Radio Broadcast of Presentation: “Scarcity, Conflict, & Security: The Future of Water for Israel & Her Neighbors”

October 5th, 2009

A few months ago, I was invited to give a talk to the Jewish Federation of Greater Portland on Scarcity, Conflict, & Security: The Future of Water for Israel & Her Neighbors. A flyer on the program can be found here. A local radio station – KBOO FM – recorded the presentation and, supplemented with a follow up phone interview, have presented extended excerpts on their Shalom Portland radio show. The 35 minute broadcast can be heard via Shalom Portland website (under the audio tab) as well as here.

In this presentation, I focused on the resources available to both Israelis and Palestinians and the difficulties that such scarcity creates for the region. I also offered a brief discussion on possible mechanisms for enhancing the availability of water resources for both peoples. In addition, I discussed my brief role in track II negotiations over transboundary fresh water resources between civil society representatives from both sides. Those negotiations, held in Maryland last year, were arranged under the auspices of the Geneva Initiative, which recently released their complete model Israeli-Palestinian Peace Agreement. The GI’s model agreement incorporates annexes on all of the major issues dividing the two parties, including the one on shared water resources. You can find my comments on that annex here.

Geneva Initiative Releases Water Annex to Model Israel-Palestinian Peace Agreement

September 16th, 2009

Yesterday, September 15, 2009, the Geneva Initiative released its long-awaited Annexes to its Model Israeli-Palestinian Peace Agreement. Among the various annexes was one pertaining to water. While not the most legally artful agreement, the accord is a remarkable and positive development in the pursuit of peace between the two peoples.

Among the more interesting points is the recognition by both parties that they both possess rights to water in water resources that traverse their political boundaries. This includes the Mountain aquifer and its various sub-basins, the Coastal Aquifer, the Jordan River, and the Dead Sea.  This point has been a particularly important issue for the Palestinians who strive for nationhood and the respect due a sovereign people.  A related and equally crucial issue for the Palestinians is the acknowledgment in the accord by Israel that a “just and rightful” allocation of water between the two peoples requires a “re-division” of shared water resources in favor of the Palestinians. The Palestinians have long claimed that Israel has taken more than its fair share and ignored the Palestinians’ rights to the water in the region.

In response, Israel’s concerns about the contamination of its water supply are partly addressed in the provisions related to both parties’ obligation to void causing significant transboundary harm via shared waters. The definition afforded to the term “harm” in this provision is rather broad in scope and encompasses detrimental effects not only to people and property, but also to the natural environment. Israel has voiced considerable misgivings about the Palestinian’s ability to manage wastewater and other pollutants in the highlands of the West Bank (part of the presumptive Palestinian State).  This region is the recharge area for the Mountain Aquifer and any inflow of pollutants (which is already occurring to some extent) threatens Israel’s water supply in the lower reaches of the aquifer below Israel proper.

One other noteworthy provision in the Water Annex is the creation of a Joint Water Commission, which in its initial stage, would have some authority to adjust water allocations between the two states in response to “significant hydrologic and climatic changes.” What this may mean in practice remains to be seen, however, the creation of a joint commission composed of three representatives from each side with a voting “neutral chairman of another nationality” suggests a serious desire to develop a fair mechanism for cooperative water management and allocation.

Although a full analysis of the annex is beyond the scope of this simple posting, it suffices to say that the accord is a positive development in the search for peace in the region. That is not to say that the Water Annex (as well as some of the others) is not fraught with problems.  In fact, there are numerous inconsistencies and amalgamation of disparate concepts that will require refinement, harmonization and clarification.

Nonetheless, the document and the entire model agreement signal a willingness to compromise by both sides, at least on the part of civil society. As with all of the annexes spearheaded by the Geneva Initiative, this document is the product of negotiations by Israeli and Palestinian civil society members (rather than politicians or diplomats), every day people who were fed up with the unending stalemate at the official levels. By sidestepping the political process, they sought to avoid the rhetoric and seek a compromise in the spirit of fairness and mutual respect. Their efforts deserve recognition not only by the press, but also by their fellow citizens and elected representatives on both sides.

