Archive for June, 2009

UNESCO-IHP launches web-based “The Water Channel”

Monday, June 29th, 2009

In another sign that we are becoming more immersed in the communication age, UNESCO-IHE, along with partners, recently launched an interesting new on-line water video channel called “The Water Channel.”  As described on its website:

TheWaterChannel brings together several strands: insights in today’s water challenges, multimedia expertise and a passion for better water management and better water services for a growing world. Apart from the website, TheWaterChannel is a repository of visual water material and a media facility. TheWaterChannel provides the following services:

  • Hosting of videos on and their active promotion through local broadcasts, social media, real-time announcements and linkage to special target groups
  • Media management – management of video material within organizations, converting and processing (voice over, trailers and others), broadcasting and dissemination of new and old material
  • Theme development – bringing together videos on special themes, adding  supplementary material and special activities to bring the theme to the attention of a large audience
  • Support to awareness and educational campaigns and events – prepare background material, provide interactive services, live-streaming and others
  • Special productions – developing special videos or communication packages as well also video documentation and fact-finding using a network of contacts
  • Off-line services – compilation DVDs for educational purposes and others, where on-line access is inconvenient

This service could be a good way to organize all of the wonderful water-related video material currently scattered on YouTube and other video websites. It also seems a great way to aid NGOs and others to develop video material and to disseminate their information.

Correction to Last Posting on Ground Water and the US Supreme Court

Wednesday, June 17th, 2009

Looks like I jumped the gun. In my last posting, I said that the US Supreme Court has accepted its first dispute between two US States over transboundary ground water resources. In actuality, the case has yet to be filed with that high court. Apparently, in indulging my exuberance, I misread the news story. The 5th Circuit Court of Appeals in New Orleans had only affirmed the lower court’s dismissal of Mississippi’s 2005 lawsuit against Memphis and its use of water from a aquifer underlying both Mississippi and Tennessee. Because the US Supreme Court has original jurisdiction in the matter (as affirmed by the 5th Circuit), that is the only recourse available to Mississippi. But attorneys for that state have indicated that they are prepared to take the case to the higher court and stated that “Mississippi will get its day in court and Memphis will have to answer and account for its theft of Mississippi’s water.” In short, apologies for misleading anyone, and please stay tuned for updates on this still fascinating and potentially precedential case.

1st Dispute Over a Transboundary Aquifer to go to US Supreme Court

Friday, June 12th, 2009

Michael Campana recently updated his WaterWired blog with the news that the US Supreme Court recently accepted its first dispute between two US States over transboundary ground water resources (see his posting here, which links to his prior postings on the case). As Michael explains in an earlier post:

In a nutshell, the case boils down to Mississippi claiming that Memphis Light, Gas and Water (MLGW), the municipally-owned utility for the Memphis area (Shelby County), is deriving about 30% of the water it pumps from the Memphis Sand aquifer (aka the Sparta aquifer) from beneath Mississippi. This amounts to about 60 mgd (million gallons per day) coming from beneath the Mississipians’ land …

This is no nickel-and-dime lawsuit; the damages sought by Mississippi amount to $1 billion, and if the Memphis utility loses, it would be forced to reduce its pumping and obtain some of its water from the Mississippi River, which would entail the construction of an expensive water treatment plant.

Most of the “harm” to Mississippi occurs in DeSoto County [where] … [w]ell water levels there have been dropping … Mississippi contends that some of the declines are due to Memphis’ pumping and constitute “harm”. Memphis claims that its use is “reasonable” and not reducing the water availability in Mississippi.

The case originally pitted Mississippi against the City of Memphis (located in Tennessee), and Mississippi initially pursued the case in Federal District Court solely against Memphis. That court, however, ruled that the State of Tennessee was an indispensible party to the case and, because the case would involve a dispute between two US States, original jurisdiction rested with the US Supreme Court – the only court in the US permitted to hear disputes between US states (WaterWired also hosts a copy of the Federal District Court’s decision).

For purposes of international law, this case has great significance because of the jurisprudential impact that US Supreme Court principles and doctrines have had on international water law. For example, as Professor Steve McCaffrey explains in his quintessential book on the subject, The Law of International Watercourses, the keystone principle of international water law – equitable and reasonable utilization – is rooted, in part, in the US Supreme Court doctrine of equitable apportionment. Both concepts focus on the notion of equality of states under law, and both advocate equity in the allocation of benefits derived from transboundary waters. While there are important differences between the two doctrines (which would entail a law review article to explain; better yet, read Steve’s book), it suffices to say that US Supreme Court jurisprudence on interstate US water law has greatly influenced international water law.

Will the same occur for the law of transboundary ground waters? There is scant little precedence in US law on which the Court might base its decision other than cases on transboundary surface waters. While the analogy between the two water resources is certainly applicable and appropriate, this is new and unsettled ground for the Court to plow.

Might the Justices then turn to the law of other nations or of international law? Given the makeup of the Court, as well as the apparent disdain by some of the Justices for international law in US court decisions (recall Justice Antonin Scalia’s comments chastising the “arrogance” of U.S. judges who look to international law and decisions to support their opinions – see for example this Associated Press article), this is highly unlikely. Nonetheless, the Justices would be well served by reviewing the work of the UN International Law Commission in its work developing the Draft Articles on The law of Transboundary Aquifers. The Commission, lead by Special Rapporteur Chusei Yamada, spent six years researching and drafting principles of law that might be applicable to transboundary aquifers that traverse an international political boundary (Yamada’s reports, as well as those of the Commission’s Working Group on the topic, can be found here). (In the interests of full disclosure, I had the honor of serving on an experts group organized by UNESCO-IHP that assisted the Ambassador Yamada in his work on the Draft Articles.)

Ground water resources, for too many years, have been treated as the neglected stepchild of water law. This is especially true in a transboundary context but also in the domestic laws of many nations, including the US. The adage “out of sight, out of mind” comes to mind. The US Supreme Court has a great opportunity here to develop US jurisprudence and provide guidance for this nascent legal area. It also has a wonderful occasion to influence the evolution of international law in this area.

[See my updated supplementing this post here]

Supplement to UNEP Bangkok posting

Wednesday, June 3rd, 2009

In my last post, I referenced the work-product of the May 20-22, 2009, UNEP conference – Strengthening Transboundary Freshwater Governance: The Environmental Sustainability Challenge – in Bangkok, Thailand: the Bangkok Plan of Action and the Chair’s Summary of the Technical Segment containing the “recommendations for action to the High-Level Ministerial Segment.”  UNEP has yet to publish them, but here are scanned copies of the two documents distributed at the conference.