(Photo Credit: MaloMalverde, Wikimedia Commons) The recent decision by the U.S. Department of State to transfer roughly $5 million in security and counter-narcotics assistance from its Mexico counter-narcotics budget to its Peruvian budget raised eyebrows in Mexico City and Washington. The amount wasn’t the issue, as $5 million is just a fraction (15 percent) of U.S. counter-narcotics assistance to Mexico, and an even smaller proportion when compared to Mexico’s overall security budget. What was surprising was the basis for the decision – essentially the State Department’s determination that it could not, as required by law, report to Congress that Mexico was making sufficient progress on a range of human rights criteria.

U.S. security assistance to Mexico, usually packaged as the Merida Initiative, contains a provision governing human rights conditionality that is slightly different than that of traditional conditionality. Strictly speaking, Mexico is not subject to a traditional certification process. The U.S. funding language simply requires that the Department of State report to Congress on progress made on serious human rights cases. It then is up to Congress to decide whether to freeze the affected money. While the difference between a “report to Congress” and “certifying to Congress” progress on human rights cases may seem minor, it is deemed important because of Mexico’s sensitivities to being “certified” by another country, especially the United States.

Congress included a directive with the Fiscal Year 2014 U.S. Foreign Assistance bill that stated that 15 percent of counter-narcotics assistance to Mexico could be obligated only when the Secretary of State provided a written report to the Congressional Appropriations Committees outlining Mexico’s progress in four human rights areas. While human rights reporting requirements have been standard since the Merida Initiative began in 2008, the criteria were broadened with the 2014 funding bill. Congress added criteria requiring the Secretary to report on steps taken by the Government of Mexico to enforce “prohibitions against torture,” to promptly transfer military detainees “to the custody of civilian judicial authorities,” to devote government efforts to search for the victims “of forced disappearances,” and to investigate and prosecute those responsible.

According to a State Department official familiar with the issue, the Department was “unable to confirm that Mexico fully met all of the criteria in the FY 2014 appropriation legislation and thus did not submit the report (to Congress).” The State Department believed that Mexico had complied with earlier requirements, including those contained in the FY 2013 funding bill, and had taken significant legal steps, including instituting constitutional reforms, to improve the legal framework for human rights, but had not reported sufficient progress related to the expanded criteria accompanying the 2014 legislation.

The U.S. official underscored the Department’s belief that Mexico has “taken a lot of positive steps” on human rights and the Department’s expectation that Mexico would eventually meet the Congressional reporting requirement. But in the short term, the Department believed it was better to transfer the $5 million to Peru rather than to lose it altogether.

What is unusual about this decision is not the transfer of money, but the human rights aspects of the decision. In general, human rights concerns under the U.S.-Mexican bilateral relationship are handled strictly behind closed doors in the context of a “High Level Human Rights Dialogue.” While there have been occasions when the U.S. Senate has frozen security assistance money designated for Mexico based on human rights concerns, such “freezes” have always been lifted after discussions with Mexican officials addressing congressional concerns. This is the first time the State Department has simply redirected the funds to another country.

Ultimately, there are two important takeaways from this development. First, the State Department’s decision was precedent setting and sends an important, albeit low-key, message about U.S. concerns regarding human rights and the rule of law in Mexico. Historically, human rights have been important in the bilateral relationship, but have almost never been an impediment to bilateral trade, investment, or friendly relations. The State Department’s decision that it could not report progress to Congress on specific human rights criteria sends an important signal that human rights may not always be subservient to the overwhelming economic, cultural, and political ties between both countries.

Second, it appears that Mexico itself was more offended by a process that appeared to highlight human rights shortcomings than it was by the loss of $5 million in U.S. security assistance. This sum is a tiny fraction of Mexico’s defense budget and thus not a priority for Mexico’s Secretariat of National Defense (SEDENA) or Mexico’s Navy (SEMAR).

There is a closer and presumably more valuable relationship between the U.S. Northern Command and the Mexican military than between the latter and the U.S. Department of State – one that does not depend on or include reporting requirements on specific human rights criteria. It is reasonable to assume that the Mexican military felt no real need to comply with State Department requests for information. This highlights the inherent weakness of a human rights conditionality provision limited solely to State Department programs and the way in which U.S. Department of Defense programs can undermine congressional intent.