I must note that I had the honor of serving as one of a number of neutral advisers in the initial negotiations of what became the Water Annex. In addition, while all those involved in the development of this model water accord should be commended for their efforts, it is noteworthy that the Annex was prepared in memory of Palestinian, Dr. Fadia Daibes Murad. It is truly a fitting tribute to her efforts.

Why do so many governments oppose a human right to water?

August 3rd, 2009

The voices championing a human right to water seem to be getting louder, and many national governments are being openly chastised for a lack of leadership, vision, and responsibility (see, e.g., PLOS Medicine’s editorial declaring “Clean Water Should Be Recognized as a Human Right”; the Pacific Institute’s Peter Gleick’s article on The Human Right to Water; Maude Barlow’s “A UN Convention on the Right to Water An Idea Whose Time Has Come). At the World Water Forum held this past March in Turkey, for example, more than 20 countries challenged the Ministerial Declaration for failing to define water as a human right and opting instead to describe water as a human need (see Council of Canadian press release). Yet, countries like the United States are holding steadfast that “there is at present no internationally agreed right to water or human right to water, and there is no consensus on what such a right would encompass” (see ENN Article).

 

Why do governments – such as those of the United States, the European Union, Brazil, Canada, and Egypt (see ENN Article) – oppose the notion of a human right to water? What is it about such a right that contravenes so many countries’ national interests?

 

Is it a concern that fresh water resources would be squandered under governmental control, or the corollary ideology that the private sector could provide water to the masses more effectively than any governmental scheme? This is the justification espoused by many non-governmental opponents of the human right to water who typically commend the virtues of the free market and private sector for managing the world’s fresh water resources (see, e.g., the work of Fredrik Segerfeldt here and here, articles in The Economist here and here, and an article by Fortune Magazine’s Marc Gunther writing for The Huffington Post here).

 

According to the US position:

“Establishing an international right to anything raises a number of complicated issues regarding the nature of that right, how that right would be enforced, and which parties would bear responsibility for ensuring these rights are met … To date, there have been no formal intergovernmental discussions on these issues. It would therefore be premature to agree to such a right” (see ENN Article).

 

To a large extent, this sounds more of an academic or procedural debate rather than a substantive national concern. And as strenuously as it is asserted by countries like the US, its tone rings more of pretext rather than of meaningful explanation.

 

While there is much to be said about pursuing the formalities of international law, I suspect that governmental trepidation over a human right to water is based on a more elemental concern. Nations and governments are likely troubled by the responsibility and liability that would be associated with a human right to water. In other words, they are afraid to fail; afraid of being accountable if they fall short of the obligation that would accompany a right to water. Given the enormity of the problem, though, that may be an understandable concern. According to a 2008 report by the World Health Organization (WHO) and the UN Children’s Fund (UNICEF), there are some 884 million people globally without access to clean drinking water and more than 2.5 billion who lack access to minimal sanitation services, all of which results in millions of deaths every year directly attributable to these deficiencies. These are staggering numbers, numbers that many governments might want to sweep under the rug. And the US is no exception – in 2000, there were nearly two million people without access to basic water and sanitation services (see the report by the Rural Community Assistance Partnership).

 

The concern, however, is probably also propelled by the projected costs associated with ensuring clean and safe water for everyone globally. According to a study in the WHO’s Bulletin, the cost of attaining the Millennium Development Goals (adopted in 2000) for water and sanitation (to “halve by 2015 the proportion of people without sustainable access to safe drinking water and basic sanitation”) would require the world community to invest some US$70 billion annually between 2005 and 2014. Considering the principle of diminishing marginal returns, the cost of guaranteeing clean and safe water for everyone on the planet would likely be far more than double that figure.

