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  • Writer's pictureCorinne Atton

Draper & Draper Files Amicus Curiae Brief Concerning Transboundary Groundwater

Three original jurisdiction interstate water cases are currently pending before the United States Supreme Court. One of these cases, Mississippi v. Tennessee, Orig. 143, raises a particularly important question of first impression for the Court, that will become increasingly pertinent as transboundary freshwater sources face climate change stress:

· Should interstate groundwater be subject to the Court's “equitable apportionment” doctrine?

On November 5, 2020, Special Master, Eugene E. Siler, Jr. of the U.S. Court of Appeals for the Sixth Circuit, issued a Report recommending that the Supreme Court answer this question in the affirmative. The State of Mississippi and the State of Tennessee have filed Exceptions to this Report.

Matthew Draper, John Draper and Corinne Atton of Draper & Draper filed an amicus curiae brief, in support of neither party, on behalf of the International Law Committee of The New York City Bar Association.

Draper & Draper's brief urges the Supreme Court to consider principles of international law when determining this issue, and in particular, to consider certain provisions of the United Nations 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses ("UN Watercourses Convention") and the United Nations International Law Commission 2006 Draft Articles on the Law of Transboundary Aquifers ("2006 Draft Articles").

The UN Watercourses Convention is a framework treaty that codifies existing norms of customary international law as they apply to the use of international freshwaters. The 2006 Draft Articles are an authoritative application of these principles to groundwater. Draper & Draper’s brief highlights that internationally, states have long wrestled with the issue currently pending before the Supreme Court, and urges the Court to consider the principles set out by the international legal community when resolving this same issue.



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