadvantage just as the earlier Treaty of Guadalupe Hidalgo dispute settlement process placed Mexican claimants and their heirs at a disadvantage. In this regard, part III notes that an analysis of the early results of the NAFTA dispute resolution process shows that Mexico has fared the least well of the three NAFTA countries.