 

Recognizing and ensuring a right to water will certainly not be an easy undertaking.  There are likely to be considerable social and political costs, as well as economic ones. Nonetheless, upholding a human right to water may actually be in the best interests of nations and governments around the world. As an issue of responsibility, many nations – in both the developed and developing worlds – already guarantee human, civil, and social rights and entitlements that impose considerable obligations on their governments, from public health guarantees to worker protections to lifeline utility rates. And all too often, these nations (including those in Europe and the United States) find themselves short of the mark. Yet, these regimes face their failures, often by the strength of their citizenry, and they endure. And in the ultimate calculus of social development, they are better off for it, for that is the essence of democracy.

 

Moreover, implementing and enforcing a human right to water could actually yield considerable economic advantages. According to Ms. Catarina de Albuquerque, the UN Independent Expert on the issue of human rights obligations attached to access to safe drinking water and sanitation, the return on investments in proper sanitation alone may be as high as 9 to 1 (see statement of de Albuquerque). These include benefits associated with improved human health and reduced public health care expenses, improved worker productivity, and more stable markets. A similar appraisal of expanding fresh water availability to those without would likely reveal analogous returns on investment.

 

Although the notion of a human right to water seems so fundamental and instinctive, the fact that we debate its existence often seems inimical to our own existence. Yet, in most of our communities and nations, we consider life extraordinary and deserving of protection, at least from the vagaries of human action. If each human life is so singular and so vital, the debate over the human right to water should focus on how best to achieve the right rather than on the fallibility of government to succeed in its implementation; it should address the issues of costs and compliance with such a right rather than its theoretical existence or absence; it should consider the implications of a right to water for countries’ national interests and objectives rather than the niceties of international law.

 

While certainly a cliché, water truly is life. For without water, life as we know it cannot exist. It is time that governments and nations reassess their national interests, face their responsibilities to their peoples, and think seriously about a human right to water.

 

See also my prior post on Water Marketing v. Human Rights.

Terry Spragg Comments on Water, Peace and the Middle East

July 29th, 2009

Terry Spragg, inventor of the Spraggbag, sent me an e-mail responding to my previous posting on Water, Peace and the Middle East. I thought it worth sharing.

 

Dear Gabriel,

 

Using waterbag technology to transport Turkish water to Israel and Palestine can eliminate many of the political and economic issues raised in your recent editorial, and by Dr. Shuval, in your comments on the excellent NEW YORK TIMES editorial, “Water for Peace” (July 13, 2009) written by Stanley Weiss.

 

(Your readers can visit YouTube and insert the words, “Spragg Bag” in the selection box to see a video of television news coverage of a demonstration of this technology, or link to www.waterbag.com for photos and more information.  For more a more detailed analysis of the economic and political possibilities that will result from a successful waterbag operation in the Middle East, your readers may want to read the selections from the novel, WATER, WAR AND PEACE, that appear on this website.)

 

“Spragg Bag” technology can be visualized as a modular fabric pipeline that can easily and inexpensively move large quantities of water through the ocean in an environmentally safe manner, using large waterbags connected together in long waterbag trains with the world’s strongest zipper.  Waterbag economics are easy to calculate.  Waterbag technology is easy to demonstrate.  It is the politics of waterbag technology that is the most difficult issue that needs to be addressed.

 

As Prime Minister Netanyahu has correctly analyzed, Peace will not come to the Middle East without the development of a viable Palestinian economy.

 

A viable Palestinian economy cannot be developed without a reliable and economic water supply.

 

Transporting Turkish water to Israel and Palestine using waterbag technology is the least expensive and most politically viable way to develop a new water supply for the region.

 

This is an easy and inexpensive theory to demonstrate and calculate.

 

Dr. Shuval’s $0.50/m3 cost for desalinated water produced at the Ashkelon plant does not include capital costs, which would almost double this $0.50/m3 cost for desalinated water.  An email from Saul Arlosoroff (Director of Mekorot and Chairman of its Finance/Economic Committee) to David Brooks (Friends of the Earth, Canada) confirms this statement.  The Ashkelon plant received special financing considerations and natural gas concessions which are not available for the development of the new desalination plants currently under construction and being proposed in Israel.

 

Using Dr. Shuval’s economics, waterbag technology could deliver water from Turkey to Israel and Palestine in the $0.30/m3 to $0.40/m3 range.

 

Israel would prefer not to rely on Turkey as a source for some of its water supply.  All nations would like to be water independent.  However, military and trade relations between Turkey and Israel remain strong (setting aside the brief discussion between Erdogan and Peres at the recent World Water Forum in Israel).

 

Israel transports most of its energy from sources outside its boundaries using the seas.  Water transports using the seas should be no different.  The United States seems to be willing to protect Israel’s energy supplies.   Protecting Israel’s water supplies should be no different.

 

Israel proposes to build desalination plants to produce water for the Palestinians.  If the Palestinians are expected to rely on Israel for the development of a new water supply it would seem that Israel should be comfortable in relying on an outside source for a portion of its water supply. 

 

Waterbags delivered directly to the Palestinians can avoid this dependency issue.  The United States should commit to defending both these water supply transport systems in the name of national security.

 

Israel can use shipments of Turkish water directly to the Palestinians as a test case for Israel’s analysis of the economic and technical reliability of waterbag technology before it makes a commitment to purchase Turkish water.

 

The Palestinian concern that by accepting water from another source before it resolves its dispute with Israel over control of the West Bank and Gaza aquifers can be put to rest by using waterbag technology.  Israel should agree that transporting Turkish water to Palestine is only a test case to prove the economic and technical reliability of waterbag technology for both parties.  The acceptance of Turkish water by the Palestinians should have no relationship to the current dispute between the Israelis and the Palestinians over the water in the West Bank and Gaza aquifers.

 

As the drought in the Middle East continues this argument should gain more acceptance by both parties.

 

Past failures of waterbag technology can easily be overcome by implementing a demonstration voyage of “Spragg Bag” technology between Turkey and Israel.  This demonstration voyage plan has been presented by Gershon Baskin (co-founder [1988] of the Israel-Palestine Center for Research and Information [IPCRI], and a representative of Spragg & Associates) to various Israeli, Turkish, Palestinian, Jordanian and American government and business representatives.  If the political leaders in the region will publically announce their support for a demonstration of “Spragg Bag” technology in the Middle East to the media, then a demonstration of this technology should be able to be implemented with ZERO COST to the region’s governments.

 

Stanley Weiss is 100% correct in calling for the United States to take a leadership role in helping to develop a secure water supply for the Israelis and the Palestinians.  Water is becoming the most critical national security issue facing the nations of the Middle East, and therefore a critical national security issue for the United States.

 

The insidious nature of drought in the Middle East poses a major challenge for America’s security interests throughout the region.  American political and business leaders must be wise enough to anticipate these events.

 

As the drought in the Middle East continues, and recognizing that water may become the most explosive issue to be faced between the Israelis and the Palestinians, perhaps the Business Executives for National Security, lead by Stanley Weiss, will be able to take an active leadership role in gaining America’s political and technical support for demonstrating how water can be transported as a tool for helping to bring “Water for Peace” in the Middle East.

 

Terry also sent me a number of documents related to his comments. These include:

·         a letter from Israeli President, Shimon Peres to Terry;

·         a letter from research engineer, Cliff Goudey, of the MIT Sea Grant College Program to Terry regarding the control and stability of navigating such large bags across oceans;

·         a number of press clipping on the possible transport of water from Turkey to Israel and the Palestinian Territories; and

·         an e-mail from IPCRI’s Gershon Baskin to Terry discussing his July 2008 meeting with the Head of the Palestinian Water Authority, Dr. Shaddad Atilli.

Water, Peace and the Middle East

July 23rd, 2009

In a recent New York Times Op-Ed, Stanley A. Weiss offers a grave perspective of the water situation in the Middle East. He writes that “the region is headed toward a water calamity that could overwhelm all efforts at peace.” Ominous words, but sadly, true.

Weiss, however, also offers a prescription for averting the tragedy.  Among his recommendations, water-rich Turkey should become a purveyor for the parched nations of the Middle East, including Israel, Jordan, Syria, the future Palestine, and possibly others. While such solutions have been proffered in the past, couched in the language of “peace pipeline” and “water plan for peace,” the politics of the region have always thwarted their realization. My sense is that they will continue to do so into the future.

While Turkey does have prodigious amounts of water in relation to its land area and population, and certainly in comparison with its neighbors in the Middle East, transporting water from Turkey to where it is needed will require negotiations of Herculean proportion. As Weiss notes, a water carrier from Turkey will have to run through Syria and possibly Lebanon. Unfortunately, neither of these nations is known for their stability or international cooperation.  In particular, the ongoing tensions between Syria and Lebanon (e.g., over the murder of Former Prime Minister Hariri), Syria and Israel (e.g., over the Golan Heights), Lebanon and Israel (e.g., over Israel’s 2006 conflict with Hezbollah), and Israel and the Palestinians (e.g., over security, human rights, and independence) make any cooperation over water seem illusory.

Yet, it must be stated that the reason that such a scheme is unlikely to materialize anytime soon is not just because of regional politics. It is also due to a historically ingrained lack of trust among the region’s countries. In order to implement the Turkish water solution, the nations of the Middle East would have to become comfortable being dependent on Turkey having ultimate control over an indispensible resource. Iraq’s and Syria’s ongoing water relations with Turkey suggest anything but comfort with Turkey’s management of the Euphrates and Tigris Rivers (see my prior post). Similarly, given the route of the water carrier, some nations would also have to be reliant on the amiability of countries in whose territory the carrier would run.

It has been said multiple times: water is life. Without it, life ceases to exist. Hence, the question: what country would willingly place its life, its peoples’ lives, in the hands of a neighbor, especially one who may be unfriendly? I suppose nations in Europe and North America might be more inclined to accept such a precarious situation in order to ensure their water supply. These, though, are nations with a history of cooperation over security, shared resources, migration, and other issues. I have my doubts, however, about the nations of the Middle East. With their long record of enmity and conflict, any accord that creates dependency would necessitate a significant calamity (such as widespread famine), immense international pressure, or some advantage that the subordinate State could not refuse (no, I cannot think of any examples).

Pessimism aside, Weiss’ other recommendations do hit the mark. Israel should be convinced to share its water expertise and technology with its Arab neighbors. Israel has long been a leader in water management techniques and technology and such an overture would not only help alleviate water scarcity problems in the region, but also serve as a basis for further cooperative opportunities. The U.N. also should mobilize a global effort to improve desalination efforts to make them less expensive, less energy intensive, and more environmentally friendly. Lastly, a new effort on water management should be brokered between Israel and the Palestinian Authority to replace the failed Joint Water Committee.

In addition, though, steps must be taken to overcome the inherent lack of trust shared by the region’s nations as it relates to fresh water. Specifically, Europe and the U.S. should embark on a new strategy with Israel and the Palestinian Authority, and with any other nation in the region willing to exchange peace for water, for a comprehensive plan for water management and provision. Such a plan should have two main tenets.

First, the plan should be based on the undeniable reality that there just is not enough water in the Middle East to support everyone’s population, developmental, and environmental needs. There is a dire need to develop new sources of freshwater through desalination of sea water and brackish aquifers, treatment and reuse of grey water (non-industrial wastewater generated from domestic processes), and the capturing of rain and flood waters that otherwise go unused. Hence, a key aspect of the plan would be to generate financial, technical, and management support from Europe, the U.S., and elsewhere to pursue these new water opportunities. It would also involve assistance in developing the necessary infrastructure needed to deliver the water to where it is needed.

The plan also would be founded on the principle that, to the extent possible, no nation should have the ability to control the flow of water into another nation. While the elimination of all control factors is likely unattainable, the reduction of some measure of countries’ dependence on water resources originating or flowing from neighboring states will go a long way to lessening both water stress and political tensions. This principle would be implemented through two alternate but not mutually exclusive approaches. The first approach is through the creation of bilateral or multilateral water management and allocation institutions that have some degree of independence in their operation. Existing institutions that might be look to as models include, among others, the Mexico-US International Boundary and Water Commission, the Franko-Swiss Genevese Aquifer Management Commission, and the Council of Ministers and High Commission of the Organization for the Development of the Senegal River. Preferably as a complementary approach, but possibly as an alternative approach if the institutional strategy is deemed unworkable, the second tactic would pursue the augmentation of local water opportunities in each country as well as the reassessment of access points and allocations of transboundary waters to provide each nation with enhanced water security. For example, desalination on the Israeli Mediterranean coast would be expanded to benefit Israel in exchange for the Palestinians receiving a greater share of the Mountain Aquifer in the West Bank. A similar approach could be employed between Israel and Jordan on the Jordan River.

Weiss’ warning of the coming “water calamity” in the Middle East cannot be overstated. Water is a life issue. But, it is also subject to political, economic, and security concerns, climatic variability, and a host of societal, national, and international interests that threaten to overwhelm any effort to achieve a lasting peace in the region. Although water could certainly serve as a basis for peace in the Middle East, success will hinge on generating a level of trust and cooperation that has yet to be seen in the region.


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Law of Transboundary Aquifers to be discussed at Stockholm World Water Week

July 6th, 2009

UNESCO-IHP, along with others, is organising a seminar during the upcoming Stockholm World Water Week on Sharing an Invisible Water Resource for the Common Good: How to Make Use of the UN General Assembly Resolution on the Law of Transboundary Aquifers (TBA).” This looks to be a fantastic event and line up of speakers.

 

In preparation for the seminar, the organizers have launched an internet debate to allow contributions from the rest of us. Those contributions will be compiled in a final report and presented during the seminar in Stockholm. Brief comments, thoughts, and case studies can be sent to IHPSeminarWWW2009  “at”  unesco.org.

 

The following is my own initial contribution:

 

One of my concerns related to the Draft Articles on the Law of Transboundary Aquifers pertains to how nations, organizations and others view the articles. To many, I suspect the articles represent the law by which to judge the actions that States may take vis a vis transboundary ground waters (e.g., did the State comply with the legal obligation). And the emphasis is likely to be on the substantive articles of equitable and reasonable utilization (Draft Art. 4); no significant harm (Draft Art. 6); prevention, reduction and control of pollution (Draft Art. 12), etc. In order to employ these principles to their fullest extent, though, they would be applied ex post facto – after a particular action is taken that results in an alleged claim of violation. This is because the objective determination of what use may be equitable and reasonable, or whether a particular project will significantly harm another state, etc., is, at best, a very difficult exercise where the equity and reasonableness of a water use, or the magnitude of the harm, are mere projection.

 

What I hope is not neglected, thought, is the fact that the Draft Articles are also (or, more so) intended as proactive procedures designed to help nations manage their transboundary aquifers in ways that prevent waste and neglect and, especially, avert disputes among aquifer riparians. Some of the more significant include proactive procedural articles that could easily be implemented prior to or during the implementation of an aquifer-related project, including Draft Art. 8 (Regular exchange of data and information); Draft Art. 9 (Bilateral and regional agreements and arrangements); Draft Art. 13 (Monitoring); Draft Art. 14 (Management); and Draft Art. 15 (Planned Activities). Doing so would likely prevent subsequent violations of the substantive rules. Accordingly, I hope that States, IGOs, NGOs and others place greater emphasis and attention on the procedural provisions of the Draft Articles as a means for encouraging cooperation and collaboration, and for preventing dispute over shared waters.

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

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 www.thewaterchannel.tv 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

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

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

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.